Interception of Postal Packets and Telecommunications Messages (Regulation) Bill, 1992: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 4, line 1, after "person" to insert "or the ascertainment of the contents of the postal packet without opening it (by electronic means or otherwise)".
This amendment seeks to broaden the scope of the Bill. There are, I understand, scanners and various imaging techniques available which allow the contents of an envelope to be examined without actually opening the envelope. The Bill simply precludes the subjects of this legislation from opening envelopes.
There is a wide range of imaging techniques and they are very effective. Many play a very worthwhile and valuable role in the area of medicine where it is now possible to get images of every part of the body, which is more difficult to obtain than the contents of a postal package. This amendment is designed to preclude people from getting around the legislation through the use of appropriate imaging techniques. I do not think there is any purpose in having this legislation if it is possible to circumvent it by the use of appropriate modern technology.
A series of such scanners have become available in the last number of years — ultra-sound, infra red imaging and so on, which are widely used in medicine and other areas. If I remember correctly, in some kidnap cases it has been possible, through the use of appropriate imaging techniques, to discover where the people were held, and the number of people holding them. A fairly good attempt could be made at figuring out who exactly was holding them and for how long they had been held. I am concerned that this Bill would allow for the use of those techniques which would circumvent the provision in the Bill. I hope the Minister will sympathetically consider this amendment.
I will consider it. The amendment, if accepted, would on the face of it give greater powers of interception of postal packages to the Garda and the military than envisaged in the Bill although if in ascertaining the contents of the postal packet without opening it, the packet is in any way detained or delayed, the intent of the amendment would be covered by the present definition. The security forces have not asked for the powers envisaged in the amendment in this case.
In deference to what the Senator has said, I shall make inquiries between now and Report Stage to see whether anything further is required. The Senator has a point and I will look at it.
I thank the Minister for the commitment he has given. I do not pretend that I am an expert on these matters but it is an important point. I am grateful to the Minister for the commitment he has given to have his experts examine this and let us know whether it is worth including in the Bill.
Amendment, by leave, withdrawn.
The Leader of the House wishes to make a comment.
In view of the progress we are making at the moment I ask the House to agree to a sos between 1 p.m. and 2 p.m. today.
I move amendment No. 2:
In page 4, line 14, after "of" where it secondly occurs, to insert "the contents or existence of".
My concern relates to the fact that it would be possible to monitor the numbers dialled by an individual. That would not be covered under the terms of this Bill. If the numbers dialled are monitored they could provide useful or compromising information to somebody seeking information to which they would not be entitled. I understand it is easy to monitor the numbers dialled on a private individual's telephone. It would be a very easy way to get around the principle embodied in this Bill that people are entitled to their privacy and that these matters should not be interfered with.
I ask the Minister to consider this amendment.
Senator Upton's two amendments contain important suggestions and cover the change in technology, which has improved since the original Bill of which this is a exact copy, was drawn up ten years ago. I support Senator Upton's amendments.
I accept the logic behind what Senator Upton said. However, his amendment may not be necessary. The substance of it is already covered in the definition of "interception" and in section 13. If a telecommunications message is being intercepted under the provisions of this Bill, it would be understood that the contents of the message were being listened to or recorded.
There is also no need to include in the definition the question of the existence of a telecommunications message. It is covered by section 13 (2) of the Bill which puts the disclosure of metering information and any other information relating to the use of the telecommunications service on a statutory basis. Metering consists of the use of a device which registers the numbers dialled on a particular telephone and the time and duration of each call. This process is mainly used by Bord Telecom Éireann for the purpose of ensuring that subscribers are correctly charged but the information obtained from it is on occasion disclosed to the Garda to assist them in criminal investigation. This is done at present by An Bord Telecom in compliance with the common law duty to assist the police in the prevention and detection of crime.
Therefore, while I fully accept and appreciate what Senator Upton is saying, if he goes back and looks at the definition of "interception" and also section 13, particularly section 13 (2), he may conclude that the amendment, strictly speaking is unnecessary.
I thank the Minister for his explanation. If the amendment is unnecessary, fair enough, but I would be concerned that it would be possible to monitor the numbers dialled by an individual and that would not be rendered illegal by the provisions of this Bill. The information obtained simply by knowing the numbers an individual dials on a regular basis provides useful information about that individual which should be kept as a private matter unless there are very grave reasons for not doing so. I take the general comments made by the Minister.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, between lines 23 and 24, to insert a new paragraph as follows:
"or
(c) the use of an electronic eavesdropping device to record a communication by a person to another person without the consent of either person.".
This is a very important amendment. It seeks to include in the Bill the use of electronic eavesdropping devices to record a communication by a person to another person without the consent of either person. Really what we are talking about is the phenomenon which seems to be growing in this country and worldwide where people bug conversations held with other people. It is totally unacceptable that that should happen without the consent of the person whose conversation is being recorded.
There is considerable scope for this at present because some telephone answering machines have a facility where, by simply pressing a button, a conversation can be recorded. That is grossly unfair to somebody on the other end of a telephone line who might be conducting a conversation in a casual manner. The contents of their conversation could be played back to them which could be embarrassing and put them in a compromising position. In some states in the United States of America there is considerable concern about this and the law bans that kind of activity.
If one is telephoning somebody, one must be aware that the conversation could be recorded. It is worse when one engages in conversation with somebody to find that person is rigged with electronic gear so that the contents of the conversation can be played back or transmitted to somebody sitting in a control room and who is monitoring the details of the conversation. It might be possible to plant a bug in somebody's car or on their clothes through the use of appropriate devices and, if so, everything they say over a period of time could be monitored by someone in a control room. That is a totally unacceptable interference with the rights of the individual.
I urge the Minister to accept this amendment. We have had a series of very unpleasant and public incidences in relation to this matter in the past number of years. I do not want to rake over that ground. My concern is that this should be stamped out. To be fair, my concerns would mainly be in relation to business activities where people in the business world may make statements on an off-the-cuff basis and have them played back to them. To be honest, I have often made remarks about people which I would not like to be played back. I have sometimes done so to add a bit of colour to conversations which were otherwise somewhat dull but that type of thing can be compromising. It is totally unacceptable and I urge the Minister to accept this amendment.
I am sympathetic to what Senator Upton is trying to achieve. However, the Bill as drafted is concerned with the interception of postal packets and telecommunications messages in certain circumstances and subject to the controls specified. Telecommunications is taken to have a wide meaning. It covers telephone calls, telex messages and telegrams. However, it is wide enough to include a system of electric signals without wires.
Acceptance of this amendment, however, would extend the scope of the Bill to what is commonly known as bugging devices. As I understand it, what we are dealing with are unauthorised devices attached to telephones. My understanding of Senator Upton's amendment is that it would extend the scope to a bugging device attached to a wall of a premises which would be able to pick up conversations in the room, including one side of a telephone conversation. It is outside the scope of the Bill. I have consulted my officials to see whether that sort of activity is illegal in itself. While I understand that to tap into somebody's telephone and listen to their telephone conversation is a criminal offence and illegal, the situation is less certain, I am sorry to say, in relation to those types of device where something is planted or hidden in a house. That should be made illegal. My recollection is that if one can establish that somebody committed trespass in order to gain entry to the house or committed an offence under the Forcible Entry Act, the Garda would have a role in such a case and one might also take a private action for trepass.
It is something that will have to be taken on board but the advice available to me is that it will have to be taken on board in a different context to this Bill which deals with a specific brief. I agree with what the Senator said and it will have to be taken on board.
I agree with Senator Upton. In the business world people can get a very unfair advantage. We have seen this — not in this country — in major takeovers and transactions on stock exchanges. There could be an enormous advantage for people who have advance advice. Can a fax machine be bugged? This fax machine is the new postal package and it is most efficient. It cuts down on letters from Australia or America. In the past it took a week to send letters to those countries but now it only takes two minutes. I do not know if the fax machine is foolproof but if it is it is another major plus in conducting business and conducting conversation for the future with the result that the bugging machine may not be as effective as it was in the past.
I am disappointed that the Minister seems to be ruling out the amendment. Would he have another look at it to see if anything can be done to include it in the Bill? Senator Cassidy introduced another aspect which had not occurred to me, but I am particularly concerned about recording telephone conversations when somebody does not know that is happening. I suspect that goes on quite a bit in the business world.
I am also very concerned about the use of bugging devices where somebody simply equips themselves with an appropriate microphone and walk up to somebody and engage them in conversation and then set about creating a combination of circumstances which will compromise them. There are 101 different ways that can be done. It can be done in public houses where people are drinking alcohol or it can be done in a certain social environment where people behave in a manner which is different from the way they would behave in a normal business environment. In the past, and in the culture that most of us were brought up in, you were advised that the written word remains: Verba volant, scripta manent. That was the advice given. When you wrote a letter particularly to do with business or legal affairs, you wrote it in full knowledge that what you had written would remain, that it would be a record and you would have to live with that in the context of what developed later. However, that is not how people, particularly in this country, conduct conversations. Many people in this country in all walks of life conduct conversations in a rather colourful manner. Much of the time what is said is not really meant but when it is played back and things are taken out of context it can be very compromising. It is those kinds of concerns that I am trying to cover in this amendment. I would ask the Minister to have another look at the amendment and see if anything can be done within the limitations of the Bill.
I will undertake to look at it. Senator Upton has made a fair point and I think it merits consideration. In relation to the specific questions Senator Cassidy asked, I do not know the technical answer whether a fax machine can be bugged; all I can say is if it is possible to bug a fax machine that is covered by this legislation.
Amendment by leave withdrawn.
I move amendment No. 4:
In page 4, line 32, after "telegram" to insert "and also includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio".
This amendment seeks to broaden the definition of telecommunications to cover things like electro-magnetic radiation, fibre-optics, microwave and radio waves and so on. We introduced this amendment primarily as a way of ensuring that these types of communication are covered by the Bill, and we have also introduced it as a way of trying to discover whether these types of communications are covered by the 1983 Act which established An Bord Telecom. If they are covered by that Act, well and good. We do not have anything to worry about. We are simply introducing this amendment as a precaution to ensure that these developments in technology which, of course, are ongoing are covered by the Bill.
As I said in reply to the previous amendment, the meaning of the word "telecommunications" is very wide. Section 3 of the Telegraph Act, 1869, defines "telegram" as meaning "... any message or other communication for transmission by telegraph". The term "telegraph" is defined in the same Act as including any apparatus for transmitting messages or other communications by way of electric signals. That definition is understood to be wide enough to cover a system of electric signals with or without wires.
The fact that a particular method of telegraph was not invented or contemplated at the time the definition was enacted does not prevent that method from falling within the terms of the definition. Therefore, it appears that "telecommunications" includes a message propagated by electro-magnetic radiation including fibre-optics, microwave or radio. However, in deference to the amendments submitted by the Senator and the points he has made, and in recognition of the fact that it is a very technical area, I will undertake to consult the Department of Communications before Report Stage to see if, in the light of this amendment, the definition of interception as it relates to telecommunications is adequate.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 4, line 35, to delete "aged 21 years or over" and substitute "of full age".
We introduced this amendment to keep the present various definitions in relation to the age of majority in some degree of harmony. People are now given the vote at 18 years and I am puzzled why people who would be allowed to vote should not be covered by the terms of this Bill until they reach the age of 21 years. I would be interested to hear why that should be the case. All we are trying to do is to create a degree of record in relation to the present concept of the age of majority and we have used the term "of full age" as a way of coping with any developments which might take place in relation to that concept in the future.
The definition in this section describes the offence not the person who commits the offence. That is the first point. The criterion is not the offender's age; it is a question of whether, if the offence were committed by, for example, a 50 year old he would be liable on first conviction to imprisonment for five years or more. The offender or suspected offender could be a 16 year old who might not be liable to imprisonment at all. The reference to 21 years has the merit of making it clear that what is being referred to his an offence which if committed by, say, a 50 year old, could on first conviction be punishable with imprisonment for five years or more.
It is also important to note that section 2 (3) of the Age of Majority Act, 1985, provides that in any statutory provision passed on or made before the commencement of that Act, a reference to 21 years has effect as if it were a reference to full age — in other words, 18 years of age. There are exceptions and among references to 21 years of age not affected is any statutory provision relating to prisons, to St. Patrick's Institution or to any other place for the custody of persons. Under section 13 of the Criminal Justice Act, 1960, a person between 16 and 21 may be sentenced to be detained in St. Patrick's in lieu of a term of imprisonment.
Not being a lawyer, I am puzzled by the Minister's reply which seems to be very technical. As I understand it, what the Minister said is that we are working our way back to the concept of somebody being 18 years of age through a long and winding legal process. I wonder if it would not be easier for the average person who might take to reading this type of Bill if we simply said "of full age" rather than saying "aged 21 years or over" and then having to consult three or four other Bills before we finally work our way back to the fact that it actually does cover people who are 18 years of age and older. If that is not the case, then it opens up the possibility of people over the age of 18 years and people under the age of 21 years being tempted to involve themselves in this type of process in the knowledge that the provisions in the Bill would not be as severe in terms of the sanctions which would be meted out to people who engaged in telephone tapping, interfering with post, etc. That would be undesirable and particularly so in the context of our young people at present who are very well informed in terms of electronics. Indeed, some of the people more capable at hacking into computer systems as far as I am aware are computer students and electronic engineering students, many of whom would be under 21 years of age.
I take the point the Senator is making. I do not think the sky would fall in if we made the change he suggests and I shall recommend that we look at it with a view to meeting his wishes in this regard.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 4, lines 42 to 44, to delete subparagraphs (ii) and (iii).
The basic reason for the introduction of these amendments is the fact that the items we are seeking to delete are very vague and are open to all sorts of interpretation. We would be very anxious that the notions, the ideas and the concepts which are covered in these definitions would be covered in a more specific manner than is the case. What is a substantial gain? For some people, a substantial gain would be a substantial amount of money; for other people a substantial gain would be a very small amount of money. Where do you draw the line in such matters? I certainly hope it would be possible to be a good deal more specific in relation to the provisions outlined here.
On the face of it, it does look rather vague. However, section 4 which sets out the conditions justifying interception for the purpose of criminal investigation provides inter alia that the offence being investigated must be a serious offence. The definition of “serious offence” in section 1 sets out the conditions that must be satisfied before an offence will be considered to be serious for the purpsoe of interception. An offence is defined as serious if it is one for which an adult would be liable to imprisonment for at least five years and which involves loss of life, serious personal injury, serious loss of or damage to property or a risk of this; substantial gain; or if it is an specially serious offence of its kind. Such offences committed abroad or attempts, incitement or conspiracy to commit such an offence are also included.
The definition of "serious offence" in the Bill is already very restrictive. For example, the British definition of "serious crime" in the 1985 Interception Act states that a crime shall be regarded as serious if
(a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or (b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.
In their case, the two parts of the definition are alternatives whereas in our case they are conjunctive. Therefore, the definition is very restricted and I do not propose to accept any amendment which would restrict it even further.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
Section 1 agreed to.
NEW SECTION.
I move amendment No. 8:
In page 5, before section 2, to insert the following new section:
"2.—No interception shall be lawful unless carried out under and in accordance with an authorisation under this Act.".
This amendment seeks to close off loopholes in the law whereby it would be possible to make interceptions under the terms of another Act. In other words, interceptions could be lawfully made outside the scope of this Bill and that would allow a way to get round the provisions of the Bill. Under the various other Telecommunications Acts, it might be possible to intercept post or indeed to intercept telephone messages and that would completely destroy the purposes of the Bill and would provide a back door way of continuing with unlawful interception despite the introduction of this Bill. That is the primary reason for this amendment.
I accept the spirit of what Senator Upton is saying but I think on reflection he will agree with me that, strictly speaking the amendment is unnecessary. Sections 84 and 98 of the Postal and Telecommunications Services Act, 1983 make it an offence to intercept postal packets and telecommunications messages. Therefore, all such interceptions are unlawful, apart from when they are carried out under one of the exceptions referred to in these sections. One of the exceptions is that the interception was carried out in pursuance of a direction issued by the Minister for Communications under section 110 of the 1983 Act. Under section 110 one of the directions which the Minister may issue either to An Post or Bord Telecom is "to do (or refrain from doing) anything which he may specify from time to time is necessary in the national interest".
Section 3 of this Bill provides the link between the 1983 Act and this legislation. It provides that a direction by the Minister for Communications, if it is one requiring an interception, shall be given or remain in force only if and for so long as there is in force an authorisation by the Minister for Justice applying to the interception.
The effect of this amendment would be to make unlawful interceptions carried out at the request of a person who is receiving obscene phone calls or where an interception is necessary as part of operational duties where, for example, a telephone line is being installed or maintenance work is being carried out on it. Therefore, as the substance of the amendment is already covered by existing legislation and this Bill and it would have other very undesirable consequences. I do not feel disposed to accept it.
May we take it as a matter of certainty that there is no back door way around the provisions of this Bill? If that is so, it is fine but if it is not the case then I would be very concerned at the existence of such ways around the Bill. That is all I am trying to do with this amendment.
As I understand it the Bill must be read in conjuction with the Postal and Telecommunications Services Act, 1983 and if read in conjunction with that legislation, particularly sections 84 and 98, I think the situation is totally water-tight.
Amendment, by leave, withdrawn.
SECTION 2.
An Leas-Chathaoirleach
Amendments Nos. 9 and 10 are related, amendment No. 11 is consequential on amendment No. 9 and all may be discussed together.
I move amendment No. 9:
In page 5, subsection (1), line 5, to delete "Minister" and substitute "High Court".
Basically what we are trying to do here is to ensure that there would be some judicial involvement in the giving of authorisation and we are suggesting that for a number of reasons. First, we feel it would be an appropriate way to do it but, in addition to that, I also understand that the European Court of Human Rights suggested, as distinct from demanding, that there should be judicial involvement in the types of authorisations covered in this part of the Bill. I also understand this is the case in the United States of America.
I am not suggesting for a minute that what they do in America should set the headlines for what we do here but I think it is an important point and it is particularly important in the context of the suggestion which was made by the European Court of Human Rights. Unfortunately, I do not have the date of the judgment although I have a recollection that it might have to do with a West German who was involved in some case at the European Court of Human Rights. That is the main concern and the principal idea behind the introduction of this amendment. Essentially what we are seeking to do there is to have a judicial involvement. We have suggested that it should be by way of High Court involvement but the essential point is that it should be judicial.
Under one of the safeguards being introduced in this legislation a High Court Judge will be involved. It is basically a question of policy. The task of deciding whether a communication should be intercepted in particular circumstances or if the security of the State is endangered, is essentially an executive function and has been regarded as such by every Government since the foundation of the State. Indeed, it is so regarded in other jurisdictions. I cannot think of any jurisdiction, certainly any democracy, and democracies are all we are talking about in this context, where matters relating to the security of the State are endangered is other than an executive function.
The Minister will have the advice and recommendation of a nominated officer of his Department to assist him in making his decision. A judge would not have such assistance. It would be most undesirable to involve the Judiciary directly in secret operations relating to the investigation of crime or the security of the State. The more logical and reasonable approach is to have the authorisation issued by a member of the Executive and to have a member of the Judiciary oversee the system. There are other pragmatic arguments against giving a judge power to authorise interceptions but I am basing my argument on principle and I need not go into them here.
Amendment No. 10 is unworkable as it refers to the giving of the authorisation. I am opposing amendment No. 11 on the grounds that it would not be appropriate or practical for the Minister to consult the judge before deciding on every case. However, where the Minister is doubtful about a particular application, maybe because of some comments by the judge in his report, he may consult the judge. That seems quite sensible and I see no reason to change it.
In any case, it may not always be feasible for the Minister to consult with the designated judge before a warrant is issued. In cases of exceptional urgency the Minister may give an authorisation orally, but in such cases, of course, the authorisation must, under subsection (2), be confirmed by the Minister as soon as possible by a written warrant.
Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.
Section 2 agreed to.
NEW SECTION.
I move amendment No. 12:
In page 6, before section 3, to insert the following new section:
"3.—Where an authorisation ceases to be in force, the person whose communications were interpreted under the authorisation shall be informed by the Minister of the fact of the authorisation unless the Minister considers that to do so would jeopardise a criminal investigation or prosecution or the security of the State.".
Essentially what we are trying to achieve with this amendment is to ensure that if someone's phone has been tapped and it is found that there is no basis for a criminal charge, in other words if the person is innocent of whatever they are suspected and the tapping process does not provide any useful information, and if it is then discontinued because it was found to be useless or not providing the evidence being sought, we are suggesting that the person whose phone was tapped should be informed that they had been under surveillance for some time and the surveillance did not reveal anything which was illegal or unacceptable. In other words, if someone's phone is tapped and the results of that tapping have turned out to be negative, that person should be informed that that had happened rather than putting people under surveillance and not giving them any information about it.
I am opposing this amendment as to accept it would run counter to what the Bill is attempting to achieve. It is probably fair to say that the underlying approach of this Bill is that nobody has a right to know whether their phone has been lawfully tapped whereas everybody has a right to know that there has or has not been a contravention of the Act in relation to them. It would be a serious weakness in the system of interceptions if persons could find out, or as this amendment suggests, be told, that authorisations had been given in relation to them. Indeed, I would go so far as to say that if people could gain access to such information, even in the circumstances envisaged by the amendment, it would be questionable whether the system of interception could survive as an effective system. There is no injustice to the person whose communication was intercepted in not readily knowing whether there was an authorisation.
The Bill provides the specific remedy of the complaints referee where a person believes there was an interception of his communications. Where a person believes that a communication sent by him or to him has been intercepted he may make a complaint to the referee and ask to have the matter investigated. The referee will investigate whether an authorisation for interception was given and, if so, whether the provisions of the Act relating to the application were complied with. If the referee finds there was a relevant authorisation but that there was a contravention of the specified provisions in relation to the authorisation, he must notify the person concerned of his conclusion and report his findings to the Taoiseach. Among the matters he may then do is recommend the award of compensation which the Minister, as I read the section, will be obliged to pay. If the referee concludes that there was no contravention of the specified provisions of the Act relating to a relevant authorisation, he will notify the complainant to this effect.
Any authorisation given under this Bill will be given in the knowledge that that authorisation can come under the scrutiny of an independent judicial authority of high standing. That is the surest guarantee that authorisations given under this Act will be proper authorisations and that the Minister's approach to this will essentially be careful and conservative.
I am pleased to hear that the approach will be careful and conservative. I also think it is fair to point out that we have provided some important exclusion provisions in this amendment. We have suggested that the amendment would not apply where the provision of the information would jeopardise a criminal investigation or prosecution or the security of the State.
You can look at it the other way. The idea of providing certain powers to the Minister is to intercept communications when a serious crime is suspected, when a serious crime is in process or when the security of the State is in danger. The legislation, as I understand it, puts the present common law position on a statutory basis and introduces two very comprehensive new safeguards into the system. On reflection, if you look at the safeguards and the way they are spelled out it will be very easy to resist the temptation to abuse the powers which the Minister is being given under the legislation.
The fact that it is going to come under independent judicial authority will ensure that if there is any flagrant abuse that will come to light. That is specifically why that particular safeguard is put in there. The other safeguard is to provide a remedy for the person whose rights have been interfered with by his telephone being improperly tapped or his communications interfered with. As the law stands — and this is not being interfered with by the legislation — a person whose communications have been improperly interfered with would have a right of action for a constitutional invasion of his privacy. There is a recent precedent for that; the action was upheld and damages were awarded.
I am sure Senator Upton will agree that not everybody can suddenly decide to take a case to the High Court because of the costs involved. This legislation would provide a simple and speedy remedy — not an alternative but an additional remedy — for the person aggrieved in those circumstances. I read this legislation this morning and the safeguards are comprehensive. Even as things stand, abuse of the system has not been great. If you look at the history of the State since 1922, abuse of the system has not been widespread. When you put those safeguards in to a situation that has not been widely abused, the danger of flagrant abuse in the future will be minimal.
I tend to agree with the Minister. We are talking about investigating serious crime as defined in the Bill. If one were to generalise the spirit of this motion as it affects all criminal investigation it would mean that anybody who came under investigation by the Garda and was found innocent of any offence would be entitled to be informed of the fact. The safeguards in the Bill are adequate to cover the concerns people might have and to go any further than that would create considerable difficulties for criminal investigation.
We can interpret this in a number of ways. If a person who has a reputation of being up to no good has been informed that his phone has been tapped and the results have been negative, in many ways it might put them on guard that what they are at is unacceptable and it might be advisable to desist. In other words, they may feel they are under suspicion and they may begin to change. The strongest factor that prevents people from committing crime is the knowledge that they will be found guilty. That is far more important as a deterrent than savage sentences. It is possible to interpret this matter in a number of ways. I accept the points made by the Minister.
I am concerned when the Minister talks in terms of the number of abuses of the telephone system in this country over the years having been very small. I suspect the abuses which were grave may have been very small in number but I am sure the Minister has heard the story of the postmistress in a post office in a part of Ireland that I will restrain myself from naming, who during the course of a telephone conversation between two subscribers when one suggested you had better be careful about what you say because these phone calls are listened to interjected and said: "They certainly are not."
Amendment, by leave, withdrawn.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 13:
In page 6, before section 4, to insert the following new section:
"4.—A person who carries out an interception in accordance with this Act shall not be guilty of an offence under any of the following provisions:
(a) sections 50, 51, 53 and 62 of the Post Office Act, 1908;
(b) section 3 (3) of the Wireless Telegraphy Act, 1926;
(c) sections 37 and 99 of the Act of 1983; or
(d) section 3 (1) of the Broadcasting and Wireless Telegraphy Act, 1988.".
This amendment is introduced as a safeguard for those people who legitimately carry out telephone tapping under the provisions of this Bill. It is introduced to safeguard them from prosecution under various sections of a variety of other Acts of the Oireachtas — the Post Office Act, 1908, the Wireless Telegraphy Acts of 1926, of 1990 and of 1983 and the Broadcasting and Wireless Telegraphy Act, 1988. The concern here is that the people who legitimately carry out this type of work under the provisions of this Act may be subject to prosecution under another Act. I would like to hear the Minister's view on this and I would be anxious that he could give us assurances in relation to this matter if he does not accept this amendment.
Senator Upton may have a point. I am told by the officials in my Department that the amendment arrived last evening and they did not have time to examine its full implications. In the event, there may be some substance to it. I will have it examined on Report Stage to see if it can be included in all or part.
I thank the Minister, and I look forward to hearing his views on this matter on Report Stage.
Amendment, by leave, withdrawn.
Sections 4 and 5 agreed to.
NEW SECTION.
I move amendment No. 14:
In page 8, before section 6, to insert the following new section:
"6.—(1) The implementation of an authorisation shall intrude on the communications of the person concerned only to the minimum extent necessary to achieve the object of the authorisation.
(2) Communications by members of the Oireachtas made from Leinster House, or communications between lawyer and client shall be immune from interception, and any copies of such communications made shall be destroyed immediately upon their nature becoming known.".
There are two items covered under this amendment. One is a straightforward, sensible provision which suggests that the interference during the tapping of phones should be confined to a minimum. I understand this has also been suggested in a judgment from the European Court of Human Rights. I may have been mistaken when I spoke about a German taking a case. It was in relation to this matter that a German national took the case.
In the second part of the amendment we are suggesting that some communications should be privileged. Communications made by Members of the Oireachtas from Leinster House should be privileged. Statements which are made in the House are privileged and we are suggesting that that privilege should be extended to matters covered by way of communications from Leinster House. We are also suggesting that communications between lawyers and clients should be exempt from interception.
I understand there is a long-standing acceptance that information given by clients to their lawyers in the pursuance of their legal business is privileged and are seeking to extend the provisions of this Bill to cover that aspect. It is mainly of concern in relation to dealings which lawyers would have with their clients, and the possibility that telephone messages could be intercepted legally in those circumstances. This would introduce an unnecessary level of caution in the manner in which lawyers deal with their clients where it would be necessary for the client in all circumstances to come to talk directly to the lawyers rather than conduct the same business over the telephone.
There are two parts to this amendment and I will deal with them both separately. I agree with Senator Upton that communications should only be intruded upon to the minimum extent necessary to achieve the purpose for which the authorisation is sought and given in the first place. However, the Bill is designed in such a way that the substance of this amendment is achieved. For example — and these examples are not exhaustive — a warrant has duration of only three months, unless extended — when all the original reasons for the authorisation still exist at the time.
Under section 7, the Commissioner or Army officer can have interception stopped before the three months are up when they are no longer required. Section 12 deals exclusively with restrictions of disclosure of the existence of authorisations and of the contents of any communications intercepted. Therefore, the substance of Senator Upton's amendment is already well catered for. When the courts are interpreting legislation, what they tend to do is not just look at the section, subsection, line or word to be interpreted but they look at the content of the legislation to get the drift of the legislation. It is obvious to me looking at the drift of those sections that the approach is a minimalist one.
The second part of the amendment seeks to make Members of the Oireachtas when in communication from Leinster House or in communications between a lawyer and client, immune from interception. Presumably, it is authorised interceptions the Senator is talking about. It is unacceptable to pick out two groups and make them immune. It would also be unconstitutional. Why not include other persons, for example, doctor and patient, accountant and client? There are many other examples.
Interceptions under this Bill can only be authorised for the effective investigation of serious crime and in the interests of the security of the State. It does not matter who is plotting a crime or subverting the State, whether it be a Member of the Oireachtas, a lawyer or his client. I know it is unlikely in the extreme that the persons referred to in the amendment would ever be involved in the activities mentioned but I argue that it would be invidious, and possibly unconstitutional, to make any exceptions. Therefore, I cannot single out TDs, Senators and lawyers and deal with them in a different way to the rest of the world.
I am sure I am encouraged by the Minister's confidence in the integrity and propriety of Members of the Houses of the Oireachtas and, indeed, of the legal profession.
Amendment, by leave, withdrawn.
SECTION 6.
I move amendment No. 15:
In page 8, subsection (1) (a) (ii) (II), to delete lines 16 to 19 and substitute the following:
"Chief of Staff of the Permanent Defence Force.".
This amendment speaks for itself in that the Commissioner of the Garda Síochána must sign the authorisation. The same thing does not apply to the Defence Forces; the Chief of Staff of the Defence Force is not required to sign the authorisation for the tapping. Because it is such a serious decision and for reasons of consistency, I would welcome the Minister's views on why the Chief of Staff of the Defence Forces is not the designated person, when the Garda Commissioner is in the case of the Garda Síochána?
Section 6 sets out the procedures which must be followed before the Minister for Justice may issue an authorisation for interception. An application must be made in writing by the Garda Commissioner where the authorisation is for the purpose of criminal investigation. Where the authorisation is in the interests of the security of the State it must be made either by the Commissioner or
an officer of the Permanent Defence Force who holds an army rank not below that of colonel and is designated by the Minister for Defence for the purposes of this Act,
The amendment seeks to delete those words I have quoted and to replace them with the words in the amendment. I cannot accept that applications for authorisations from the Defence Forces should be made by the Chief of Staff.
The position of the Garda Síochána and the Defence Forces in this respect are not comparable. There are many senior officers within the Garda Síochána who have responsibility for preventing or investigating crime in particular areas or of preventing or investigating particular types of crime. Similarily, in security matters operational responsibilities do not devolve on one officer alone. It would be intolerable if all these officers could apply direct to the Minister for Justice for authorisations for interception.
The position in the Defence Forces is totally different. There is no need for application to be channelled up to the Chief of Staff as usually they would be coming from one source — a senior military officer who would be designated by the Minister for Defence for the purposes of the Act. That office would, under section 6 (1) (c), have to submit any application to the Minister for Defence who would in turn have to make a recommendation in writing supporting the application.
Therefore, I think Senators will agree that there is no need for applications from the Defence Forces to come through the Chief of Staff. It would add an unnecessary layer of repetition to the application process.
Also, as with all procedures in the Bill, the designated judge, with his power of investigation, will be in a position to ascertain whether the provisions of the Bill in this respect, as well as in every other respect, are being complied with.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.
Amendments Nos. 16, 17, 18 and 19 are related and may be discussed together.
I move amendment No. 16:
In page 9, subsection (1), line 9, to delete "President of the High Court" and substitute "Chief Justice".
In this amendment we are seeking to enhance the status of the level of the Judiciary involved in reviewing the case. We are also seeking to make the review process independent of the Minister, in other words that the President of the High Court shall from time to time use his initiative rather than having to consult the Minister. The Minister spoke about the dangers, difficulties and problems associated with consultation. It would be disingenuous of me to start quoting those remarks back to him now, because I was using the other side of those remarks when I was trying to make my case. Essentially, that is the basic idea behind the amendments. We are also anxious to ensure that the tenure of the judge would be specified for a number of years rather than on a hire and fire basis.
This amendment is concerned with the appointment and terms of office of the designated judge, that is, the judge who is designated to overview the situation. It is appropriate that the President of the High Court invite the High Court judge to undertake the duties specified in section 8. This is because of the duties of the President of the High Court in the allocation of business among High Court judges. It is the President of the High Court who allocates business among his brother judges in the High Court. I can see no reason, given the nature of the duties that the judge will be taking up, that the President should not consult with the Minister. The judge will be designated by the Government after his name is brought to Government by the Minister. The President only has to consult with the Minister. It will be his decision whom to invite.
It would be out of the question that the designated judge should be a judge of the Supreme Court, although that possibility was in the original Interception Bill, but it was deleted for the following reason. Having regard to the duties which would be imposed on the designated judge under section 8, there could be no question of such a judge, having been invited to act, taking part in any criminal trial or in any appeal from a criminal trial. This is because of the nature of the information concerning persons believed to be criminals or engaged in criminal activities which will come to the notice of the judge.
In such circumstances, the Supreme Court judge could not be invited to carry out the task. It is most desirable, unless for very special reasons, that, in particular, criminal cases including appeals direct from the Central Criminal Court to the Supreme Court and references to the Supreme Court from the Court of Criminal Appeal, be tried by a full court. It would be undesirable, therefore, that one particular member of the Supreme Court should at any time be unavailable for taking part in such cases, which would happen if a Supreme Court judge was the designated judge.
What they seem to be saying is that the Supreme Court is the direct court of appeal from the Court of Criminal Appeal. If there is a criminal appeal from that court to the Supreme Court, it is the usual and accepted practice — and there are very good reasons — that it should be heard by a Supreme Court of five judges. Sometimes the Supreme Court can sit with three judges but in appeals involving points of criminal law, it is felt it is most desirable that the five judges should sit. If the designated judge was a Supreme Court judge, it would mean that they would have to revert to three because he would be unable to sit in on those appeals because of the information that came to him during his duties as a designated judge for the purposes of this legislation.
It would be inappropriate to specifically designate a judge for a fixed term such as five years. He will hold office in accordance with the terms of his designation and this could be for a term which is suitable to him. His views would have to be taken into account.
The Bill does not allow for ex-judges to act as the designated judge. It is possible that the judge the President of the High Court might want to invite would be within five years of retirement and the Act would not wish to frustrate the President by making it impossible for his choice to be designated.
Amendment, by leave, withdrawn.
Amendments Nos. 17 to 19, inclusive, not moved.
Acting Chairman
Amendments Nos. 20 and 21 are related and may be discussed together.
I move amendment No. 20:
In page 9, subsection (2) (a), line 19, to delete "two years" and substitute "one year".
I put down this amendment because I feel, especially in the earlier period, there would be a need to get credibility for the implementation of the legislation. An annual report by the referee should be completed rather than at vague intervals, as it says in the present Act, of not more than two years. We should firm up on that requirement. I would welcome the Minister's views on that matter.
The Minister undertook on Second Stage to look again at the two yearly interval timescale in relation to section 8 (2) (a) to see if there was any case for reducing it to a one yearly interval. I have come to the conclusion that there would be nothing to gain from such a reduction. It would do nothing to improve the Bill or, more particularly, the interception scheme which forms the core of the Bill.
It is the intention of the Bill to give the designated judge as much flexibility as possible in performing his functions under the Act. It is in keeping with his independent role that he should be free to decide how best to perform those duties. However, because of the important role the judge would have in controlling the functions of the Minister for Justice in respect of interceptions and the central place of his report and his review of the operation of the Act, it is proposed in the Bill to place a stated maximum timescale between the production of those reports. The Bill proposes intervals between the reports of not more than two years, as the judge thinks desirable. Of course, this means that he can report at intervals of less than two years. This is in accordance with giving him flexibility in deciding when, and for what reason, he wishes to report, the only restriction being that not more than two years may relapse between one report and another.
Acceptance of this amendment could have the effect of the judge reporting every year to the Taoiseach rather than on occasions where he considered appropriate or desirable. I contend that the provisions of the Bill in this respect are the most appropriate for a person of a standing of a senior judge who will be an experienced and responsible person who can be relied on to carry out his duties in the most appropriate manner.
Amendment No. 21 simply would not work. Reports under subsection (2) (b) are in addition to the reports under paragraph (a). They would arise in relation to any matters which the judge considers should be reported. These reports are unlike periodic reports in that they will have nothing to do with time or time-scales. They will arise only when issues arise in relation to the Act which are considered by the judge to require reporting to the Taoiseach. Therefore, placing any timescale on these reports would not seem to me to make sense.
In addition to the reports under subsection (2) (a) and (b) and the specific circumstances they would cater for, under subsection (4) the judge has the additional power to communicate with the Minister for Justice or the Taoiseach on any matter concerning interceptions which he considers desirable. The Senator may not fully agree with that, but to me it makes sense. You are dealing with a senior member of the Judiciary who will know what to do. The fact of the matter is that the two year designation does not mean that the judge comes in and makes his report on a standard basis every two years. He could come in on 26 December, and on 26 December two years time he could come in with another report. He can report as often as he likes but we would not envisage that at all, of course.
On the other hand, I would anticipate — and I am just making a guess as to how the legislation will evolve in practice — that if you compel the judge to report on a yearly basis it may be that in some years he would have nothing at all to report. As I say, he can report as seldom or as frequently as he wishes. The only guideline or requirement is that not more than two years must elapse between one report and another. I think that it is sufficiently flexible, particularly in view of the character of the person who will be doing the reporting.
Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section 8 agreed to.
SECTION 9.
I move amendment No. 22:
In page 10, lines 9 to 16, to delete subsection (1).
This amendment seeks to deal with a recurring theme, not just in this Bill but in a whole series of Bills, including the Electoral Bill. It makes the sweeping statement that if an authorisation is invalid then the findings of that authorisation will not be declared null and void or, for that matter, will they constitute a cause of action at the suit of a person affected by the authorisation. In many ways what this provision seems to do is to give, as it were, a free hand to people who are involved in unauthorised interceptions and that is unacceptable. In many ways they seem to be free from prosecution, and indeed free from sanction.
Deletion of section 9 (1) would run counter to the policy underpinning this legislation. Subsection (1) provides that a contravention of the specified provisions of the Act or a failure to fulfil the conditions specified in sections 4 and 5 will not make a relevant authorisation unlawful or constitute grounds for court proceedings but this will not affect any cause of action for the infringement of a constitutional right. I have already said that. This provision expressly allowing a cause of action for the infringement of a constitutional right recommends a significant change from the 1985 Bill to which Senator Upton's party were a party. The 1985 Bill was agreed by the Fine Gael-Labour Government. It did not give any right of action at all. We are allowing here an action for the infringement of a constitutional right. The background is as follows.
In 1987 the High Court gave its decision in the case of Kennedy/Arnold v. Ireland and the Attorney General. The court held that the unenumerated personal rights guaranteed by the Constitution include a right to privacy in respect of telephone conversations and the right to hold such conversations without deliberate, conscious and unjustified interference and intrusion by servants of the State. The court added that the right to privacy is not an unqualified right. Its exercise may be restricted by the constitutional rights of others and was subject to the requirements of the common good and to public order or, that word again, morality. In the light of that decision there would be a risk of a successful constitutional challenge to the Bill if it sought to preclude a cause of action for a breach of the provisions of the Act. Hence the changes that have been made make the provision of section 9 (1) inapplicable to a cause of action where a breach of the provisions of the Act also constitutes a breach of an individual's constitutional rights.
A restriction on the complainant's right to take proceedings in the courts in so far as that is possible is necessary because of the need to preserve the essential secrecy of the system of interception and to prevent criminals or subversives from instituting proceedings as a "fishing expedition" to find out whether or not their communications are being intercepted by the authorities.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 23 and 24 are related. Amendment No. 25 is consequential on amendment No. 24 and all may be discussed together.
I move amendment No. 23:
In page 10, subsection (2) (b), lines 22 to 24, to delete "the Circuit Court, a judge of the District Court or a person who is for the time being a practising barrister, or a practising solicitor, of not less than 10 years' standing" and substitute "the High Court".
We are really suggesting here that the functions covered in this part of the Bill should be confined to the High Court. We are not very concerned about Circuit Court Judges or District Court Judges being involved. That is reasonable enough, but we would prefer a higher level of status through the involvement of the High Court. We are particularly concerned that the people who are involved should be practising solicitors or barristers. Certainly, where the Judiciary are involved they have a solemn obligation and indeed a very well merited reputation for being fair and objective in all the matters with which they deal.
While I do not want to cast aspersions on practising barristers or practising solicitors of more than ten years experience, some of these gentlemen are straightforward political hacks of the highest order of "hackery." They are to be found outside polling stations. This is quite a legitimate function. There is nothing wrong with that and, dare I say, some of these chaps support me and some are friends of mine. I do not think it is a good idea that these type of folk should sit in judgment on matters which would be considered to be exceptionally sensitive, which they can be in certain circumstances. We had the case, to which the Minister alluded a few minutes ago, which was a clear example of a very sensitive matter. I would not like to think that some of these straightforward political partisans would be appointed to investigate, referee and make judgments on the guilt or innocence of certain people, who could be their political opponents or perceived to be their political opponents. This, of course, would be relevant in the case to which the Minister alluded. It would be most undesirable if that were allowed to happen.
I am not suggesting that it would happen in all cases because I am sure it would not. Indeed, in case I am misinterpreted, I want to say I do not see any problem with most barristers and solicitors sitting in judgment on these matters. I am sure they are fair minded and have experience dealing with the law and difficult issues. The potential exists for the appointment of political hacks to sit in judgement on very sensitive matters and I do not think that possibility should exist.
The purpose of the Bill was a good one. It set about introducing a level of fairness and protection for ordinary citizens who are going about their business in a legitimate manner. If disputes arise it is highly desirable that the people who referee those disputes should be beyond reproach, and nobody should have any doubts as to their independence. Lest I seem exceptionally critical of political "hackery" may I say there are a number of political hacks, who would be fair if they were acting in the role of referee but the public perception would not be like that. If somebody who has been clearly associated with a political party is appointed to referee a dispute, that is unacceptable no matter how fair minded that person is because his credibility will be compromised and regardless of his decision, certain elements of the public simply will not accept it.
I agree with the sentiments expressed by Senator Upton. This is one amendment the Minister should take on board. The credibility of the Bill and of the complaints referee system is very important to the spirit of the Bill. The Minister spoke about a senior judicial person as the designated judge, and the same applies here. The more senior the person the more credibility the system will have. I do not want to discuss political hacks——
They are not confined to this House.
I agree with Senator Upton that the appointment of a political hack as a referee would damage the credibility of the complaints referee system. No doubt Ministers might appoint somebody who is favourable to them, who has assisted them or their friends. For the credibility of the complaints system, a member of the Judiciary should be the complaints referee.
Senator Upton is unhappy that solicitors or barristers of at least ten years standing be appointed to the responsible position of referee to investigate whether an interception under this legislation has been validly authorised. The Senator is happy, on the other hand, with the Judiciary being appointed, with Circuit Court judges or High Court judges. We have to ask ourselves who are Circuit Court judges, High Court judges or, Supreme Court judges but people who have been practising at the Bar for a minimum of 12 years. Who are district justices but people who have been practising at the Bar or practising as solicitors for a minimum of ten years? If a person can be appointed to sit in judgement in any dispute that may arise, even when a man is on trial for the most serious crime, and if that person's qualification for the office he then holds is that he has practised at the Bar for 12 years, I do not see why somebody who has practised at the Bar for ten years should not be able to act as a referee in these types of cases. The point is not really valid.
In relation to the question of political "hackery" I take the Senator's point but we must not work from the assumption that members of the legal profession, or any other profession who are involved in politics, who have a sense of public duty and public commitment and are perhaps actively involved, should be disqualified. I would argue the opposite case. When appointing a judge, I would prefer to appoint somebody who had an interest in public life and public affairs, and demonstrated that interest by activity, rather than somebody divorced from reality, who confines himself to a dusty office or law library and who would spend all his time prancing around the Four Courts wearing 17th century dress. It is more important to appoint people who are in touch with reality.
Amendment No. 23 seeks to restrict the office of complaints referee to a High Court judge. That is unacceptable. In the context of my opposition to amendment No. 18 alone, this amendment would be unacceptable. The roles of designated judge and complaints referee are totally different and it is only right that they should not both be High Court judges. The designated judge will be keeping the operation of the Act under review. His is an overview responsibility, ascertaining whether these provisions are being complied with and reporting to the Taoiseach. The role of the referee will also be very important but it will be different. It will be one of investigating complaints and would be suited to the categories of persons specified in section 9 (2) (b).
I am opposing amendment No. 24 and, as amendment No. 25 is to some extent consequential on amendment No. 24, I am also opposing it. The person who will be appointed to be the complaints referee will be appointed for a term of five years and will then be eligible for re-appointment. It will not be a question of employing a person or a different person every time a complaint is made to investigate that complaint. The person who accepts appointment to the office of referee will be taking on, and will have to be prepared to take on, a long term commitment. Anytime within the period of five years, or maybe longer, he will have to be in a position to carry out an investigation. Of course, it remains to be seen how many investigations will be necessary as that cannot be predicted at present.
Given long term commitment to the job, it is only right that the Taoiseach should not be too restricted in who he can appoint. It will be important to get the right person with the necessary legal experience who can make the commitment in advance to the job. Of course, that person might well be a judge of the Circuit or District Court. All subhead (2) (b) does is to give the Taoiseach greater options when making the appointment.
Amendment No. 25 is partially consequential on amendment No. 24 in that if persons other than a Circuit or District Court judge were unable, due to amendment No. 24, to become the referee, the question of remuneration would not arise. That is because under Article 35.3 of the Constitution no judge shall be eligible to hold any other office or position of emolument. However, they can receive expenses so, regardless of the fate of amendment No. 24, of paragraph (d) (ii) will have to stay. However, the question does not arise as I am opposing amendment No. 24.
The Minister's reply does not, unfortunately, allay any of my fears which centre on the credibility and acceptance of the decision of a certain type of barrister or solicitor who can be appointed. I do not dispute that a number of those I have termed political hacks, who are barristers and solicitors, would be fair. I accept that many of them would give a fair decision but some of them would not. The trouble is that there will be people who will say that as they belong to "the other crowd" that will compromise their position.
There is a fairly significant difference in relation to judges, barristers and solicitors. Judges do not any more have to depend on obtaining briefs, they no longer have clients. Accordingly, the amount of money that will flow into their pockets will not be influenced by certain business elements and the interests and concerns of their clients. My worry about the provisions here is that it will allow for people who are closely identified with political parties to referee. I do not think that is desirable. I believe that whoever is appointed should be seen very clearly to be away from the political process.
I was also interested in the Minister's remarks about judges how they became judges and so on and I agree with many of his remarks. The practice certainly seems to bear it out because many of the people on the bench have had a history of knocking on doors, standing outside polling stations, writing leaflets, writing policy matters and all that. To be fair to these people, once they got on the bench they have been quite fair. I do not have any objection to the way they have behaved themselves over the years. Broadly speaking, one could not but admire the way they have carried on. One also could not but admire the way they were able to distance themselves from their past background and the honourable way they faced up to their duties and obligations to be fair and balanced. I believe that is true of people who made their way onto the bench from a background of activity with the whole series of different political parties.
Like Senator Upton I am not happy the Minister has not accepted our proposal. Is it true that the Judiciary are appointed by the politicians but since the foundation of the State they have established a credibility and an independence which has served the State well. We are asking the Minister in the light of that record to give this section of the Bill dealing with the complaints referee a status and standing with the public which will make it fully acceptable.
Like Senator Upton, I believe there will be questions asked about the appointment of barristers and solicitors, why they were appointed, and an investigation into their background. Any semblance of a conection with a political party will be paraded, as Senator Upton said, as an incorrect appointment for political reasons.
I believe the Minister should look again at the amendment. It would enhance the legislation and status of the complaints referee in the view of the people with whom it must obtain acceptance.
I can recall about a year and a half ago a senior counsel who had practised at the Bar for some 20 years who was closely associated with a political party; in fact was election agent for one of the candidates in the past two general elections. He was appointed to the High Court bench on a Friday and on the Monday he was trying a man for murder. If somebody 48 hours after being appointed could sit in judgment on a person who was on trial for murder, I do not see why a person could not on appointment sit in judgment in these sort of cases. However, in deference to the views of the Senators I will look at it again.
We are not trying to set up an industry of political hackery in the country. We are saying there is only a limited number of judges. From that limited number there are certain judges who spring to mind immediately — like Senator Upton in an earlier context I will resist the temptation to name them — who would be entirely inappropriate, as experience has, unfortunately, shown us, to act as referees for the purpose of this legislation so we are down to a small number. All we are doing is giving ourselves extra options if we need to call on some experienced solictiors who have a high standing or experienced members of the Bar. That is what we intend. If we have to go outside the Judiciary they are the kind of people we intend to approach. I envisage the Minister will approach the Judiciary in the first instance.
I can give the House that assurance but in deference to Senator Upton and Senator Neville and to the fact that we are serious about this legislation, I am prepared to reconsider the matter. I am giving no commitment now but I will reconsider what they have said between now and Report Stage.
I thank the Minister for the commitment he has given. May I suggest to him, whatever the outcome of his reconsideration, that it would be particularly worthwhile to have a statement in this section to the effect that if somebody is a member of a political party and a practising barrister or solicitor that would bar him or her from being appointed to that position. I believe if they are a member of a political party as far as the other crowd are concerned, whoever they may be, there will be a reluctance to accept whatever they decide.
Amendment, by leave, withdrawn.
Amendments Nos. 24 and 25 not moved.
I move amendment No. 26:
In page 11, between lines 10 and 11, to insert the following new subsection:
"(5) If the Referee concludes that an interception took place but no relevant authorisation was in force at the material time, he shall make a report of the finding to the Taoiseach; and may direct the destruction of any copy of the communications and make a recommendation for the payment of compensation to the applicant.".
This amendment is designed to ensure that if the referee concludes that an interception took place but no relevant authorisation was in force at the time of the interception, he should make a report to the Taoiseach, and he would be entitled to direct that any copy of the communications which were intercepted would be destroyed and he would also be entitled to make recommendations in relation to compensation. I understand that the Bill is quite restrictive in relation to information which can be made regarding tapping. For example, if the tapping was not authorised by the Minister, I understand that all the person who was the subject of that tapping can be informed is that no breach of the Act took place in a certain set of circumstances. I believe that to be undesirable.
The Bill is concerned with authorised interceptions only. Where an interception took place without an authorisation that interception would be unlawful. The role of the complaints referee is to investigate a complaint that a person's letters or telephone calls have been improperly intercepted on foot of a warrant issued by the Minister for Justice; in order words, to find out whether there has been a contravention of the specific provisions of the Act relating to the giving of the authorisation by the Minister for Justice for the interception of messages. It is not a function of the complaints referee to investigate unlawful interception of letters or telephone calls. Such an interception would be an offence under the Postal and Telecommunications Services Act, 1983 and would be a matter for investigation by the Garda in the ordinary way.
It would be wrong for a quasi-judicial person, such as the complaints referee, to trespass into the area of Garda investigation. He would not be equipped to do so. However, there is a world of difference between the investigation of procedures and the investigation of an offence. If a referee in the course of investigating a complaint comes across evidence that an offence has been committed he would be in the same position as any other responsible citizen. He would have to decide for himself whether to tell the person affected by the offence. It can reasonably be assumed — this is what we would expect — that he would always bring the matter to the notice of the Director of Public Prosecutions or the Garda authorities. It is considered there is no need to spell out specifically how a person of the standing of the referee should behave when he comes across evidence of a criminal offence.
It is a common occurrence for the courts, when they suspect in the course of civil proceedings, that an offence has been committed by some party, to direct that the matter be referred to the Director of Public Prosecutions. There is no reason to think that the complaints referee will act in any way differently. Similar considerations apply in relation to the review of the system by the designated judge if he comes across evidence of an offence in the course of his review.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 27 and 28 are related and may be discussed together.
I move amendment No. 27:
In page 11, subsection (6) (a) (iii), line 39, to delete "if he thinks fit,".
If a designated judge agrees that the offence was not serious he should quash the relevant authorisation, direct the destruction of any copy of communication intercepted pursuant to the authorisation and make a recommendation for compensation. Are there circumstances when he would not actually quash the relevant authorisation if a serious offence has not been committed? Why would the referee not direct that the three areas be applied? Bearing in mind the spirit of the refereeing process and the spirit of the legislation itself, where a serious offence was not committed, I cannot see why he would not adopt any of these three options. I believe he should apply the three options in section 6 (3) rather than be in a position to pick and choose which he would apply. I do not see why he wouild not apply the three options rather than one or more at his discretion.
Section 9 (6) gives the referee power, where he concludes that there has been no contravention of sections 2, 6, 7 or 8 (2) of the Act but that the offence that gave rise to the interception was not a serious one, to refer the question whether the offence was a serious offence to the designated judge for his determination. If the judge agrees that the offence was not a serious offence, the referee is obliged to notify the applicant and report his findings to the Taoiseach. He also has the option to quash the authorisation, direct the destruction of any copy of the communications intercepted pursuant to that authorisation and recommended the payment of compensation to the applicant. In other words, the referee would proceed in the same way as he would if he found that there had been a contravention of the relevant provisions.
It could well be the case that the Minister bona fide and reasonably believed that the offence, for which the authorisation was applied for, was a serious offence. The referee and designated judge could form a different opinion. It might all hinge on, for example, an interpretation of “substantial gain” in the definition of serious offence. In such circumstances, where everything else is in order, the referee might consider that the award of compensation was not warranted. In another scenario, the warrant may have expired or be about to expire when the complaint was made and the referee might consider that the question of quashing the authorisation was irrelevant or, the material in the copy of the intercepted communications might simply not be worth destroying.
Therefore, there could be many reasons the referee, in a particular case, might not want to order one or more of the matters referred to in subsection (6) (a) (iii) and the provision allows him that flexibility. Of course, it might happen that there was a blatant abuse of the Act in that the offence was clearly not one that could be reasonably described as serious and, in those circumstances, the referee could recommend the award of compensation, destruction of copies and quashing of the authorisation. It is a matter of discretion.
Finally, I would make two general comments on the power of the referee in this respect. It is the intention of the Bill that the referee and the designated judge perform their functions in an independent manner without interference from any quarter. They can perform these functions with the maximum amount of flexibility. The powers of the referee that we are now discussing reflect that independence and that flexibility. Should the referee interpret his functions in an unreasonable manner the designated judge will be in a position to report on that to the Taoiseach.
Amendment by leave, withdrawn.
Amendment No. 28 not moved.
Section 9 agreed to.
SECTION 10.
I move amendment No. 29:
In page 13, lines 31 to 39, to delete subsection (3).
Basically, our concern is that this subsection might be unconstitutional. If the provisions in section 10 (3) interfere with the judicial process in relation to the specifications regarding who shall not be compellable to give evidence in any proceedings. My understanding is that the courts have the capacity, the right and the entitlement under the Constitution to compel people to give evidence. The reason for the amendment is to delete subsection (3).
We expanded the situations in which people can be compellable as witnesses yesterday in the debate on the Criminal Evidence Bill. In deference to Senator Upton's point I want to explain in some detail the purpose of subsection (3), which is an integral part of section 10. Section 10 is complementary to section 9 in that its purpose is to preserve as far as possible the secrecy of the interception system by requiring the consent of the Director of Public Prosecutions for the prosecution of certain offences relating to the interception of communications and restricting to some extent the giving of evidence in civil proceedings that would reveal the existence of an authorised interception.
The system of authorised interceptions could not function successfully if the existence or non-existence of a warrant, or even an application for one, could be readily ascertained by way of, or in the course of, legal proceedings. It is in the interests of the State that where authorised interception occurs, disclosure of the fact that a warrant has issued is kept to the minimum.
Subsection (1) provides that prosecutions for offences under the Acts mentioned, other than those brought by the Minister for Communications, An Post or Bord Telecom Éireann, may not proceed beyond the remand stage without the consent of the Director of Public Prosecutions. The purpose of this provision is to prevent criminals or subversives from engaging in fishing expeditions in order to find out if their communications are being officially intercepted by instituting a private prosecution for unlawful interception against, say, an employee of An Post or Bord Telecom Éireann. If such a prosecution were allowed to continue without restriction the employee concerned might be forced, in the course of his defence, to reveal that he had been authorised to intercept.
Subsection (2) relates to civil proceedings arising from allegations of unlawful interception of communications. It imposes certain restrictions on pleadings or introduction of evidence that might prematurely reveal the existence or otherwise of an authorisation for interception. The purpose of these restrictions is, like subsection (1), to preserve the secrecy of the interception system by preventing civil proceedings being used as a fishing expedition to discover whether communications are being, or have been, officially intercepted.
I now come to subsection (3) which provides that, apart from criminal proceedings for an offence of interception, no person can be compelled in proceedings to give evidence or information to a court or body or to produce or disclose documents that might tend to show whether an authorisation had been given or an application made for one. This restriction does not apply to the giving of information or production of documents to the designated judge or the complaints referee. The subsection does not prevent a person from voluntarily giving evidence or producing documents to a court. It would, of course, be a matter for the authorities concerned to decide whether it would allow one or their officers to do so. In other words, it provides another safeguard against attempts to use legal proceedings for the purpose of discovering whether, for example, an authorisation had been given, that is, a socalled fishing exhibition.
In relation to Senator Upton's point about constitutionality, we have consulted the Office of the Attorney General who are not omnipotent in those matters but they have advised us that, constitutionally, it is all right.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 to 15 inclusive, agreed to.
Acting Chairman
As it is 1 o'clock, I would appreciate if the Acting Leader would give me some direction.
If we continue until 1.15 p.m. could I get an assurance from the Senators to finish Committee Stage? The Minister has assured us tht he will look at some of the amendments, and come back to us on Report Stage.
I was under the impression that the Leader agreed to finish at 1 o'clock. I do not have a problem continuing but I do not like deadlines. If I am to speak as a forecaster, I expect we could finish by 1.15 p.m.
Acting Chairman
Is that agreed? Agreed.
NEW SECTION.
I move amendment No. 30:
In page 15, before section 16, to insert the following new section:
"16.—(1) The Minister may make regulations to enable this Act to have full effect.
(2) Any such regulations shall be laid before each House of the Oireachtas as soon as may be after they are made, and may be annulled by resolution of either House passed within 21 sitting days.".
This amendment seeks to provide that the Minister may make regulations to enable this legislation to have full effect and it also makes the usual provision that they would be laid before the Houses of the Oireachtas in the standard format.
I understand the point Senator Upton is making but I can reassure him there is no need for this. There is no commencement provision in the Bill nor are there any provisions which would require regulations in order to give effect to the Bill. Once the Bill is signed by the President it will come into effect immediately.
Amendment, by leave, withdrawn.
SECTION 16.
I move amendment No. 31:
In page 15, subsection (1), lines 31 and 32, to delete "Postal Packets and Telecommunications Messages (Regulation)" and substitute "Post and Telecommunications".
This amendment is put down out of a concern for brevity, which is in keeping with the anxieties of Senator Fitzgerald. All we are suggesting is that the Title of the Bill seems unwieldly. We are suggesting that the Title be "Posts and Telecommunications Bill, 1992". That would tidy up the name of the Bill. I ask the Minister to consider the suggestion and if he is unable to accept the Title we proposed, perhaps he would consider an alternative Title which would not be as long winded and obscure as this is.
This Bill regulates the interception of postal packets and telecommunications. Senators will note that the definiton of "communications" in section 1 means either a postal packet — which covers letters, postcards and parcels — and telecommunication messages — which cover telephone calls, telex messages and telegrams. Again, in the long Title to the Bill, specific reference is made to postal packets. If the amendment were to be accepted there would be an inherent possibility that the provisions of the Bill would only apply to post and telecommunications.
That is contrary to the long Title in the Bill I think. Senator Upton was saying that if we change the short Title there would be nothing to stop us changing the long Title. I do not want to restrict the matters to which the Bill relates. We know what we want included in the Bill and we do not want to introduce anything that would in any way delimit or exclude things we want included. We will look at it to see if we can tidy it up without giving rise to that difficulty.
It is a trivial point. I felt the terminology might be improved. That is all that is involved.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Tuesday, 30 June 1992.
Sitting suspended at 1.10 p.m. and resumed at 2 p.m.
