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32 2001

DORMANT ACCOUNTS ACT, 2001

Chapter 2

Inspections

Interpretation (Chapter 2).

21. —In this Chapter—

“computer” includes a personal organiser or any other electronic means of information storage and retrieval;

“inspector” means a person authorised by the Minister under section 22 to exercise the powers conferred on an inspector by this Chapter;

“record” means any book, document (including accounts) or any other written or printed material in any form including—

(a) any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form and that is capable of being reproduced in a legible form, and

(b) all the electronic or other automatic means, if any, by which any such material or information is capable of being so reproduced and to which an institution, being inspected for the purposes of this Chapter, has access.

Authorisation of inspectors.

22. —(1) The Minister may authorise one or more persons to be inspectors for the purposes of—

(a) ensuring compliance by the institutions with this Act,

(b) examining claims for repayment under section 19 ,

(c) ascertaining whether institutions have established systems, procedures and practices that are adequate to secure an effective check on the identification, notification, transfer, recording and repayment of moneys in dormant accounts, and

(d) determining whether those systems, procedures and practices have been employed and applied in an adequate manner in relation to moneys in dormant accounts.

(2) An authorisation under this section shall be in writing and shall be subject to any terms and conditions (including terms and conditions relating to the remuneration, fees and allowances for expenses) that may be determined by the Minister, with the consent of the Minister for Finance, and that are specified in the authorisation.

(3) The remuneration, fees and allowances for expenses referred to in subsection (2) shall be payable out of the Fund.

(4) The authorisation of an inspector under this section ceases when the Minister revokes the authorisation.

(5) Subject to section 24 , the Minister may give directions in relation to the form, manner and content of the report to be prepared by an inspector.

Power to inspect records.

23. —(1) An inspector may, for the purposes specified in section 22 , on production of his or her authorisation—

(a) at all reasonable times and on reasonable notice inspect and take copies of or extracts from (including, in the case of information in a non-legible form, a copy of or extract from that information in a permanent legible form), and make any enquiries that the inspector considers necessary in relation to the following records kept by an institution—

(i) accounts held by the institution,

(ii) records of the transfer of moneys to the Fund under section 12 ,

(iii) the register,

(iv) claims for repayment under section 19 ,

(v) any other records relating to the matters specified in subparagraphs (i) to (iv), and

(vi) any other records relating to dormant accounts,

and, for those purposes, enter any premises on which the inspector reasonably believes that those records are kept and search and inspect the premises,

(b) secure for later inspection any premises or any part of a premises on which those records are kept or there are reasonable grounds for believing that those records are kept,

(c) where records that are stored in electronic form or are not in the English or Irish language, require the institution concerned or a person employed by that institution to produce in a legible form a copy of those records in the English or Irish language,

(d) require a person by whom or on whose behalf a computer is or has been used to produce or store records or any person having charge of, or otherwise concerned with the operation of, the computer to afford the inspector all reasonable assistance in relation thereto, and

(e) remove and retain those records for such period as may be reasonable for further inspection or until the conclusion of any legal proceedings, subject to a warrant being issued for that purpose by a judge of the District Court.

(2) A person who has in his or her power, possession or procurement any records referred to in subsection (1) shall—

(a) produce them at the request of the inspector and permit the inspector to inspect and take copies of or extracts from them,

(b) at the request of the inspector, give the inspector any information that the inspector may reasonably require in relation to any entries in those records and provide an explanation of any apparent omissions from them or any omission of a record required to be produced, and

(c) give any other assistance and other information to the inspector that is reasonable in the circumstances.

(3) The duty to produce or provide any record or information extends to an examiner, administrator, liquidator, receiver, official assignee or any person who is or has been an officer or employee or agent of an institution or who appears to the Minister or the inspector to have the information or record in his or her possession or under his or her control.

(4) Where a person from whom production of a record is required claims a lien thereon, the production of it shall be without prejudice to the lien.

(5) An inspector shall not, except with the consent of the occupier, enter a dwelling unless he or she has obtained a warrant issued by a judge of the District Court under subsection (7) authorising the entry.

(6) An inspector, where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an inspector by this Part.

(7) If a judge of the District Court is satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that there is information required by an inspector under this section held on any premises or any part of any premises, the judge may issue a warrant authorising an inspector, accompanied by other inspectors or by a member of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production of the warrant if so requested, to enter the premises, if need be by reasonable force, and exercise all or any of the powers conferred on an inspector under this section.

(8) A person who—

(a) obstructs an inspector in the exercise of a power under this Chapter,

(b) gives to an inspector information that the person knows is false or misleading, or

(c) without reasonable excuse, fails to comply with a request or requirement made by an inspector under this Chapter,

shall be guilty of an offence.

(9) For the purposes of carrying out inspections under this Chapter the inspector shall have access to—

(a) all records kept by the Agency in relation to the transfer of moneys to, and the repayment of moneys from, the Fund, and

(b) the certificates of compliance furnished to the Minister under section 20 .

Inspector's report.

24. —(1) Where, following an inspection under this Part, the inspector is of the opinion that—

(a) there is reason to believe that the institution concerned is in breach of any provision of this Act, or

(b) there is a material defect in the systems, procedures and practices referred to in section 22 (1)(c),

the inspector shall prepare a report, in writing, and submit a copy of the report to the Minister.

(2) Subject to subsection (3), account holders shall not be referred to in a report under this section (otherwise than for the purposes of subsection (3)) by name or in any manner by which they could be identified as account holders.

(3) An inspector who, in the course of an inspection, obtains prima facie evidence of—

(a) a possible underpayment or non-transfer of moneys from a dormant account to the Fund under section 12 , or

(b) a fraudulent claim for repayment under section 19 ,

shall furnish to the Minister particulars of the evidence and of the accounts and account holders concerned.

(4) An inspector shall provide to the Minister any information and assistance that may reasonably be required by the Minister in respect of any matters relating to an inspection carried out under this Chapter or for the purpose of clarifying any matter in the inspector's report.

Privilege of inspector.

25. —Utterances made in good faith by an inspector for the purpose of performing the functions of an inspector under this Chapter are absolutely privileged and such utterances and reports in any form prepared by an inspector for that purpose are absolutely privileged wherever and however published.

Disclosure of information to inspector.

26. —(1) Subject to section 24 (2), any prohibition or restriction imposed by law (including any contract) in relation to the disclosure of information (including records in any form) does not apply in relation to—

(a) the disclosure of information in good faith to, or access to information by, an inspector for the purposes of his or her functions under this Part, or

(b) any information that is contained in an inspector's report under section 24 and is information that in the inspector's opinion ought, in the public interest, to be so contained and no liability of any kind shall attach to the person or institution (including their directors, officers or employees) making the disclosure.

(2) Nothing in this section or section 23 compels the disclosure by any person of any information that the person would, in the opinion of the court, be entitled to refuse to produce on the grounds of legal professional privilege or authorises the taking possession of any document containing such information that is in the person's possession.

Failure to comply with Act.

27. —(1) Without prejudice to any prosecution that might be brought under this Act, where an inspector's report under section 24 discloses particulars of—

(a) non-compliance by an institution with any provision of this Act, or

(b) a material defect referred to in section 24 (1)(b),

the Minister may, as soon as practicable after receiving the report, give, by notice in writing, directions to the institution aimed at ensuring compliance or rectification of the material defect, as the case may be, subject to any terms and conditions that the Minister may specify in the directions.

(2) (a) An institution that fails to comply with a direction given under subsection (1) shall be guilty of an offence.

(b) It shall be a defence to a prosecution under paragraph (a) for the institution concerned to prove that a direction given under subsection (1) was unreasonable having regard to—

(i) the scope and terms of the provision of this Act that, in the opinion of the inspector, the institution failed to comply with, or

(ii) the nature and consequences of the alleged material defect.