Tom Parlon (Laois-Offaly, Progressive Democrats)

I am speaking on behalf of the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, who is attending a funeral following a family bereavement.

The resolution under consideration in the House seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation on 30 June. In commencing the debate on behalf of my colleague, the Minister for Justice, Equality and Law Reform, Senators will recall that the 1998 Act was enacted in the aftermath of the Omagh bomb of August 1998, which claimed the lives of 29 innocent people and injured more than 200 others. That appalling act of barbarism continues to reverberate through the years and I am pleased to note that charges have recently been brought against a person in Northern Ireland relating to these murders. The investigation into this atrocity continues on both sides of the Border and there continues to be excellent co-operation between the Garda authorities and the PSNI in this regard.

It will also be recalled that, in recognition of the exceptional circumstances surrounding the enactment of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas. The purpose of this recurring Oireachtas scrutiny is to ascertain if the circumstances prevailing in 1998 justify the continuance in force of its provisions. Accordingly, by virtue of resolutions passed by both Houses of the Oireachtas on 15-16 June 2004, sections 2 to 12, 14 and 17 of the 1998 Act will cease to operate on and from 30 June next. That is, of course, unless a further resolution is passed by each House authorising the sections to continue to operate for a period not exceeding 12 months.

In addition, there is a requirement in the 1998 Act to lay a report on the operation of the Act before each House of the Oireachtas prior to any consideration by the Houses of the renewal of the provisions. Such a report was laid before this House last Monday by the Minister for Justice, Equality and Law Reform. The conclusion of that report is that the relevant sections of the 1998 Act should remain in force for a further 12 months. In the first instance, this is the firm view of the Garda Síochána, which considers the Act to be vital legislation in the continuing fight against terrorism and which considers it to be of paramount importance that the relevant provisions remain in operation.

Second, the harsh reality is that, despite the democratically expressed wishes of the people North and South of the Border, those responsible for the Omagh bomb continue to pursue, plan and promote a campaign of violence. In this regard, it must be remembered that there have been a number of "near misses" involving the Real IRA and the Continuity IRA since Omagh and it is only through dint of excellent police work by the Garda and the PSNI that further tragedy on a massive scale has been averted.

The new and more sinister forms of international terrorism, particularly Islamist terrorism, have been brought home to Europe with the Madrid bombings of 11 March 2004, involving the murder of 200 innocent commuters. The Criminal Justice (Terrorist Offences) Act 2005 was enacted last March to deal with this international terrorist threat by enabling the application of the Offences against the State Acts against international terrorist groups and individuals. Chipping away at these Acts would be neither wise nor warranted.

I will now turn to the individual sections of the 1998 Act this House is being asked to continue in force for a further 12 months. First, dealing with those sections of the 1998 Act that were used since the end of the last reporting period, that is, from 1 June 2004 to 31 May 2005, the following is the case. Section 2 was used on 30 occasions. By way of explanation, section 2 provides that where, in any proceedings for membership of an unlawful organisation, the accused failed to answer or gave false or misleading answers to any question, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure.

Section 3 was used on one occasion. By way of explanation, section 3 provides that, in proceedings for membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.

Section 4 was also used on one occasion. This section amends section 3 of the Offences against the State Act 1972 in such a way as to expand the definition of "conduct" that can be considered as evidence of membership of an unlawful organisation. Specifically, "conduct" can now include matters such as "movements, actions, activities, or associations on the part of the accused". This change simply aligns the definition of "conduct" in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.

Section 5 was used on 20 occasions. This section provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts, and any offence arising out of the same set of facts as such an offence, provided the offence carries a penalty of five years' imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. As with section 2, however, a person cannot be convicted of the offence solely on an inference drawn from such a failure.

Section 7 was used on two occasions. This section makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences.

Section 9 was used on 69 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence.

Section 10 was used on five occasions. This section extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In this regard, the judge must be satisfied, on the application of a Garda officer not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his or her behalf.

In the reporting period in question, an extension was applied for in five cases, and all these applications were granted. Charges resulted in four of these cases, with the fifth resulting in a file being sent to the Director of Public Prosecutions.

Section 11 was used on two occasions. This section allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances where the judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence.

Section 14 was used on 99 occasions. The effect of this section is to make the new offences created under sections 6 to 9 and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under section 30 of the 1939 Act.

I now turn to those sections of the 1998 Act that were not used in the period under report, namely, sections 6, 8, 12 and 17. Section 6 establishes the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act 1939.

Section 8 makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences.

Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse.

Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied there would be a serious risk of injustice if it made such an order.

The information on the use made of the provisions of the 1998 Act is based on data received from the Garda authorities and is contained in the report on the Act laid before this House.

At this point, I should mention the report of the Hederman committee, which was established to review the Offences against the State Acts 1939 to 1998. Of those sections of the 1998 Act on which specific recommendations were made, it should be noted that the Hederman committee unanimously recommended retention of sections 6, 7 and 12. Moreover, a majority recommended the retention of sections 2, 5 and 9, while the committee was evenly divided in its opinion as to whether section 10 should be retained. A majority recommended the repeal of section 8 of the 1998 Act. The committee unanimously recommended the repeal of section 3(1)(b)(ii) of the 1972 Act, as amended by section 4 of the 1998 Act, but the amendment in question was simply to the wording. The committee also made general recommendations relating to the scheduling of offences, which would have implications for section 14 of the 1998 Act.

Accordingly, of the 13 sections of the 1998 Act being considered for renewal by this House, the Hederman committee expressed a substantive opinion on eight of them. Of these eight, the committee recommended the retention of seven, either unanimously, by a majority or, in one case, on an even split. Accordingly, although a full consideration of the entire set of recommendations of the Hederman committee remains ongoing, it is clear that little or no change to the provisions of the 1998 Act would, in any case, be warranted.

In any event, in the past year, the House will be aware that the Minister, Deputy McDowell, has been busily engaged in bringing forward an extensive programme of legislative reform. In the counter-terrorism area, efforts in the past year were focused on enacting the Criminal Justice (Terrorist Offences) Act 2005, which occurred in March last. Now that this Act is out of the way, a fuller consideration of the entirety of the recommendations of the Hederman committee can proceed, and the Minister intends to bring further proposals to Government in due course.

In conclusion, the implementation of the Good Friday Agreement remains an ongoing challenge. Recent events in Northern Ireland and this jurisdiction point to the fact that paramilitary organisations are involved in activities of a criminal nature. One cannot ignore the simple fact that there are paramilitary organisations out there committed to the destruction of the Agreement and all other initiatives designed to bring lasting peace to the island of Ireland. As long as there are organisations dedicated to frustrating the will of the people through violence and mayhem, there must be robust counter-measures available to the State. Although the efforts of paramilitary organisations to wreak death, destruction and destabilisation have often been thwarted, we cannot allow the proven successes of the two police services to lull us into a false sense of security about their intentions or their capabilities. Given half a chance, both the Real IRA and the Continuity IRA would gladly bequeath to us any number of terrorist atrocities.

The Offences against the State (Amendment) Act 1998 is one element of the State's ongoing response to this threat. It is just one element, but to do away with it now would be to weaken, in an irresponsible manner, the State's bulwark against terrorism. I commend the resolution to the House.