Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 94:

In page 49, to delete lines 27 and 28.

This is a concern I have in terms of the wideness of the language. Section 46J(1)(e) prohibits the broadcast of, "anything ... tending to undermine the authority of the State". That language is extremely wide. I know it is taken from the Broadcasting Act 2009 but we are making new legislation. The language was not appropriate in the Broadcasting Act 2009 and we should be putting forward appropriate language now rather than taking a proviso from the past. Many other measures in the past silenced different voices within Irish media.

I know that the language comes from the Constitution but, to be clear, the language in the Constitution already exists.It does not need to be replicated in legislation. If it is put in here, however, one is creating almost a tension with the constitutional interpretation, which is there and is available to anybody who wishes to go to the Supreme Court. In the case of the Constitution, however, it is balanced by all of those other rights on expression. It is not a sentence floating on its own but is placed in that context. Instead, we have some of the language of the Constitution being given here for the commission to interpret, effectively, rather than by the Supreme Court.

I know that that was the case in the 2009 Act, which I believe was an error. We need to be clear in how we address these issues. There is a concern. For example, if there are criticisms of the actions of the HSE, does that undermine the State's authority. We also saw a documentary on local authorities and their governance. Where will the interpretation of the tendency to undermine the authority of the State be? Are we effectively giving power to a body to interpret a constitutional phrase? We have, as is proper, translated those measures already into very properly nuanced and thought-through legislation and that is what my second amendment in this set of amendments addresses. This is the one where we talk to the Offences against the State Act. This Act was there to give the legislative framework in interpreting what are offences against the State, including the undermining of the State’s authority.

It would be more appropriate if this legislation was to say anything which may reasonably be regarded as an offence, or a potential offence, under the Offences against the State Act 1939. Yes, that is an appropriate caveat that would be applied, which is of the concern or risks to the Constitution. At least in that Act, one is talking about a proper piece of legislation that can be referred to rather than simply a phrase taken from the Constitution and placed here out of context to the other pieces.

A potential tension is also created between the Offences against the State Act and this proviso. Again, this proviso was in the 2009 Act but it was not appropriate or nuanced enough in that Act and we would be better to link it to an actual set of concerns that are enumerated as offences under the relevant legislation. This is my attempt to make it clearer and to avoid unfortunate over-interpretation but perhaps there are other ways to approach this.