Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I move amendment No. 37:

In page 43, after line 38, to insert the following:“(2) The reference in subsection (1) to a person’s having contravened this Act shall be deemed to include a reference to his or her having contravened a provision of any other enactment referred to in section 12(4) or (5) and subsequent references in this Part and Part 6 to a contravention of this Act shall, where the context admits, be construed as including references to a contravention of such a provision.

(3) Without prejudice to subsections (1) and (2), a person (also referred to in this Act as ‘‘the complainant’’) who considers that a public official (also referred to in this Act as the “respondent”) has done an act or made an omission falling within subsection (4) and that the matter is one of significant public importance may make a complaint in writing in relation to the matter to the Commissioner.

(4) The act or omission referred to in subsection (3) is one that is, or the circumstances of which are, such as to be inconsistent with—

(a) the proper performance by the public official of the functions of the office or position by reference to which he or she is such an official (or, in the case of a member of a House, the functions of the office of member), or

(b) the maintenance of confidence in such performance by the general public, and subsequent references in this Part and Part 6 to a contravention of this Act shall, where the context admits, be construed as including references to such an act or omission.

(5) The following may, for the purposes of subsection (3), be treated by the Deputy Commissioner or the Commissioner as an act or omission done or made by the public official referred to in that subsection, namely an act or omission by a person who is a connected person in relation to the public official and either—

(a) the act or omission is proved to have been done or made by the person with the prior consent or connivance of the public official, or

(b) although it is not proved to have been so done or so made, each of the following applies—

(i) the act or omission is proved to have resulted in a benefit, directly or indirectly, for the public official (to his or her actual knowledge), and

(ii) the public official has not, before the making of the complaint concerned, sought to relinquish, or otherwise taken steps to cease his or her enjoyment of, the benefit.

(6) In determining whether either of paragraphs (a) and (b) of subsection (4) applies to an act or omission referred to in subsection (3), the matters to which regard is to be had shall include whether the act or omission involved, to a substantial extent, a failure to comply with section 10.

(7) Subsection (6) applies notwithstanding the provision made by subsection (9)for the treatment of a complaint that alleges a contravention of section 10.”.

Amendment No. 37 proposes to insert a new subsection at the beginning of section 33(2) that relates to amendment No. 11 to section 12. As explained earlier, the intention is that the amendment will also allow the new standards commissioner to investigate a complaint made regarding a contravention of the ethical provisions contained in the existing Acts related to the public bodies, as well as under the Bill.

With regard to the new subsections (3) and (7), I am advised by the Attorney General that it is necessary to include the provision in existing legislation relating to a specified act being included by way of amendment in this Bill. A specified act in the existing legislation means conduct that is inconsistent with the proper performance of an official's functions. It is subject to investigation and publication of a report by the commission. As there is nothing in the current Bill to mirror this provision, this amendment has been drafted to include a similar provision in the Bill. This will allow investigations which can be currently carried out to continue to be carried out.