Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

I will deal with the issues in reverse order.

On the oral hearing piece, the approach adopted in the Bill is based on the advice of the Office of the Attorney General. As Senator Martin said, the Bill does not require all hearings to be in public. There is no responding party, therefore it will involve only persons under investigation before the commission. The basis for this, as the Senator will be aware, is the Supreme Court decision in the Zalewski case in 2021, which related to the exercise of powers by adjudication officers in the Workplace Relations Commission. Mr. Justice O'Donnell stated in that case regarding the issue of an oral hearing that:

The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal, the opposite provision is made.

The advice from the Office of the Attorney General is, therefore, that there is no necessity to provide that oral hearings be held in public. Additionally, there is currently no prohibition on such hearings being held in public in the Act or in the Bill and, as the Senator said, the balance is such that it can happen. From a practical point of view, it occurs in most cases that a person subject to an administrative sanction procedure would probably prefer a hearing to be held in public and SIPO may have a similar preference, but permitting them to be conducted in a private setting in the first instance, that is, before SIPO, may tend to facilitate a more efficient running of such hearings. Indeed, in the words of Mr. Justice O’Donnell, there is justification for calm, quiet and private resolution of many disputes, which may be in the interests of both parties. That is the justification for this approach, having regard to the recent Supreme Court decision.

In regard to the administration of an oath and-or affirmation, there is an academically interesting but technical justification for why affirmation is not necessary, going back to the Oaths Act 1888. I can provide that to the Senator if that is more efficient and desirable. Essentially, the advice is that it is not necessary. Going back through the Interpretation Act 2005 and having regard to the earlier 1888 Act, it is essentially the same thing. I am happy to provide that to the Senator should it be of interest to him.

The final point concerns criminal and civil sanctions and how the interplay of the two operates. It is just for the failure to register or the failure to make returns, as I understand it, but the real balance is that the criminal proceedings will take precedence. It is up to SIPO to investigate and make a determination about its view of the seriousness of a particular matter. If there is any question about it being at the criminal level, it will simply pass it on to the relevant prosecuting authorities for a criminal prosecution, and any civil sanction or any other sanction would be simply paused in that event. SIPO is a quasi-judicial body, as the Senator said, but it is very conscious of infringing on the jurisdiction of the court in regard to any criminal matter so it is up to it to make a determination as to which prosecuting authority or which process would be appropriate. As I said, it would firmly step back in the event of any criminal matter. I hope that answers the question for the Senator.