I move: "That the Bill be now read a Second Time."
The Child Trafficking and Pornography Act 1998 has proven to be one of the most effective measures against the sexual exploitation of children in Europe in recent years. It has been widely studied by Members of Parliaments in other jurisdictions as a model law in child protection.
We must be particularly sensitive to issues surrounding child pornography. For that reason, the intricacies of the 1998 Act have come under closer scrutiny than ever before. One of the concerns that exists about the Act is that it might have the effect of constraining — or even rendering criminal — legitimate investigations by committees of the Oireachtas into matters relating to child pornography. It might also have the effect of restricting the level of co-operation between Houses of the Oireachtas, or committees thereof, and persons from whom co-operation is desired.
In this regard, concern arises in the first instance because possession of child pornography is one of the criminal offences established by the Act. This would mean that, on the face of it, anyone who comes into possession of child pornography for the purposes of legitimate inquiry or investigation would themselves be guilty of that same offence. The Oireachtas, in its wisdom, anticipated this problem and avoided it in most circumstances by providing, at section 6(2) of the 1998 Act, that the Act does not apply to persons who possess child pornography: in the exercise of functions under the Censorship of Films Acts, the Censorship of Publications Acts and the Video Recordings Acts; or for the purpose of the prevention, investigation of prosecution of offences under the Act. This means, for example, that members of the Garda Síochána who may be investigating child pornography offences can take possession of child pornography without fear of themselves being guilty of an offence.
As the law now stands, no exemption of this nature extends to Members of the Oireachtas who may come into possession of child pornography as a consequence of carrying out their proper functions. This creates the anomalous situation that, should a House of the Oireachtas, or any committee thereof, desire to gather evidence in respect of any matter relating to child pornography, any Member who came into possession of such pornography might technically be committing a criminal offence. Any civil servant or legal adviser assisting in such an investigation would similarly be committing an offence if they came into possession of child pornography in the course of their legitimate functions.
Similar concerns would arise in regard to the offences of publication or printing of child pornography, which might theoretically expose to prosecution a person who only published or printed the material in question in the course of legitimately carrying out a function of the Oireachtas. Clearly this would not be a tolerable position in which to place any Deputy, Senator or official.
A further difficulty stems from section 5 of the 1998 Act, which makes it an offence to distribute child pornography. At section 5(2), distribution is defined as including the parting of possession with child pornography. This would lead to a situation where a person, who is or might be in possession of child pornography, might refuse to hand over to the Oireachtas either the child pornography itself or computers on which the child pornography is or may be stored, such a person might possess the material innocently. If, for example, he or she owned a computer on to which some third party had downloaded child pornography, such a person might not even be certain that the material in question is child pornography at all within the legal meaning of that phrase. However, regardless of whether he or she possessed the pornography innocently or otherwise, that person might well refuse to co-operate with an investigation or inquiry by the Oireachtas because, in doing so, he or she might run the risk of committing a criminal offence.
The solution we propose for this problem is to insert a new section 13 into the 1998 Act which will ensure that nothing in that Act shall prevent either: the making or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, as amended: or the possession, distribution, printing or publication by either House of the Oireachtas, a committee — within the meaning of that Act — or any person of child pornography for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.
The Bill will permit Members of the Houses of the Oireachtas, together with any appropriate officials and advisers, to carry out their appropriate functions in circumstances where issues relating to child pornography might be involved. It will also clear the way for third parties to hand over relevant evidence without fear of being prosecuted merely for giving the material over and it will prevent such third parties from relying on the provisions of the 1998 Act in order to refuse to co-operate with the Houses of the Oireachtas or any committee thereof.
This is a simple and straightforward measure and I commend it to the House.