Joanna Tuffy (Labour)

I move amendment No. 21:

In page 17, subsection (2)(a), line 39, after "information" to insert "or requires production to it of a document for the purpose of determining whether or not such document is privileged".

The Labour Party feels the legislation is flawed in the way it deals with privileged documents. As drafted, the Bill requires in section 24(a) that a commission must examine a document to determine whether it is privileged. This is impractical and inappropriate. If implemented, the provision will result in circumstances in which an entire inquiry might become contaminated due to a commission becoming aware of a matter by looking at a privileged document. The problem is compounded by the fact that the members of a commission will not necessarily be persons with legal knowledge. Any person, regardless of whether he or she knows anything about legal or any other privilege, is entitled to be appointed to a commission.

The Labour Party is concerned that the production to a commission of a privileged document could have the effect of destroying the privilege of the commission and contaminating the minds of its members. The example of the High Court which requires documents to be submitted is apt. This is a different scenario as the High Court consists of extremely senior and eminent legal personnel who are used to dealing with these matters. The High Court is not a commission of inquiry which might take the information in a privileged document consciously or unconsciously and use it to make further inquiries. This is the reasoning behind our amendment. Subsections (4), (5) and (6) should be deleted and a commission subjected to a right of appeal to the High Court where it wishes to see a document to determine whether it is privileged. Such a provision would permit a determination of privilege without the commission having to see a document.

Amendment No. 22 deals with the same issue. The Labour Party is putting forward an alternative suggestion whereby a commission would be entitled to request to see a document and a person of whom such a request was made would be entitled to challenge it in the High Court by way of an appeal under the legislation. The commission concerned would not have to see the document.

Amendment No. 24 is an alternative amendment if the Minister of State does not accept the proposal to allow privilege to be challenged without the commission having to inspect a document. If it were believed that a commission had been contaminated, the court could use the provision proposed in the amendment to direct it to cease its inquiry or part of it.

Amendment No. 28 seeks to insert a protection for reasons of constitutional policy. Usually, legislation authorising search and seizure contains an express protection for privileged documents. The Labour Party seeks to insert such a provision in this legislation.