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11 1940

DEFENCE FORCES (TEMPORARY PROVISIONS) (No. 2) ACT, 1940

PART VI.

Miscellaneous Provisions.

Amendment of section 29 of the Principal Act.

50. —(1) Section 29 of the Principal Act is hereby amended by the addition thereto of the following paragraph, that is to say:—

“(e) construct, acquire, equip, maintain and commission public armed vessels and auxiliaries thereto for the defence of the State and the territorial waters thereof.”

(2) This section shall be deemed to have come into force on the 3rd day of September, 1939, and shall have and be deemed to have had effect as on and from that day.

Amendment of section 31 of the Principal Act.

51. Section 31 (which relates to the making of regulations) of the Principal Act shall be construed and have effect as if there were inserted therein after paragraph (i) the following paragraph, that is to say:—

“(ii) the colours, flags or pendants proper or to be appropriated to the use of public armed vessels and auxiliaries thereto.”

Amendment of section 120 of the Principal Act.

52. —Sub-section (3) of section 120 (which relates to confession by soldier of desertion or fraudulent enlistment) of the Principal Act shall be construed and have effect as if the word “general” were deleted therefrom.

Amendment of section 123 of the Principal Act.

53. Section 123 (which relates to mode of complaint by soldier) of the Principal Act shall be construed and have effect as if the word “general” were deleted therefrom.

Apprehension of suspected deserters and absentees.

54. —(1) Where an officer or a soldier or a member of the Gárda Síochána has reasonable grounds for suspecting that any person is a deserter or absentee without leave from the Defence Forces, he may, without warrant, arrest such person and bring him to a Gárda Síochána station.

(2) Where—

(a) a person is brought to a Gárda Síochána station under sub-section (1) of this section, or

(b) a person surrenders himself to a member of the Gárda Síochána at a Gárda Síochána station and alleges that he is a deserter or absentee without leave from the Defence Forces,

such person shall be detained at such station and thereupon a Justice of the District Court or a Peace Commissioner shall, as soon as may be, inquire into the case and if it appears to him that such person is a deserter or absentee without leave from the Defence Forces, he shall cause such person to be delivered into military custody, but otherwise shall direct the release of such person.

Certain matters and documents to be evidence.

55. —The following provisions shall have effect with respect to evidence in proceedings under the Acts and this Act, whether before a civil court or a court-martial, that is to say:—

(a) any agreement, attestation or other form or document purporting to be signed by any person upon his being attested as a soldier in any portion of the Defence Forces shall be evidence of the fact that such person gave, in answer to the questions set forth in such form or document, the answers he is therein represented as having given;

(b) the enlistment of any person in the Forces or the Reserve of Men may be proved by the production, by a witness on oath, of a copy of such person's attestation, or agreement form, purporting to be certified to be a true copy by the officer having the custody of such original attestation or agreement form, without proof of the handwriting of such officer or of his having custody of such original form;

(c) a letter, return, or other document, respecting the service of any person in, or the discharge of any person from, any portion of the Defence Forces, if purporting to be signed by or on behalf of the Minister, or the commanding officer of any portion of the Defence Forces to which such person appears to have belonged or alleges that he belongs or had belonged, shall be evidence of the relevant facts stated in such letter, return, or other document;

(d) a Defence Force List or Defence Force Gazette printed under the superintendence or authority of and published by the Stationery Office shall be evidence of the status and rank of the officers therein mentioned and of any appointment held by such officers and of the Corps or battalion or the Corps or Service to which such officers belong;

(e) when a record is made in one of the regimental books in pursuance of the Acts or any regulations made thereunder or otherwise in pursuance of military duty, and purports to be signed by the commanding officer, or by the officer whose duty it is to make such record, the following provisions shall have effect, that is to say:—

(i) such record shall be evidence of the facts therein stated, and

(ii) a copy of a record in any regimental book purporting to be certified to be a true copy by the officer having the custody of such book shall be evidence of such record;

(f) any warrant or order made under the Acts by a military authority shall be deemed to be evidence of the matters therein directed to be stated by or in pursuance of the Acts, and any copy of such warrant or order purporting to be certified to be a true copy by the officer therein alleged to be authorised by the Minister to certify the same shall be admissible in evidence;

(g) where the proceedings are proceedings against an officer or soldier (in this paragraph referred to as the accused) on a charge of being a deserter or absentee without leave, and the accused has been arrested by a member of the Gárda Síochána or any officer or soldier or has surrendered himself into the custody of an officer or any portion of the Defence Forces, a certificate purporting to have been signed by the member of the Gárda Síochána officer or soldier by whom the arrest was made or by the officer to whom the surrender was made or by the commanding officer of the portion of the Defence Forces to whom the surrender was made, and stating the fact, date, time and place of such arrest or surrender, and whether the accused so surrendering was dressed in uniform or not, at the time of arrest or surrender, shall be evidence of the matters so stated;

(h) where the proceedings are proceedings against an officer or soldier on a charge of being a deserter or absentee without leave, and the officer or soldier has surrendered to any member of the Gárda Síochána a certificate purporting to be signed by such member or the person in charge of a Gárda Síochána station when such officer or soldier has been delivered into military custody by such person and stating the fact, date, time and place of such surrender, and whether the officer or soldier so surrendering was dressed in uniform or not at the time of surrender shall be evidence of the matters so stated;

(i) when the proceedings are proceedings against an officer or soldier (in this paragraph referred to as the accused) on a charge of being a deserter or absentee without leave, and either the accused has been arrested by a member of the Gárda Síochána or an officer or soldier and brought to a Gárda Síochána station or has surrendered to a member of the Gárda Síochána at a Gárda Síochána station, a certificate purporting to be signed by the member of the Gárda Síochána in charge of such station at the time when the accused is delivered into military custody stating the fact, date, time, and place of arrest or surrender, and whether the accused was dressed in uniform or not at the time of arrest or surrender shall be evidence of the facts so stated.

Exemption of officers and soldiers from certain provisions of the Road Traffic Act, 1933 , during a period of emergency.

56. —The following provisions of the Road Traffic Act, 1933 (No. 11 of 1933), shall not apply, during a period of emergency, in respect of any officer or soldier while on duty, that is to say, sections 22 and 49, sub-section (2) of section 149, sub-section (5) of section 159, and sections 164 and 166.

Restoration to employment of, and other provisions in relation to, reservists called out on permanent service and soldiers enlisted in the Forces for a period of emergency.

57. —(1) Where—

(a) either—

(i) a person who is a reservist has been before, or is after the passing of this Act, called out on permanent service, or

(ii) a person enlists in the Forces, and

(b) such person (in this sub-section referred to as the former employee) was, at the time he was so called out on permanent service or enlisted (as the case may be), employed by another person (in this sub-section referred to as the former employer) who is neither a Minister of State nor a statutory body responsible to a Minister of State,

the following provisions shall have effect, that is to say:—

(c) it shall be the duty of the former employer to reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or enlisted;

(d) if the former employer fails to so reinstate the former employee, the former employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds;

(e) if the former employer is found guilty of such offence, the court by which he is so found guilty may also order him to pay to the former employee such amount (not exceeding six times the sum which would, if he had not so been called out on permanent service or had not so enlisted (as the case may be) and had been in the employment of the former employer at the termination of his military service, have been the monthly remuneration payable to him by the former employer at the time of such termination) as the court thinks fit;

(f) if the former employer is charged with an offence under this sub-section in relation to the former employee, it shall be a good defence to such charge if the former employer proves—

(i) that the former employee did not before the expiration of one month after the termination of his military service, apply to the former employer for reinstatement, or

(ii) that having been offered reinstatement by the former employer, the former employee failed, without reasonable excuse to present himself for employment at the time and place notified by the former employer, or

(iii) that by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)—

(I) it was not reasonably practicable to reinstate the former employee, or

(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or enlisted was impracticable and the former employer has offered to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable.

(2) For the purpose of securing the fair adjustment of contracts of service or apprenticeship in force between employers and employees when the employees are called out on permanent service or enlisted, the Minister for Industry and Commerce may make regulations relieving the parties to such contracts of all or any of their obligations thereunder in respect of the period of military service of such employees, and may also make regulations modifying such contracts by extending the period of service or apprenticeship thereunder by a period not exceeding the said period of military service, and adapting the terms of the contracts in relation to any such extension.

(3) In the relation to any person (in this sub-section referred to as the former employee) who being a reservist has been called out on permanent service or, not being a reservist, has enlisted in the Forces, references in this section to the person by whom the former employee was employed at the time he was so called out on permanent service or enlisted shall, as respect any thing to be done, after the expiration of his military service, be construed as including references to any person for the time being carrying on the undertaking or service in which the former employee was employed when he was so called out on permanent service or enlisted or carrying on any undertaking or service in which it has been amalgamated or in which it was comprised on the date on which the former employee was so called out or enlisted.

(4) If the Minister for Industry and Commerce is satisfied that it is necessary to restrain employers from terminating the employment of their employees by reason of any duties or liabilities which they are or may become liable to perform or discharge as members of the Defence Forces by virtue of the provisions of the Acts or this Act, or to make provision for the prevention of evasion of the provisions of this section, he may make regulations for those purposes, and such regulations may make provision for the punishment of breaches of the regulations and may in particular apply with respect to persons found guilty of such breaches of any of the provisions of sub-section (1) of this section relating to persons found guilty of offences under the said sub-section, with or without modifications.

(5) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling such regulation is passed by either such House within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly but without prejudice to anything previously done under such regulation.

(6) Where—

(a) either—

(i) a person who is a reservist has been before, or is after the passing of this Act, called out on permanent service, or

(ii) a person enlists in the Forces, and

(b) such person (in this sub-section referred to as the former employee) was at the time he was so called out on permanent service or enlisted (as the case may be) employed by a person (in this sub-section referred to as the authority) who is either a Minister of State or a statutory body responsible to a Minister of State,

the following provisions shall have effect, that is to say:—

(c) the authority shall reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or enlisted;

(d) paragraph (c) of this sub-section shall not apply in respect of the former employee—

(i) if the former employee does not, before the expiration of one month after the termination of his military service, apply to the authority for reinstatement, or

(ii) if, having been offered reinstatement by the authority, the former employee fails, without reasonable cause, to present himself for employment at the time and place notified by the authority, or

(iii) if, by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)—

(I) it is not reasonably practicable to reinstate the former employee, or

(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or enlisted is impracticable, and the authority offers to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable, or

(iv) if the former employee did not, in case he was employed by the authority at the time he enlisted in the Forces or the Reserve, obtain the consent of the authority or some person acting on behalf of the authority to his enlisting in the Forces or the Reserve.

(7) In this section—

the word “reservist” means a man of the Reserve;

the expression “called out on permanent service” means, in relation to a reservist, called out on permanent service in pursuance of section 221 of the Principal Act;

the expression “enlists in the Forces” means enlists in the Forces for the period of an emergency under Chapter II of Part IV of this Act, and cognate words shall be construed accordingly;

the expression “termination of his military service” means-—

(a) in relation to a reservist, the date on which he is released from military service next subsequent to his being called out on permanent service,

(b) in relation to a person who enlisted in the Forces, the date of his discharge from the Forces;

the expression “period of military service” means—

(a) in relation to a reservist, the period commencing on the date on which he is called out on permanent service and ending on the date of the termination of his military service next following such calling out,

(b) in relation to a person who enlisted in the Forces, the period commencing on the date on which he so enlisted and ending on the date of the termination of his military service next following such enlistment.

Restrictions on recruiting for other States.

58. —(1) It shall not be lawful for any person—

(a) to induce, procure, or persuade any person in the area of application of the Acts of the Oireachtas to accept or agree to accept any commission or engagement in any military, naval or air service maintained by the Government of any other State; or

(b) to print within the area of application of the Acts of the Oireachtas or cause or procure to be printed within that area any notice or advertisement in relation to the procurement of personnel for any military, naval or air service maintained by the Government of any other State; or

(c) to publish or cause or procure to be published within the said area any such notice or advertisement as is mentioned in paragraph (b) of this sub-section which is printed within the said area.

(2) Every person who acts in contravention of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds or at the discretion of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.

(3) In this section—

the expression “the Government” in relation to any other State includes any person exercising or assuming to exercise powers of Government in or over such State or any part thereof;

the expression “military, naval or air service” does not include a voluntary aid society duly authorised for the purposes of Article 10 of the International Convention for the amelioration of the condition of the wounded and sick in armies in the field signed at Geneva on the 27th day of July, 1929.