Dermot Ahern (Louth, Fianna Fail)

While I accept that Senator Mullen tabled thee amendments in good faith, the net effect of what he is suggesting - which he readily admitted - would be that the test would be restricted to one of falsity. In deleting the words to which the amendments refer, he would, in effect, be providing protection for persons who knowingly or recklessly make communications or offer opinions that are misleading, frivolous or vexatious. I could not accept this.

When the Bill was originally published, the test of whether a whistleblower would receive protection was simply based on whether he or she had acted reasonably and in good faith in forming an opinion and communicating it to the appropriate person. I proposed an amendment which was accepted on Committee Stage in the Dáil in respect of this test. As a result, the Bill now provides that a whistleblower will be protected unless, when communicating an opinion, he or she does so knowing or being reckless as to whether that opinion is false, misleading or frivolous or if he or she furnishes information in this regard that he or she knows to be false or misleading.

I also tabled an amendment on Report Stage in the Dáil in respect of allegations of whistleblowing which are false. As a result, the test as to whether a person is guilty of an offence rests on whether he or she actually knew an allegation was false as opposed to whether he or she ought to have known it was untrue. I am satisfied, therefore, that the section, as it now stands, strikes the correct balance.

Senator Mullen referred to the treatment, from a civil point of view, of employees. I refer him to section 6 which inserts an new Schedule 1 in the principal Act and which states:

In proceedings under this Schedule before a rights commissioner or the Labour Court in relation to a complaint that section 8A(5) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.

Again, protection is provided for employees who must obviously make complaints in good faith. While Senator Norris may have been overly colourful in what he said, I agree with his opinion on this matter. Deleting the words in question would have an adverse effect in that it would provide protection for someone who knowingly or recklessly makes vexatious, frivolous or misleading allegations.