Jim O'Callaghan
Dublin Bay South · Fianna Fáil · Ireland
“This relates to section 69 of the Bill as passed by Dáil Éireann, which amends Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule.”
“The first four amendments in this group are minor drafting corrections. They corrected the wording in four places so that the Bill reads consistently. It is changing the word "references" to "a reference". They make no change to the substance or effect of the Bill.”
“The ARP scheme was introduced in July 2022 to recognise the generosity of members of the public who opened their houses, whether in their entirety or through the provision of a room, at their own expense to provide shelter to people displaced by the Ukraine war. The Department of Social Protection administers the scheme on my behalf.”
“I have no doubt it will be challenged, and I have to be able to convince a court, if it is being challenged, that this legislation weighs up conflicting interests and recognises there is a mechanism for somebody who has reformed himself to get off the register.”
“The scheme has been a lifeline for people from Ukraine displaced by the conflict, given high rental market rates and scarcity of rental accommodation.”
“I thank the Leas-Cheann Comhairle in the first instance for presiding over these Stages of the legislation. I am very pleased that this legislation has been enacted. I want to thank a few people very briefly. I thank Deputy McAuliffe for introducing me to Jason Poole. I thank Senator O'Loughlin for her work on this issue in the Seanad.”
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“The real benefit of a miscellaneous provisions Bill is that we know that we can expedite legislative change in a process that would otherwise take a considerable period of time. Deputies are correct when they say that in this Bill there are issues dealing with sexual offences, prisons, community service and other areas in respect of the civil legal system and evidence system. If I was to wait for a broad general Bill, whether it be a Bill on prisons or a Bill on community service, I would be waiting a considerable period of time in order to get that legislative change. The advantage of a miscellaneous provisions Bill is that it is like a train that is on the platform leaving shortly on its legislative journey. If I can get the issues onto the train, I know I will be able to effect legislative change quickly.”
“I hope that by my not referring to them individually, they are not offended by me not dealing with their individual speeches. The first broad criticism or comment was that this is far too general a Bill. It is a miscellaneous provisions Bill but the suggestion is that the variety of matters contained within this Bill is far too broad and that I should not be bringing forward a Bill that contains such a wide breadth of issues. From my perspective as a Minister and indeed from the perspective of trying to achieve legislative change for the purpose of benefiting individuals who need legislative change, a miscellaneous provisions Bill is of huge assistance to me. Others in this House if they become Ministers in the future will become aware that.”
“I thank all 13 Deputies for their contributions this afternoon. I also want to acknowledge the presence in the Gallery of survivors of sexual assault and rape and representatives of survivors and, indeed, representatives of those advocating for a disregard scheme. I hope the debate has been sensitive in terms of what they have had to listen to and I hope it has been in some way illuminating. Generally when responding to contributions from Deputies, I like to go through them individually and deal with each Deputy’s contribution. However, I think it would be preferable if in my reply I dealt with the issues thematically as opposed to dealing with individual Deputies because there are a few issues that were raised by all of them.”
“This will fulfil another programme for Government commitment and, more importantly, address a historical injustice against those affected, one which everyone in this House wants to see corrected. I will conclude on that point. I look forward to hearing the contributions of Deputies today, to which I will reply at the end of the debate.”
“I take this opportunity to thank the committee and its Chair, Deputy Carthy, for its consideration of the Bill during pre-legislative scrutiny, and to assure Members that I considered all the recommendations carefully. I will return to that presently in my closing remarks. Separately, my officials are finalising legislative proposals for a scheme to enable the disregard of historical convictions relating to consensual same-sex activity. This was a matter Deputy Nash raised with me yesterday. I responded that I intend to bring forward Committee Stage amendments to the Bill in order to give effect to that. I will very shortly be seeking Government approval for these proposals with a view to bringing them as amendments to the Bill as it progresses through the Houses.”
“These include the provisions for the use of electronic technology in criminal proceedings, to which I have already referred; provisions for certificate evidence of presumptive drug testing by gardaí in certain proceedings; and a new Garda power under the Public Order Act to require the removal of face coverings in certain prescribed circumstances. I am conscious that there are differing views in respect of some of the proposals, as reflected in the justice committee's pre-legislative scrutiny, PLS, report. I advise the House that my officials and I are considering whether any modifications to the proposals in question are merited to ensure they are fully robust and workable.”
“Finally, section 33 amends the Multi-Unit Developments Act 2011 to facilitate the transfer of functions under the Act from me, the Minister for justice to the Minister for Housing, Local Government and Heritage. This amendment is necessary to negate a legislative absurdity whereby, as a consequence of the necessary transfer of functions order, the Act would otherwise require the Minister for housing to consult with himself or herself when making regulations under the Act. Before I conclude, I would like to inform the House of certain amendments I intend to bring on Committee Stage, which arise from the general scheme of the Bill, some of which I have mentioned already.”
“Section 31 amends the Schedule to the Bail Act 1997 to amend an inaccurate legislative reference and to add to the Schedule the offences of coercive control and forced marriage, which are provided for in the Domestic Violence Act 2018. This will mean that where a bail application is made by a person charged with either of those serious offences, a court may refuse the application if it reasonably considers such refusal necessary to prevent the commission of a serious offence by that person. Section 32 amends the Children Act 2001 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of a child.”
“Part 10 contains section 24, which amends the Criminal Law (Sexual Offences) Act 2017 to create new offences of offering or advertising accommodation in exchange for sexual activity. Part 11 provides a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. As Members will be aware, the current legal basis, the Civil Law (Miscellaneous Provisions) Act 2021, requires renewal every six months. Part 12 contains miscellaneous amendments. Section 30 amends the Criminal Procedure Act 1967 to provide that where a person entering into a bail recognisance is in custody in a Garda station, the member of An Garda Síochána in charge of the station may take the recognisance at the station.”
“Part 8 contains section 21, which amends the Criminal Justice Act 2006 to provide that where a person entering into a suspended sentence recognisance is in custody in a prison, the governor of the prison or a designated prison officer may take the recognisance in the prison. The section also amends the Criminal Justice Act 2006 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of an adult. Part 9 amends the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 to allow Forensic Science Ireland to generate DNA profiles derived from the analysis of coding DNA for identification purposes in cases relating to missing persons, unknown persons, and unknown deceased persons.”
“As I have said, while this is a necessary initial step in reforming the law in this area, I believe further amendments may be merited in order to ensure that there is an optimal balance between the rights of complainants and defendants in this area. Section 14 amends the Criminal Justice Act 1999 to provide that Garda staff, in addition to gardaí, as is already the case, may prepare and sign certificates of evidence relating to custody of exhibits. Part 7 amends various enactments to reassign from the Minister for Foreign Affairs and Trade to me, the Minister for justice, the responsibility for certifying Irish citizenship where it is relevant to certain offences. This will bring the enactments in question into line with the approach taken in more recent legislation.”
“Section 12 also makes various amendments to the Act to allow the director of the probation service to designate staff other than probation officers to perform various functions under the Act. This will increase supervisory capacity in the area of community service while also freeing up more experienced officers to focus on higher-risk and more complex cases. Part 6 relates to criminal evidence. Section 13 amends section 19A of the Criminal Evidence Act 1992 to delete subsection (17) of that section, which provides that complainants may waive their right to non-disclosure of counselling records in applicable proceedings. The effect of this amendment is that a disclosure hearing will be held in all such cases and hence that counselling records will be disclosed only where the judge considers it necessary in the interests of justice.”
“Part 4 amends the Extradition Act 1965 to empower Garda members to provisionally arrest, without a warrant, persons named in Schengen information system alerts from Switzerland and Liechtenstein, countries that do not participate in the European arrest warrant system. Part 5 contains section 12, which amends the Criminal Justice (Community Service) Act 1983 to oblige the courts to consider a community service order in lieu of a prison sentence of up to 24 months’ duration and to give reasons where they consider that a community service order should not be imposed in such cases. It also increases from 240 to 480 the maximum community service hours that a judge may order, and introduces a tiered timeframe for completion of the work depending on the number of hours of community service ordered.”
“The Bill is divided into 33 sections across 12 Parts. Part 1 contains standard provisions setting out the Title, commencement order and a number of definitions of terms within the Bill. Part 2 amends the Firearms Act 1925 and the Prisons Act 2007 to provide a basis for the possession, carriage and use of incapacitant sprays by prison officers in the course of their duties insofar as may be permitted under the prison rules. Part 3 amends the Courts of Justice Act 1936 and the Courts Service Act 1998 to empower the Chief Justice to delegate certain non-judicial functions to other members of the Judiciary. This will allow the Chief Justice to focus on more pressing judicial matters.”
“The Bill will make it an offence to offer a tenancy or a licence for accommodation in exchange for sexual activity in lieu of payment. It will also be an offence to advertise such arrangements. The Bill contains a range of other notable provisions, including to enable the use of more advanced DNA analysis techniques in missing persons cases. It is hoped that this will assist in resolving some outstanding missing persons cases and bring closure to families whose loved ones are missing. On the civil law side, the Bill’s provisions include a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. This will provide greater certainty for the businesses concerned and will support economic and social activity in our towns and cities. I will deal briefly with the Bill on a section-by-section basis.”
“These reforms will mean that proposed disclosure of any sensitive personal material will only occur where this is absolutely necessary, while any such disclosure will be subject to impartial and objective judicial scrutiny. I expect to be in a position in the near future to bring concrete proposals before this House in this regard. Elsewhere, the Bill introduces measures to protect those at risk from the sexually predatory behaviour of accommodation being offered in return for sexual activity, commonly referred to as “sex for rent”. I reiterate that any attempt by accommodation providers to exploit their position and prey on vulnerable individuals through such arrangements is completely unacceptable. Such actions are an abuse of power, which will not be tolerated under any circumstances.”
“Recent Supreme Court jurisprudence has underlined the high level of constitutional protection given to personal records such as counselling notes. In line with this, on Committee Stage, I intend to introduce a presumption of non-disclosure in this regard. The default position will be that counselling notes are not to be disclosed. This would only alter in the interests of justice, for example if an accused's fair trial rights are at risk. This will ensure that disclosure only takes place in the very small number of cases where it is warranted. Furthermore, I will expand the protections of section 19A to encompass other records containing sensitive personal data, such as medical records, child protection records and other such documents.”
“However, I must not mislead people and I must reiterate that the unambiguous advice of the Attorney General's office is that a blanket ban on the disclosure of counselling records is not compatible with the Constitution. I cannot seek to introduce legislation that is described by the Attorney General as unconstitutional. I am also aware that other stakeholders in the domestic violence sector have also secured their own legal advice. That legal advice has confirmed to them that a blanket ban would be unconstitutional. I want to assure the House that today’s legislation is not the end of the matter. I am committed to restricting intrusions into victims’ privacy rights to the maximum extent permissible under the Constitution.”
“Complainants feel pressured to agree to the waiver, with the result that records are routinely released without judicial oversight. The Bill therefore deletes the waiver provision. This means there will be a hearing in all cases, where the complainant is legally represented, and where the defence must make a compelling case that disclosure is required. Therefore, such records will only be released where the judge deems them relevant to the defence. I know that there have been calls for an outright ban on the use of counselling records in criminal trials, including by the Deputy Carthy's Oireachtas joint committee in its pre-legislative scrutiny report. I fully appreciate that such calls are well-intentioned and I fully sympathise with victims and survivors who have deeply felt views in this matter.”
“I was focusing first on the issue of counselling notes. I again acknowledge the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992, which was amended in 2017, was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy. It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing. Over time, it has become clear that section 19A has not operated as intended.”
“It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing. Over time, it has become clear that section 19A has not operated as intended. Complainants feel pressured to agree to the waiver, with the result that records are routinely released without judicial oversight. The Bill therefore deletes the waiver provision.”
“Their use will be further underpinned by mandatory policies and procedures along with bespoke training for prison officers, to further ensure that these devices are used appropriately and in line with all applicable health and safety and human rights considerations. The Bill also contains important measures in relation to victims and potential victims of sexual violence and exploitation. I will focus first on the issue of counselling notes. I want to begin by acknowledging the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992 was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy.”
“As part of the national development plan, €495 million will be invested in building projects to deliver on a plan to build over 1,500 prison spaces by 2031. This will be the largest ever building programme on the prison estate. In the meantime, however, overcrowding is causing a range of issues for our prisons, including an increase in violent incidents. While such violence has always been a risk factor in prisons, the situation now demands a response and it is in this context that the Bill includes provisions to remove the legal barrier to the possession and use of incapacitant sprays by prison officers. The Bill provides that the use of such sprays will be permitted only in accordance with such provision as may be made by me as Minister under the prison rules.”
“There are many offences with penalties of up to 24 months imprisonment where the offender poses no risk to the community and where the public interest may be better served by a person undertaking community service rather than being put in prison. This is particularly so at a time of serious capacity pressures on our prisons. Every case that results in a community service order will help to free up prison spaces for offenders who genuinely warrant imprisonment. While greater use of community sanctions has a role to play in resolving prison overcrowding, I of course accept that it cannot be the only solution. The very large and sustained increases in the Irish population warrant a proportionate increase in prison capacity and the Government is taking the necessary action.”
“These measures will allow the courts to bring a more flexible and efficient approach to such proceedings and save further time for gardaí, prison officers and other court users. The Bill also provides for reforms in respect of prisons and penal policy. It supports the programme for Government commitment to extend the use of community sanctions by obliging the courts to consider a community service order in lieu of a prison sentence of up to 24 months duration - the current such threshold being 12 months - and doubling from 240 to 480 hours the number of hours of community service that may be prescribed in such an order. The court will also be required to give reasons where it considers that a community service order should not be made in such a case.”
“The Bill also enables garda staff to certify custody of exhibits used as evidence in criminal proceedings. This will aid in freeing up gardaí for core policing duties, in line with long-standing policies on the civilianisation of non-core Garda functions. Additionally, the Bill lowers the minimum rank of Garda that may apply to court for antisocial behaviour orders in respects of children and adults. While these provisions may in themselves appear modest, cumulatively they have the potential to make an important difference by saving on the time of gardaí and prison officers in particular. I should add that I plan to introduce, by way of amendment to the Bill, further procedural reforms on Committee Stage, including the expanded use of remote hearings in criminal proceedings and the electronic transmission of documents in such proceedings.”
“The Bill responds to a range of challenges for the criminal justice system in particular, including severe prison overcrowding and an increase in violent incidents; the exploitative practice of seeking sexual activity in lieu of rent; and the need to restrict the disclosure of counselling records in sexual offence trials. I will begin with the various procedural reforms for the criminal justice system that this Bill introduces. The Bill enables bail bonds and suspended sentence bonds to be taken by gardaí and prison officers, respectively, where a person participates in the hearing from custody. This will better facilitate videolink participation in court hearings by persons in custody and free up the time of front-line gardai and prison officers by reducing the need to convey persons in custody to and from the court.”
“Tairgim: "Go léifear an Bille an Dara hUair anois." I move: "That the Bill be now read a Second Time." Tá áthas orm an Bille a chur i láthair sa Teach. I am pleased to introduce Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026. The Bill introduces important reforms to our criminal law and civil law across a broad range of areas and delivers on several programme for Government commitments. While miscellaneous provisions Bills often lack the unifying theme of other Bills, three primary themes emerge from the provisions of this Bill: procedural reforms to support a more responsive and efficient justice system; addressing issues relating to penal policy and prisons; and reforming aspects of the law in relation to sexual offences and sexually exploitative behaviours.”
“A solicitor can say they got an identification order from the Supreme Court. They could say, "This is the document that was produced from X on foot of the identification order". That is sufficient proof of the identification order.”
“The court will always have control of its jurisdiction. It can apply whatever conditions it wishes. All we can do is provide the statutory architecture for the court to provide these identification orders. I do not believe it is necessary, or would be appropriate, for us to allow for an identification order to be made for purposes other than the defamation action.”
“I note what Senator McDowell says, but in the context of the Defamation Act and defamation Bill, the only reason a court will grant an identification order is for the purpose of facilitating a defamation action. I cannot provide a mechanism outside of the defamation Bill for somebody to find out this information out of curiosity. If I am going to put it in the defamation Bill, it has to be for the context and in the context of the individual bringing the application because they want to initiate proceedings against the defamer. Amendment No. 21 refers to being able to go back to the court in respect of the identification order. In subsection (4)(b), when the court is making the order, it can make it subject to such conditions as it considers appropriate, which may include the issues I set out in rules subparagraphs (1) and (2).”
“I thank Senators McDowell and Craughwell for their amendment. In respect of the point raised by Senator McDowell, if I can refer to the example I referred to in the previous amendment about discovery, sometimes individuals get discovery of documents in proceedings because they are necessary and relevant to the proceedings. The individual can only use those discovered documents, whether they are from another party or a non-party, for the purpose of the litigation. There is an implicit undertaking given by an individual who is granted discovery of documentation that it will only be used for the purpose of the litigation. It cannot be used for a collateral purpose.”
“So it is not a mandatory requirement. It is a discretionary order. Senator McDowell refers to a well known Internet service provider - a social media company. Again, when I am dealing with creating new law and putting forward new law for the Oireachtas to make, I have to look at it objectively and not try to identify any entity. If a non-party is playing a role in inter partes litigation, in general, at some stage in the proceedings, that non-party is recompensed for facilitating the resolution of the dispute by providing information or documents so I cannot accept the amendment.”
“Then, for the purpose of resolving that dispute, there is a requirement to get a discovery from, say, another third entity who is not involved in the dispute at all, and that third entity is sometimes required to make a disclosure of documents for the purpose of facilitating this dispute. It is never the case that that third non-party is required to pay the costs. It is always the case that the non-party will have their costs paid. I think Senator McDowell's concerns are met by the fact that we all know that costs are always going to be at the discretion of the court, no matter what the statutory provision, and the statutory provision that is contained here, and which he seeks to amend, simply says that the court may "order that an applicant pay any or all of the costs of the relevant intermediary service provider".”
“I thank Senator McDowell for the amendment and his contribution. We had an extensive discussion about this on Committee Stage. In terms of costs following the event, what the means is that generally the winner of a court dispute is granted their costs on a party and party basis. However, that is a difficult rule to apply in circumstances where there is an application which is not an inter partes application. In fact, it is a non-party application. I used the example previously of where there could be two parties in a dispute - an individual against another individual.”
“I thank the Senator for his amendment, which we also discussed on Committee Stage. I want to provide a statutory mechanism for people to apply in the Circuit Court. I think the Circuit Court is cheaper and it is an appropriate mechanism for the purpose of granting an identification order. I have to say to the Senator that nothing that I do in this statute is going to interfere with the jurisdiction of the High Court. The existing powers of the High Court will not be affected by this section in the Bill. For that reason, I am not accepting the amendment.”
“In fairness to our broadcasters, in general they go out of their way to that someone is not there to defend themselves against a charge. This is a difficult area for broadcasters. I have put it in for their protection. I cannot just be thinking about the individual who may have been defamed. I also have to think about fairness for defendants who can end up being sued as well. Unfortunately, I cannot accept the amendments. I am have brought forward an amendment in this area in light of what was said by Senators on Committee Stage. I refer to amendment No. 16, which will be moved presently.”
“When we look at subsection (2), I think that what the Senator is seeking to ensure is considered is already dealt with by way of subsection (2)(e), which states that the court should consider "the overall management in practice of the live programme concerned, and of its participants, by the broadcaster and in particular by the presenter of the live programme". These are very much the issues the Senator has identified, namely whether the presenter challenged the person concerned, has identified that the person about whom the statement was made would completely dispute it and said that that person will have an opportunity to defend themselves. We see this happen frequently on broadcasts that occur when somebody is not represented in the studio.”
“I have to be fair, not just to the interests of the person who may be defamed but also to the publisher, in this instance the broadcast publisher, who, in fairness, does not have a complete responsibility or control over an individual during a live broadcast. It is certainly the case that if somebody on a live broadcast says something defamatory about another person, then that individual is liable in the context of defamation. What we are trying to do here is to ensure that the broadcaster will have a protection. The Senator's amendments are too specific and restrictive and would mean it would be very difficult for the defence ever to succeed.”
“The first and foremost requirement in respect of this defence being effective is that in advance of and during a broadcast, the broadcaster must have taken reasonable and prudent precautions to prevent the publication by a relevant person of a defamatory statement during the programme. This is something that is going to be looked at in advance of and during the broadcast. Subsection (2) sets out a variety of factors that the court can consider for the purposes of determining whether or not these prudent and reasonable precautions were taken, and they are very detailed, fair and balanced.”
“The purpose of the live broadcast defence, which is dealt with in section 13, is to try to protect live broadcasting. Everyone involved in politics will know that there is a great advantage to the public at large in there being live broadcasting. It is vital during elections and it is vital during other issues of great public concern. I want to try to ensure that we have a provision within the legislation that facilitates the continuation of live broadcasting. The section that has been drafted and that was approved on Committee Stage is sufficient to deal with the concerns that Senator Mullen outlined.”
“However, the important part of the provision is that the defence will only apply where there is an accurate and impartial account of a dispute. Unfortunately, I cannot accept the amendment. It is difficult to predict the type of scenario that will arise when this provision will be invoked. I could, but will not, give domestic examples of public disputes that could be reported on, but they also exist.”
“In that circumstance, one would have thought that a publisher should be entitled to impartially and accurately publish the details of that the, because it is in the public domain, without having to find out the nature of the allegation President Trump made about Mr. Musk, correct or not, or contact Mr. Musk to get his side of the story before publishing details of the dispute. What is in the public interest is the dispute itself. There are certain times when it is in the public interest to publish details of a dispute between public figures in the newspapers or in broadcast media without a newspaper or a broadcaster having to verify whether the details are true or not. This was recommended in the review of the 2009 Act. I think I also dealt with that on Committee Stage.”
“Musk, whom I use as an example because they are not listening and everyone will feel comfortable with me doing so, that was a serious dispute between two individuals. Obviously, that dispute was in the public interest, I would have thought, even though it was an international issue. I am using it as an example. Obviously, there are all sorts of jurisdictional issues as to whether the Irish courts would have jurisdiction, but that is an example of a dispute between two public figures where it is in the public interest for it to be reported upon. Very serious allegations were made by one of them that the other was taking serious drugs.”
“I will start by stating that in order for this section 26 defence to succeed, there is a requirement that the statement in respect of which an action is brought must relate to a matter of public interest. There is also a requirement that the defendant reasonably believes that publishing the statement is in the public interest and that this is done in good faith. These are all necessary requirements before we even get to consideration of subsection (3), which the Senators' amendment seeks to remove. Senator Mullen asked me to set out an example of how subsection (3) will apply. I gave the example earlier. I do not want to use too many domestic examples, but in terms of the dispute between President Trump and Mr.”
“That can be understood because the individual is saying their reputation is being damaged in the public domain, so of course they should identify themselves. In respect of other persons whose names may come up, one of the consequences of justice is that people are required to be identified unless there are children involved. Obviously, the criminal sphere is different, as the Senator will know. We saw recently some horrific cases on which reporting restrictions were put. We also need to take into account that the High Court has full original jurisdiction. It can decide how its procedures should operate subject, of course, to the constitutional requirement that justice should be administered in public.”
“If I go back and give the publisher an answer stating that the story is completely false - I do not have to prove it, but coherently state that to the publisher - then it will be extremely careful about publishing it. The publisher will have difficulty invoking section 26 in that context. With regard to what Senator Craughwell said about people being named, the media can take chances. Sometimes, they are too cautious and nervous. Justice is administered in public. People should be named. There are some occasions when names are not provided, however. There are statutory provisions that say that if the media is going to reveal someone’s medical condition, they will not be named. Obviously, people are not named in family law proceedings. If someone takes a defamation action, one of the consequences of it is that the person has to be named.”
“To use my earlier example, if a reputable broadcaster or publication informs me that it has serious allegations against me and sets them out before me, if they are false, I will rush to say that they are completely wrong. If it goes ahead and publishes it, then it will certainly not be able to get much benefit out of section 26 if I have put forward a coherent response as to why it should not publish it. The advantage to the publisher in court in invoking section 26 is that it can say it went to the person and asked them for an answer but they did not give an answer and never got back to the publisher at all, or that they gave an answer that was demonstrably false.”
“It is difficult, as the Senator will appreciate, for the Legislature to set out what is in the public interest. We cannot formulate an endless list of matters that are in the public interest. We have to defer. We can all state in here what is in the public interest but when it gets to court and the interpretation of a statute, it is for the court to assess what is in the public interest. However, I have to say that the assessment of the court will be very much the same as ours. When it comes to the point about a false statement being made and the right to silence, I may have a different view to the Senators who have spoken in this regard.”
“In respect of Senator Mullen’s question about the public interest, the Constitution delegates the administration of justice to the courts. As the Senator knows, they are not remote entities. The courts have to assess what is in the public interest quite frequently in terms of rulings that come before them and judgments they have to give. They have to do it in the context of privacy and defamation as well. In the case of Nolan v . Sunday Newspapers Limited, it was suggested by the defendant that it was in the public interest to reveal something about a retired former intercounty GAA player, who had not played in about ten years, that was actually defamatory about him and a breach of privacy. The courts did not accept that because it was not a public interest issue.”