Falklands : Legislative Council Report Part 1 (28/07/06)
Submitted by Falkland Islands News Network (Juanita Brock) 31.07.2006 (Article Archived on 14.08.2006)
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LEGISLATIVE COUNCIL: FRIDAY 28 JULY 2006 REPORT
By J. Brock (FINN)
A meeting of Legislative Council Took place at 1030hrs on Friday, 28 July 2006 in the Court and Council Chamber of the Town Hall. Present were the Speaker, the Hon Mr. Lewis Clifton (LC), Cllrs Clausen (AC), Summers (MS), Robertson (JR), Rendell (MR), Hansen (IH), Cockwell (RC), and Davies (RD), the Attorney General, Mr. David Lang QC (DL) and the Financial Secretary, Mr. Derek Howatt (DH).
After prayers by the Rev. Kathy Biles of Christ Church Cathedral, confirmation of the minutes of the meeting held on the 24th and 25th of May 2006 was signed by the Speaker.
PAPERS:
The following papers were laid on the table - copies of Subsidiary Legislation published in the Falkland Islands Gazette since the last sitting of the Legislative Council and Laid on the Table pursuant to section 34(1) of the Interpretation and General Clauses Ordinance 1977.
- Plant Importation (Amendment) Regulations 2006
- Air Navigation (Fees for Certificates and Services) Regulations 2006
- Capital Equalisation Fund (No 2) Order 2006
- Customs (Fees) Regulations 2006
- Canache (Mooring of Watercraft) Development (Amendment) Regulations 2006
- Wearing of Seat Belts (Prescribed Roads)(Amendment) Regulations
- Customs (Fees)(Amendment) Regulations 2006
- Coins (Amendment) Order 2006
- Post Office Order 2006 (Correction) Order 2006
- Murrell River Fishing Regulations 2006
FIG Financial Statements for the Currency Fund, Pensions (Old Scheme) Fund, Insurance Fund, Sinking Fund and the Capital Equalisation Fund for the year ended 30 June 2005 and the Retirement Pensions Equalisation Fund Statements for the year ended 31 December 2004, laid on the Table pursuant to section 57 of the Finance and Audit Ordinance.
QUESTIONS FOR ORAL ANSWER
Question Number 11/06 by The Honourable Mike Summers:
Would the Attorney General please advise, given that it is illegal to smoke under the age of 16, whether it is also illegal to be in possession of cigarettes under the age of 16, whether there is any provision in Falklands law for the police to confiscate and destroy any cigarettes in the possession of a person under 16, and whether provision exists or could be made for schoolteachers to confiscate and destroy cigarettes taken onto school property by persons under the age of 16?
Answer By the Attorney General Mr. David Lang QC:
Mr. Speaker and Honourable Members, under section 90 of the Licencing Ordinance, it is unlawful for any person to sell any tobacco to any person who he knows or has reasonable cause to suspect is under the age of 16.
Under the same section it is unlawful for any person under 16 to consume tobacco in any way. And, a Police Officer may, with the use only of such force as is reasonably necessary in the circumstances of the case, seize any tobacco, which he finds in the possession, in a street or other public place of a person, whom the Police Officer reasonably suspects to be under the age of 16.
Any such tobacco seized is to be delivered to the Chief Police Officer or as the Chief Police Officer may direct.
It is not an offence for a person under the age of 16 to be in possession of tobacco – that is to say, other than in a street or other public place. Nor is it an offence for any person to give any tobacco to a person under the age of 16.
A school teacher has no statutory power at present to seize Tobacco in possession of a pupil on school premises or elsewhere. However, in my view, a teacher has a common law power to seize tobacco in a pupil’s possession on school premises. He has, in my view, such power in performance of his duty as a teacher at common law to take such care of children in his or her charge as a careful parent would take of his or her children. In my view, such a parent would not permit his or her child under 16 to smoke or be in possession of tobacco.
Statutory provision could be made conferring power on teachers and, if wished, others in charge of persons under 16 to seize and destroy tobacco in possession of them.
Thank you, Mr. Speaker.
Supplementary by the Hon. Dr. Richard Davies:
I wonder if the Attorney General could just clarify the taking of tobacco under common law. Would that be the same principle as confiscating a mobile phone and giving it back after class?
DL: I don’t think the analogy is a good one. Tobacco in the possession of a person under 16 is prohibited. It is a prohibited substance as far as they are concerned. A mobile phone is not, as such, a prohibited thing. It is simply contrary to school rules to have a mobile phone in one’s possession. But I can see why people would think of it in that way. But I think there is a distinction to be made. Thank you.
JR: I was just wondering if you could clarify in a situation where a teacher does remove tobacco off a child in school, I just want to be sure that the child would have no recourse in law against the action of the teacher?
DL: In my view, not.
MR: I would just like to ask the Honourable Attorney General what the law on this subject would be in the UK for under 16 year olds? Are children allowed to be in possession of tobacco under the age of 16 in the UK?
DL: I am unable to answer that question at this moment. If the Honourable member wishes, I will deliver a reply to that in writing.
MR: Accepted. Thank you.
Question Number 12/06 by The Honourable Dr Andrea Clausen:
Could the Honourable Janet Robertson please inform this house as to the specific limits in place on the import of personal tax free goods when arriving by air?
Answer by the Honourable Mrs Janet Robertson:
The following customs allowances were published in the 02 May 2003 edition of the Penguin News:
Alcoholic Beverages for persons aged 18 years of age or older: 1 litre of spirits exceeding 22% alcohol by volume, or 2 litres of spirituous beverages not exceeding 22% alcohol by volume. And, 2 litres of still table wine or sparkling wine and 10 litres of beers, cider or similar beverage.
Tobacco products for persons aged 16 or over: 200 cigarettes or 50 cigars or 100 cigarellos or 250 grams of tobacco.
The above extra statutory discretionary allowances have applied in the Falkland Islands for more than 25 years, in respect of goods intended for personal consumption, contained in the personal luggage of individuals entering the Falkland Islands.
I would just like to clarify what that means. Under section 120 of the Customs Ordinance 2003, the Governor may, by order, make provision for release from duty including goods which may have been obtained outside the Falkland Islands and contained in the personal luggage of persons entering the Falkland Islands. It was intended for travellers allowances order relating to person release from duty on goods in respect of travelers arriving in the Falklands from overseas to come into force soon after the commencement of the Customs Ordinance 2003. However, when the relevant order was being drafted by the Attorney General it was discovered that the different classes of alcoholic beverages as defined in the replacement customs ordinance were conflicting and therefore these and the corresponding duty tariffs would require thorough provision prior to a traveller’s allowance order being completed. By reason that the classification and categorisation of alcoholic beverages is actually very complex, the required revisions have not, to date, been affected, as it is considered to be of low importance on the Attorney General’s prioritised legislative drafting schedule as agreed by Executive Council. I just want to clarify that this means the duty free allowances we have are discretionary and not stated in law.
AC: I would further like to clarity whether or not under these discretionary powers it is possible to bring in, for example, a litre for the spouse. Is that against the law as it stands?
JR: Sorry?
DL: If the honourable member would like me to answer the question, the present allowances for personal consumption. I don’t think anybody is going to argue that if you bring it in for your spouse it isn’t – that you shouldn’t bring it in. But the present allowance is for personal consumption and the law provides when there is going to be discretion. If an order was made it would be an order permitting things to be brought in for personal consumption.
AC: (Thank you) I have one further supplementary. I would like to ask the Honourable Janet Robertson in the event that items are confiscated because they are above the discretionary allowance, what actually happens to those confiscated items?
JR: Goods can be seized and, where dutiable goods are found concealed in a person’s luggage and not declared to the customs officer in attendance is considered an offence, the accounting procedures for that, where goods are either retained or seized the passenger to which it applies is entitled to a formal numbered receipt, which also contains the Customs Department’s contact information. The relevant officer is also able to take note of the reason for retaining or receiving the goods in question. A departmental register is kept in respect of all retained and seized goods, which are subject to regular departmental checks and by the Government’s Internal Auditor. In respect of retained goods, unless the owner of the goods makes representations for their return or makes payment of the applicable duty within 30 days, the goods are forfeit to the Crown. Seized dutiable goods are forfeit to the Crown after a period of 2 days has elapsed unless the owner of the goods has made representation to the senior magistrate or when there is to be a prosecution for the goods in question forming part of the evidence when proceedings have been concluded. The disposal of dutiable goods deemed forfeit to the crown are either disposed of or being destroyed under the instruction of the Collector of Customs or as he may be directed by the Chief Executive on occasion and in instances where the Court has an involvement as directed by the Court on conclusion of the proceedings.
AC: Just to confirm that the goods that are seized by the crown are actually destroyed. Am I correct in understanding that?
JR: That is my understanding.
MS: Can I ask the Honourable Member if she is aware or can tell the House what the current practice is of Customs Officers at border posts in the Falklands? Do Customs Officers routinely ask people if they smoke when they are declaring cigarettes? Do they routinely ask people if they drink when they are declaring alcohol?
JR: I think the normal practice is not and the assumption is that people are bringing goods in and, when declared, they are bringing them in for their own personal use. However, I understand that if they are made aware either advertently or inadvertently that a person bringing in goods, which are clearly not for them or their household and this is stated clearly that the Customs Officer has a duty to seize those goods. That is my understanding.
RC: If I could just get a point of clarification, am I correct in assuming that this question is asked about goods arriving by air, this actually refers to all items arriving in the Falklands and not just by air? Is that correct?
JR: I understand that to be the case.
(The Attorney General Confirmed this.)
MR: I would like to ask the Honourable Member if she would agree that this is a very confusing issue for a lot of people? Many people are not aware of the rules and regulations. OK, it was put in the Penguin News three years ago but would she not agree that it would be useful to have a poster at Mount Pleasant Airport at the arrivals and departures lounges so that people, when they arrive or depart – more particularly before they bring it back, know what the allowances are and know the actual situation pertaining to import of duty free allowances?
JR: I absolutely 100% agree. I think it would be useful to have these figures published. I thing the discretionary allowances should be publicised more and there should indeed be a poster so people coming in MPA can see exactly what the nature of the allowances are and especially clarification with regard to the issue of personal use and that you are actually committing an offence if you are bringing in something intended for someone else, using your own personal allowance.
Question Number 13/06 by The Honourable Dr Andrea Clausen:
Could the Honourable Richard Cockwell please advise this house as to what plans are in place for the management of the Eliza Cove refuse tip?
Answer by the Hon. Cllr. Richard Cockwell:
RC: Mr. Speaker, Honourable Members, It is unfortunate that the Director of Public Works was absent from the Islands when this question was received, as he has the issues of waste management in all aspects very high on his agenda and keeps a close interest in this important issue both at Eliza cove and Marry Hill sites. I will attempt to give a comprehensive reply and I am indebted to Mr. George Burroughs for giving me up to date information.
It’s accepted that it is difficult and sometimes unpleasant to access the tip and dispose of their waste. Plans are underway and materials are being stockpiled to make a stone access run to the facility for dropping waste into a collection area, thus avoiding the compactor having to damage the access area. There has recently been an approach through the Press and the Chamber of Commerce with the view of increasing awareness of the problems and minimising and controlling waste generated by commercial sectors. This has only had moderate success although I should complement at least one retailer who has taken the issue seriously and stopped issuing free plastic carrier bags as an attempt to control their waste disposal. There may be others but I am unaware of them at this stage.
Planning permission has been obtained for 3lidded skips to be placed at an easily accessible spot thereby reducing the need for the public to access the tip. New measures have been put in place to manage the disposal of batteries and other hazardous waste and the recording of any buried hazardous waste. I am hoping to have further discussions with the Director on his return about the continuing problems of plastic and light waste blowing away from the tip. The problem of plastic clinging to minefield fences is a real one and one that needs to be addressed.
It’s obvious to everybody that the Eliza Cove site has a limited life and thus it is my intention to bring forward the discussion involving the Public Works Committee and hopefully the Environmental Planning Officer and other agencies to instigate plans for a new site and the future control and disposal of waste.
Once proposals have been formulated it will be necessary to involve all Councillors in approving these plans and allocating the necessary funding.
AC: I would just like to get a timeline on that. I think you said the skips are in place now. I would just like to confirm that they are if you have a time line on when there will be a ramp in place because there are clearly issues with a number of individuals trying to drop off their own personal rubbish – so just to see if you have any ideas on time.
RC: there is a sea of mud down there and difficult to recognise that. It is very difficult and Public Works have got this very high on their agenda. But the Director and Mr. George Burroughs are away at the moment so I am unable to get a timeline when this is going to start but they are actually starting to stockpile the materials to build this ramp. And, this will avoid the excavator actually churning up the ground prior to vehicles driving in, which is causing the main problem.
The other issue of the skips – planning permission has been given but the skips are not in place. And, again, I haven’t got a time line but I am hoping it will be in the near future.
AC: You mentioned the compactor that breaks up and causes the sludge. I wonder if perhaps there is an issue with drainage there rather than just the issue of the compactor itself and if anything is being seen to with regards the drainage at the site?
RC: I think that the ramp is actually designed to avoid this problem. The problem is that the whole tip is getting very full and to get rid of the water which is held in by the rubbish itself now, is very difficult to deal with. And so, when they put the ramp in hopefully there will be ditches to take the water away but the ramp will get the vehicles out of the mud.
Question Number 14/06 by The Honourable Janet Robertson:
Could the Honourable Dr Andrea Clausen please advise this House whether the fuel bowser currently located at Fox Bay for the purpose of assisting fuel deliveries to remoter settlements is currently being used, and if it is not, if he could explain the reasons for it.
Answer by the Honourable Dr. Andrea Clausen:
AC: Mr. Speaker, Honourable Members, the purpose of the Bedford fuel bowser was to assist with fuel deliveries on West Falkland settlements. As a result of the changes of the schedule of the Tamar this was going to happen. However, it has been waiting for spare parts and I understand there has been some issue regarding the servicing of the said bowser. And, it should be in service relatively soon once operational requirements have been finalised. In fact, I have just learned that a contract has been issued for somebody on the West to run this and it should be happening in the very near future.
IH: I wonder if the Honourable Member could for the point of clarification confirm that this bowser is actually owned by the Falkland Islands Development Corporation and would there be any remuneration due the Falkland Islands Development Corporation for fuel deliveries?
AC: I can confirm that the Falkland Islands Development Corporation do indeed own the said bowser. I would have to seek clarification as to whether there will be incoming funds from the contract. I would imagine that it would be but I can find out for you.
Question Number 15/06 by The Honourable Janet Robertson:
Taking into the account the poor state of some Camp Roads during the winter months, could the Honourable Mike Rendell advise whether there is any programme in place to supplement the overland fuel delivery arrangements of those settlements most affected with deliveries by the Tamar?
Answer by the Honourable Mr. Mike Rendell:
MR: The answer, to a certain extent, dovetails into what the Honourable Andrea Clausen has already responded to on the same question and from the slight hesitation that you gave just now it is clear that they overlap to some extent with these issues. The broad intention is that regular fuel supplies to West Falkland are now distributed by road. A 10-tonne 4-wheel drive tanker has been assigned to operate from Fox Bay and is light enough to legally transit the entire west road network at all times of the year. However, in the event of the roads becoming impassable for an extended time, FIG would consider using the Tamar or other equivalent method to deliver fuel to isolated settlements. Further to that, I can confirm that Island Shipping has agreed to do a delivery to Port Stephens in particular on an up-coming voyage of the Tamar. And, I can also confirm that, in talking to Island Shipping yesterday they confirmed that they are in a position to do this at anyone’s request provided that the road conditions are such that deliveries can’t be made by road provided they have sufficient time to fitted into their itinerary and to deliver it at a time, which is convenient for them.
JR: Thank you for that and I am extremely pleased to hear. I was just wondering, you mentioned Port Stevens. I wondered if this service would also apply to other settlements in that part of the Falklands – Albermale and possibly Port Edgar as well.
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