Michael McDowell (Dublin South East, Progressive Democrats)

The section deals with an important function of the proposed authority, that is, investigation of security services on its own initiative. Subsection (4) of the Bill provides that if a person does not comply or comply fully with the request by the authority, the authority may apply to the District Court for an order requiring compliance by the person concerned within a specified period. Subsection (5) provides that in the event of non-compliance, the authority may apply to the court and, if it appears to the court that the person concerned has, without a reasonable excuse, failed to comply or comply fully with the order, the court may treat it as a contempt of court.

Senator Tuffy said that either it is a contempt of court or it is not a contempt of court. As the Senator will be aware, the canons of construction require that every section be given a constitutional meaning, if possible. It appears that a constitutional interpretation of this is that if the authority applies to the District Court, and if the District Court is to deal with the matter constitutionally, it would have to inquire of that person before it dealt with them as a contemnor. It would have to give people an opportunity to explain themselves and argue, for instance, that any failure to comply with an order was reasonably based or something which was not within their capacity to do. As courts are bound to administer justice under the Constitution, that standard would be applied by operation of law and by constitutional doctrine to the application of this section. It appears unlikely that anyone would be dealt with other than entirely fairly and in circumstances wherein they would be given an opportunity to explain themselves and argue their point. After all of that, the court would have to say this is wilful breach of a lawful direction without a proper lawful excuse. In those circumstances only, we would punish that as though it were wilful breach of an order of this court. I do not see anything unconstitutional about that. I know there was case law to the effect that certificates of bodies where people had not complied with orders were regarded as prima facie contempt, which was regarded by the courts as dubious. I accept that if we were trying it here it would be a dubious thing. However, this is a different situation. A jurisdiction is effectively conferred on the District Court, which must proceed on evidence and on the basis of natural and constitutional justice. That jurisdiction confers on the District Court the ultimate right to say that a person who is failing to comply with the direction in regard to an inquiry is to be treated in the same way as if he or she had been guilty of disobeying the District Court order. This is a reasonable and practical way of dealing with the issue.

The alternative is to say these people are guilty of a criminal offence. That would mean that unless one went through the criminal process, one could not force one to comply with the reasonable requests necessary to keep an investigation going. In some cases, perhaps it would involve people delaying the whole procedure by simply pleading not guilty or whatever, and having a trial at a later stage. Given the constitutional principles of construction that apply and the fact that the Constitution enjoins upon the District Court an obligation to proceed in accordance with natural and constitutional justice and in accordance with constitutional norms, there is no danger of the kind outlined by Senator Tuffy.