Senators will be aware of the background to this Bill. It is a short Bill of two operative sections and is concerned with mechanisms to ensure the better conduct of tribunals. While these mechanisms will be of general application, the Bill has been prompted by concerns which became apparent following the resignation in June 2003 of Mr. Justice Flood as chairperson and as a member of the Tribunal to Inquire into Certain Planning Matters and Payments, also known as the Flood tribunal.
At issue is the determination of applications by parties for costs arising out of the findings of a tribunal. More specifically, it deals with the determination of costs concerned with certain modules dealt with in the second interim report of the Flood tribunal, published in September 2002. The modules were dealt with at a time when Mr. Justice Flood was the sole member of the tribunal and that report was accordingly prepared by him. The determination of costs had not been made at the time of Mr. Justice Flood's resignation. The primary purpose of this Bill is to provide certainty to the current chairperson of the tribunal, Judge Mahon, in dealing with matters relating to the award of costs.
To avoid any ambiguity, and because of an abundance of caution, it is proposed to insert a new subsection in section 6 of the Tribunals of Inquiry Act 1979, to the effect that the sole member of a tribunal, or the chairperson if there is more than one member, may make an order for any costs that were incurred before his or her appointment which have not already been determined. In exercising this power, the sole member or chairperson shall have regard to any report of the tribunal dealing with its proceedings in the period before his or her appointment. These new provisions will apply to tribunals appointed and costs incurred before or after the passing of this Bill.
It is also proposed to avail of this opportunity to provide for an express power for a tribunal, of its own volition, to seek the direction of the High Court on the performance of the functions of the tribunal, including in the matter of costs. This provision mirrors similar provisions for inspectors appointed under the Companies Act 1990. A somewhat similar provision is also contained in section 25 of the Commission to Inquire into Child Abuse Act 2000. It is also proposed in the Bill to provide an express statutory power, vested in the chairperson, to direct other members of the tribunal to sit as separate divisions and to determine the conditions that will apply, including the preparation of reports.
Section 1 of the Bill is a standard interpretation provision. Section 2 deals with the amendment of section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, as amended by the similarly titled 1997 Act, by the insertion of a new subsection (1A) after subsection (1), providing that the sole member, or chairperson where there is more than one member, of a tribunal may make an order under subsection (1) for any costs that were incurred before his or her appointment and have not already been determined in accordance with that subsection. The sole member or chairperson shall, for that purpose, have regard to any report of the tribunal relating to its proceedings in the period before his or her appointment.
Subsection (2) provides that the amendment effected by subsection (1) of this section shall apply to tribunals appointed and costs incurred before or after the passing of the Bill.
Section 3 deals with the amendment of the 1997 Act. The section is in two parts and amends section 4 of the 1997 Act by inserting two additional sections, 4A and 4B. New section 4A concerns directions and orders of the High Court. Thus, subsection 4A(1) provides for the tribunal, or the chairperson if the tribunal has more than one member, whenever they consider it appropriate to do so, to apply to the High Court for directions relating to the performance of the functions of the tribunal or the chairperson, under the Tribunals of Inquiry (Evidence) Acts 1921 to 2003, including their functions relating to costs.
Subsection 4A(2) provides that the High Court may give such directions and make such orders as appropriate. Subsections 4A(3)(a) to (c) provide that the High Court may hear an application otherwise than in public if satisfied that it is appropriate to do so because of the subject matter in relation to which the direction is sought, the risk of prejudice to criminal proceedings or any other matter relevant to the nature of the evidence to be given at the hearing of the application. Subsection 4A(4) provides for the High Court to give such priority as it reasonably can to the disposal of the proceedings in the court under this Act. Subsection 4A(5) provides for the Superior Court Rules Committee to make rules to facilitate giving effect to subsection (4).
New section 4B concerns divisions of tribunals. Thus, subsection 4B(1) provides that a tribunal consisting of more than one member may, whenever the chairperson so determines, act in divisions each of which consists of such members of the tribunal as the chairperson may determine. Subsection 4B(2) provides that the chairperson may designate one member of a division to be chairperson, determine the functions to be performed by the division, determine the matters to be dealt with by the division and require the division to prepare a report.
Subsection 4B(3) provides that a division of a tribunal shall provide any report as required to the chairperson. Such report is considered to have been made by the tribunal. Subsection 4B(4) provides that a division of a tribunal and the chairperson of the division have all of the powers of the tribunal and the chairperson of the tribunal in the performance of their functions. Subsection 4B(5) provides for a situation where the chairperson of a division is for any reason unable to continue to act as such.
Section 4 is a standard provision dealing with the Short Title and collective citation. The provisions of the Bill do not of themselves have financial implications for the Exchequer. However – I wish to be careful what I say here – should it be the case that ultimately the determination of costs results in the non-award to persons who have appeared at a tribunal, then, obviously, there could be a considerable saving in that regard. However, I emphasise that the issue of determination of costs is a matter for the chairperson of a tribunal. The immediate effect of the enactment of the Bill will be to dispel any possible legal uncertainty as to the authority of Judge Mahon, as the current chairperson of the Tribunal to Inquire into certain Planning Matters and Payments, to make a determination of costs. There is, it would be fair to say, fairly widespread dissatisfaction on all sides, including the Government, with regard to the costs of tribunals. These have become quite significant. I am sure many Senators wish the Government was bringing forward a more comprehensive Bill on legal costs of tribunals. The Minister for Justice, Equality and Law Reform agrees that changes are needed in the organisation and administration of tribunals in an effort to reduce the levels of legal costs associated with tribunals. To that end, I mention two initiatives currently underway.
Senators will be aware that the Government published on 2 July 2003 the Commissions of Investigation Bill, which it is hoped can provide for an alternative, more timely and cost-effective mechanism for investigations into matters giving rise to significant public concern. This would not be a single or permanent body but it is planned that commissions may be established as required and that more than one might sit at any one time. Commissions of investigation will not replace or alter in any way the work of the tribunals of inquiry currently under way or any other inquiry or investigation mechanism already available. It is envisaged that they will, instead, provide a new and alternative mechanism. In certain instances, this will be a precursor to a tribunal of inquiry. Commissions will be required to establish the factual position. A commission may be followed by a tribunal where it is unable to establish clear facts. In those situations, the evidence collected by a commission will be available to the tribunal, thereby reducing the time and cost associated with tribunals. In reducing the time and cost involved, while ensuring fair procedures and respect for confidentiality, the proposed commissions of investigation will add significantly to the mechanisms and instruments available for public investigations.
I also direct the attention of Senators to the work of the Law Reform Commission, which has been examining all issues concerning tribunals. The commission issued a lengthy consultation paper in March 2003, which traced the history of public inquiries in general, dealt with the legal and constitutional issues which have arisen, the type of proceedings involved and the issue of costs. The consultation report made a number of recommendations on the totality of issues involved with tribunals. It is expected that the final report of the commission should be available in mid-2004 and it will surely provide an important input into how public inquiries might be conducted in the future.
However, let me reiterate that the Bill we are considering today, though critical, is one primarily concerned with the issue of determination of costs, with particular reference to an existing tribunal. In that regard, Judge Mahon has indicated to the Government that he is anxious to deal with the issue of determination of costs arising from those modules dealt with in the second interim report of the Tribunal to Inquire into Certain Planning Matters and Payments.
The timescale for consideration of this Bill in both Houses is regrettably short as it is the intention of the Government that the Bill be enacted before the Christmas recess
Accordingly, I commend the Bill to the Seanad.