Katherine Zappone (Independent) | Oireachtas source

I second amendment No. 7. My amendment is on the definition of wrongdoing. Even though I noted the Minister's reasoning for the definition from the last time we debated it here I still think that my amendment is relevant and valid. He argued that the more one specified the definition then the more it was weakened. The proposed amendment is very similar to two preceding subsections, section 5(3)(f) and (g) which state:

(f) that an unlawful or otherwise improper use of funds or resources of a public body .... has occurred, ...
(g) that an act or omission by or on behalf of a public body is oppressive, .....

There is a broad range of categories covered in both subsections through the use of the words "improper use of funds or resources of a public body." However, they do not cover the class of a public official but only a public body. Those sections of the law are also additions and are part of the UK law.

In addition, it could be argued - contrary to what the Minister put forward - that the inclusion of the words "improper use of funds" and the specific "act or omission" listed in paragraphs (f) and (g) could give rise to an interpretation that undue influence has been explicitly excluded from the legislation, given that the legislation troubles to mention the other elements explicitly.

The OECD toolkit explicitly includes "abuse of authority" along with the "mismanagement and waste of funds". If one were to interpret the Irish legislation against those international guidelines one could come to the conclusion that "abuse of authority" has been explicitly excluded because it has been included with the other two ways of defining wrongdoing that we have in the law. I would argue that the need for the inclusion of the reference to undue influence is increased by a lack of definition of corruption in Irish law. The Minister has acknowledged that one of the aims of this legislation is to combat corruption but the current categories do not include the misuse of public entrusted power for private gain, therefore, there remains a gap in the legislation.

As an aside, it is one thing to argue that the courts may interpret the legislation as including "undue influence", and the Minister referred to the Attorney General's argument on the previous occasion, but it is necessary that the whistleblower is aware that this is something that constitutes a protected disclosure, and that is clearly not the case.