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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“It would be problematic to force Tusla to set out the reasons. I very much appreciate the amendments that were put down. I know the desire of all three Senators who have spoken to this is to make this legislation as effective as possible. I commend them on their attempts to do so but once we go down the route of bringing in the family as the driving force, as the Senators will know themselves, problems are going to arise. Why not get the legislation enacted and up and running as it is? We can then see how Tusla performs in its functions. Fortunately, applications under this legislation will be few and far between, I hope. If there are many of them, it would be a sign that the horrific crime to which Valerie French was subjected has happened again. Fortunately, there will be very few of them.”
“If you are the brother, sister or parent of a deceased guardian, you can, of course, write to Tusla and say you would like it to invoke the provisions in respect of it. Where it does get difficult is in subsection (2), which is what Senator Stephenson spoke to, along with Senator McCormack, that there would be a requirement on Tusla to provide reasons. There could be very sensitive reasons, based on personal information related to the child or in respect of others, as to why the application is not being made. I would be concerned about that information just being able to be given out to individuals simply because they write - and it could be someone who does not have any connection with the child other than being a relative - and ask Tusla for the reasons it brought an application.”
“As I mentioned, next of kin could have no relationship with the deceased or their child and may, in some circumstances, be difficult to identify or locate. Again, I ask Senators to look at subsection 12I. I think that is a very appropriate one and it will allow the court to determine who should be joined as a notice party. Amendment No. 19 is in the name of Senator McCormack and others. Senator Stephenson also spoke to it. The first part is fairly straightforward. It does not need to be made a statutory provision. It simply says where a guardian or relative of the child is of the opinion that an application ought to be made and it is in the best interests of the child, they can request Tusla to do so. There is nothing stopping them; they do not need a law.”
“In terms of hearing the voice of the child, section 12F applies Part VA of the Childcare Act 1991 to proceedings. This provides for the appointment of a guardian ad litem whose role is to ascertain the views and wishes of the child and to convey them to the court. Section 12I requires that each guardian, including the guardian ad litem, be given notice and allows a relative, broadly defined, to seek to be joined as a notice party. I will now deal with amendments Nos. 16 and 18. Senator Stephenson referred to amendment No. 19, which I will come to presently. I do not accept these amendments, which both aim to accomplish substantially the same result, namely, the notification or joining as notice parties of the next of kin.”
“I appreciate the intention behind them, which is that the court should hear from the child's family and from others close to the child before it makes an order. I have set out a procedure there which I think facilitates that. The amendment would invite argument about whether the court had consulted widely enough and it could delay the making of an order in the case where the safety or welfare of the child requires that the order be made without delay. We want the court to be able to look at the totality of the circumstances and it is better, in my view, that it retains the discretion to do so, rather than being directed by statute as to whose views it must seek in every case. Throughout the legislation, in the way it has been drafted, the best interests of the child are the primary purpose.”
“It could lead to competing applications about the same child. This is a very significant point because then we would have competing views presented in terms of the application by different members of the family. A relative who has concerns is not without a voice under the Bill. I refer to section 12I (2), which states that a family member can apply to be a notice party. Amendment No. 17 serves only as a function if amendment No. 7 is accepted. I do not propose to accept amendment No. 7. Amendments Nos. 3, 4 and 5 are two alternative versions of the same new subsection in section 12C. At most, one of them could be accepted. I note what is said but I do not intend to accept these amendments.”
“We need to recognise that this could put a lot of pressure on the family as well, a family that has been through a terrible and appalling trauma when we consider that one parent of the remaining children has been convicted of killing the other parent of the remaining children. We need to ensure that this is done in a sensitive way that does not simply generate a row in the court. Amendment No. 7 would allow any relative to bring proceedings to restrict or remove a guardian, whether or not Tusla has done so. That is not a public law response: it is private litigation within the family. Such an application would not rest on any assessment by Tusla of the welfare of the child. It could be contested between family members. It could draw the surviving victim guardian back into proceedings brought by relatives.”
“I do not want the family to be the driving force in these applications because that is very much a private law response. We have to recognise that the family is not going to have, in many instances, a consistent view in respect of it. On amendment No. 7, I appreciate the best of intentions of Senator Keogan to ensure that the relative who is concerned for the welfare of a child is able to act. What the Bill seeks to do is put in place a public law determination of what is in the best interests of the child. That is the paramount consideration. I would be concerned that if we were going to delegate responsibility to certain other family members or give them a say, that would make it a private law matter to be determined by the family.”
“I do not want a situation where a child is in need of another guardian being appointed, or a care order to be made, and the court cannot do so because an administrative step of notifying a particular relative has not been taken. That is one of the consequences - I think of Senator McCormack's amendment - if there is the requirement to notify all next to kin, which is not defined, or relatives, which I know Senator Keogan has defined. If there is a requirement that the relatives must be notified, then the case cannot be heard until they are all notified and there are affidavits of service showing that the aunts, the uncles and the grandparents have been served and proof that they have been served, and then there is the issue of trying to determine their view in respect of it. I am being frank.”
“1 from Senator Keogan. It would require An Garda Síochána, the General Register Office and any other public body to provide information notwithstanding any enactment that prevents its disclosure. That could raise a data protection issue. Section 12H of the Bill already allows the bodies named in it to share information but only where it is in accordance with law and is necessary and proportionate, and it provides for regulations and for measures to safeguard the rights of the people whose information is shared. The last subsection of Senator Keogan's amendment has the potential to tie the hands of the court in making appropriate provision for the child.”
“To get into the reality of this, this will include the parents of the deceased and indeed the parents of the convicted person, or the siblings of the deceased and-or the siblings of the convicted person. The proceedings are about the protection of the children. That is my motivation and that is what motivated David French in seeking to change this law. It is all about what is in the best interests of the children. What I do not want to see happening is that an application before the District Court turns into a row between different sections of the family. That can happen and it is something that I have to ensure does not happen. I will deal with amendment No. 1. As I mentioned, the Bill deals with how relatives can be made notice parties. I referred to section 12I. Another concern I have is with subsection (3) in amendment No.”
“The scenario that will arise is that if and when Tusla brings the application a relative can apply to be a notice party. I think that is appropriate because the District Court will decide whether it is appropriate for a notice party or relative to be made a notice party to the proceedings. Obviously, if a person is a notice party he or she will get to be heard in the proceedings and will play a role in it. We also need to recognise the reality of the fact that families do not always come with one harmonious and homogeneous position. Let us consider the proposed definition of "relative" that is being put forward by Senator Keogan in her first amendment. Subsection (2) of the Senator's first amendment includes a grandparent of the child or an aunt or uncle of the child.”
“It is important to note, however, that the legislation I am bringing before the House takes account of the very important role that families play in the lives of children such as the ones caught up in the type of scenario we are describing. Section 12I (1) of the Bill provides for notice parties to proceedings under this part. It states that when an application such as this is being made by Tusla the first persons it must notify are any guardians. Obviously that will include the convicted guardian but also any other guardians in existence should be notified as well. Section 12I (2) provides that a relative of the child concerned may seek leave to be joined as a notice party to proceedings under this part. It defines "relative" as meaning a "grandparent, brother, sister, uncle or aunt ..." and it sets it out in detail there.”
“Of course, one of the limitations of the legislation that we are introducing is that it is only triggered once there has been a conviction. Once there has been a conviction the time period starts to run. As I mentioned on the last occasion, however, there is the terrible day of the killing and the issue of what happens to the children. We know in most instances that it is the surviving family members, a brother or sister of the deceased guardian or parent, are the ones who actually just on a practical basis take over minding the very young children. If they are not available, obviously Tusla has to come and get involved and bring an application under the Child Care Act for the immediate care of the child.”
“We are dealing with circumstances where one guardian parent has been convicted of the murder or manslaughter of another guardian parent. In those circumstances I think that requires a public law response. I do not think that it is a private family issue that the family should be forced to litigate to bring the issues before the court. It is for that reason the legislation is very much public law legislation. It gives responsibility to the Child and Family Agency to bring this application within six months where there has been a conviction for murder or manslaughter and the agency believes that such an application is in the best interests of the child. I am fully aware, and we are all fully aware, that when a tragic event happens, a murderous event like this, the family around the child are enormously supportive and important.”
“I welcome David French and his family to the Gallery. Like colleagues, I commend them on their campaigning in this area. I also thank Senator Keogan for the amendments she has put down. It is obvious that a lot of work went into them and I commend her on that. I similarly commend Senator McCormack and Sinn Féin on their amendments. I also thank Senator Stephenson for her contribution. I recognise that all of the amendments being put down are motivated by what the Senators believe is in the best interests of the child concerned, taking into account the family. I will deal with the amendments individually. The system that operates at present is what is referred to as a public law response to a terrible event that happens.”
“Regrettably we have seen one or two of them which are before the courts at present in Ireland, which are categorised or accused of being terrorist acts. It is important that our legislation is robust and well set up in order to respond to such a threat to the State and its citizens. I thank Senators for their contributions and amendments. I welcome the fact that this legislation has gone through both Houses of the Oireachtas. It will now go to the President for her consideration and will be promulgated if the President considers that it should be so signed. I thank everyone in the House for their co-operation.”
“I would like to thank Senators for their engagement on this legislation. We have had terrorist offences legislation in place since 2005. This is updating it to take into account the serious terrorist threat that the State can face. Fortunately it is not as significant as previously, but we need to ensure that our laws are up to date and vigilant. The primary purpose of this legislation is to transpose the new directive in respect of terrorist activities. Regrettably, we have seen some appalling terrorist activities in Europe over the past ten or 15 years, with the Bataclan being a prime example of a horrific terrorist attack. We regrettably continue to see it. It is extremely important in this country that we are prepared for any such attacks.”
“Whereby somebody putting graffiti on a wall, which is technically criminal damage, I do not envisage that person being prosecuted because the sign on the wall says that they want Israel to move out of the occupied territories. That is not going to happen. We need to live in the real world when it comes to the interpretation of this legislation. We have had 20 years of it being interpreted and applied in a very limiting way. There is no reason to think that this interpretation is going to change in the future, and particularly since, to use the Senator's example, criminal damage has been a scheduled offence in the legislation for many years.”
“These are, first, seriously intimidating a population; second, unduly compelling a government or an international organisation to perform or abstain from performing and act, and it is not credible to suggest that graffiti on a wall suggesting that Israel should get out of the occupied territory is unduly compelling a government to perform an act; and, third, seriously destabilising or destroying the fundamental political constitution, economic or social structures of a state or an international organisation. We can see that the threshold in order for a criminal offence to be elevated into terrorist activity is particularly high, taking into account the definition set out there. I do not envisage any of the issues the Senator referred to.”
“Obviously, in order for anything to reach the threshold of terrorist activity, it has to come within the definition of what is terrorist activity. That is set out in section 2 of the Bill, which talks about if it is committed. Let us look at Part 1 of Schedule 2. The Senator highlighted criminal damage. We can see that the rest of the Schedule is focusing on very serious criminal offences and as regards criminal damage, which is what we are talking about, it is clearly considering issues such as arson and where property is seriously damaged. This is not going to happen on foot of minor offences or in terms of non-indictable offences. Even if it did, there are the other three requirements, one of which must be met.”
“In terms of the new changes that are coming in, which are very similar, I believe they also will be interpreted and applied in a very careful and limited manner. This is not an attempt by the State to generate a whole series of new offences covered by what people are stating publicly or expressing their opinions. As I said to the Senator previously, all of them are protected by the Constitution, the convention and the charter. I cannot accept the amendments.”
“It should not be the case that people are entitled to engage in terrorist activity if what they are doing is in opposition to a state that is intimidating a population, is in opposition or opposed to a state that is not complying with international law or the offences are against a country involved in war crimes. We cannot have a situation where people are permitted to engage in terrorist activities because they are against an entity that may have engaged in wrongdoing itself. That is not permissible under our legal system. I cannot accept the Senator's amendments. I also believe they are unnecessary. If we look at how the legislation has been operated to date in terms of the prosecutions, clearly it has been interpreted and applied in a very cautious and limited fashion.”
“I will use the example the Senator is concerned about in terms of, say, states that are a breach of international law. Two obvious states that come to mind are Israel and Russia. If somebody decides in Ireland to burn down a property because it is owned by the Russian Government or the Israeli Government, that is still a criminal offence. People cannot do that. They cannot engage in violence for the purpose of advancing their own political purposes. We have learned that in Ireland for many years now. We do not want to go back to a situation where people think it is permissible or acceptable to use violence or engage in terrorist activity for the purpose of achieving their own objective. If we look at what the Senator is setting out in amendments Nos. 22, 23 and 24, all of them are unnecessary.”
“I see no basis for the removal of the words "of itself" other than that the Senator wants other factors to be considered as not constituting terrorist activity as well. The Senator also mentioned the issue of criminal damage. Obviously, criminal damage under section 2 of the Criminal Damage Act 1991 covers a range of offences. They can be extremely serious offences, particularly in relation to arson and where there is an intent to endanger life or recklessness as to such endangerment. The Senator used the example of the suffragettes. Even if the suffragettes were involved today or people in a similar position were advocating an equally noble cause, that does not give them the entitlement, nor does it give them a defence, when it comes to criminal behaviour.”
“It is instructive to us to look at how the 2005 legislation has operated since it was commenced 20 years ago. Many of the issues the Senator highlighted are contained within the 2005 legislation and we have not seen the types of prosecutions the Senator is concerned about, and that neither she nor I wants to see. The reason for her removing the words "of itself" must mean that she wants other factors to be permissible in terms of the actions of the person concerned. The whole purpose of section 6(5) is to set out that where people are engaged in "protest, advocacy or dissent, or in any strike, lockout or other industrial action", that type of behaviour is excluded from this legislation. That is the whole purpose of saying it. The reason we limit it to that is by the use of the words "of itself".”
“I believe that is a better approach than the problematic statement that it would be a defence for anybody planning a terrorist act to show that the state against which he or she plotted was in breach of international law. We would not accept that a person accused of planning to set off a bomb in a public place in such a state would have a full defence in law because he or she persuaded the court that that state was in breach of international law. The Attorney General's intervention represents the only plausible solution to this dilemma and, as such, I cannot accept these amendments.”
“This provision was introduced to address precisely the issue the Senator’s amendments seek to tackle. It affords the only practical way to give effect and be faithful to the directive while at the same time avoiding the possibility that persons acting legitimately against a repressive state would be prosecuted in the courts in a manner repugnant to our values, which is to vest in the Attorney General the same function he or she exercised under the Official Secrets Act. The mechanism chosen in the principal Act, after months of debate in government and the Houses, was to give the Attorney General’s approval the status of a condition precedent to a prosecution going on under this legislation.”
“Also, if we grant that there are legitimate concerns here that a person engaged in activity against an oppressive or tyrannical regime could be convicted under this legislation, which, as I say, I doubt is possible - in fact, I believe it is not possible - the provisions in section 6(6) of the principal Act address such concerns while allowing for the proper transposition of the directive. This provision, as I mentioned earlier, provides that the consent of the Attorney General is required in cases where a person: ...is charged with an offence ... in or outside the State with the intention of ... unduly compelling the government of a state ... to perform or abstain from performing an act, or ... seriously destabilising or destroying the ... political, constitutional, economic or social structures of such a state.”
“The “for the avoidance of doubt” provision within a statutory regime is inappropriate and confusing. Criticism of or opposition to a state for whatever reason is not evidence of intent to commit a terrorist act under this or any domestic legislation. People can continue to criticise or oppose a state and that is not going to be regarded as intention to commit a terrorist act. As such, these amendments are redundant and potentially not in compliance with the terrorist directive.”
“The Senator’s further amendments seek to introduce new subsections which would variously provide that criticism of a state that is breaching international law or opposition to the occupation by a state of a territory without legal basis cannot be construed as grounds for intent to commit a terrorist act, or intent to unduly compel a government to perform an act if that act is necessary to comply with international law, or cannot be construed as intent to destabilise the economic structures of a state where such destabilisation will arise from that state's breaches of international law. I emphasise again the protections which exist in Ireland for freedom of expression, to which I referred previously in response to other amendments the Senator put forward.”
“However, if we were to remove “of itself”, no doubt a smart and shrewd lawyer would be able to state that, if somebody was involved in strike action but also in quite clearly terrorist action, the provision could not apply because it says in the legislation that, if anyone is involved in any strike action, that cannot constitute grounds for inferring they are doing terrorist activity. The reason we put in the words “of itself” is to ensure it is the specific act itself that recognises that they cannot be prosecuted because they are involved in that activity of itself. If they do something else, obviously that can be taken into account. I oppose amendment No. 19 because it would reduce that specificity and make the text less clear.”
“Obviously the Senator is not precluded from raising issues of concern to her in respect of this legislation as it goes through the House, but it is instructive to note that those two terms, “of itself” and “unduly compelling”, have been in our legislation for more than 20 years and they have not given rise to the issues of concern she has mentioned. The inclusion of “of itself” in the subsection I have referred to means that the specific act that a person has engaged in, whether protest, advocacy or dissent, when considered entirely on its own, is not grounds to infer attention to commit a terrorist act.”
“For 20 years we have had the term “of itself” contained within section 6(5) of the 2005 Act and it has not given rise to the issues the Senator is concerned about. With the second issue the Senator raised in respect of amendment No. 19, she expressed concern about the reference to “unduly compelling.” Again, it is important to note that in the 2005 legislation, the definition of “terrorist activity” means an act that is committed in or outside the State and is committed with the intention of "unduly compelling a Government or international organisation to perform or abstain from performing an act”.”
“I thank Senator Higgins for her amendment. We are discussing amendments Nos. 20 to 24, inclusive, and the first, in particular, seeks to amend what is section 6(5) of the 2005 Act. The first amendment put forward by Senator Higgins is to remove the words “of itself” from the new definition going into subsection (5). It is important to point out that the new subsection (5) does not differ that much from the old subsection (5) in what is section 6 of the legislation, and if we look at what we are dealing with in terms of that subsection, it reads "the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout or other industrial action, is not of itself a sufficient basis for inferring that the person is carrying out an act with the intention specified ... of terrorist activity".”
“That is not what is envisaged here. It is also important to point out that, under subsection 6(6) of the 2005 Act, where a person is charged with an offence that, in the opinion of the Attorney General, was committed in or outside the State with any of a listed set of intentions, the proceedings can proceed only with the consent of the Attorney General. That is another safety net. To answer the Senator's queries briefly and respond to her concerns, there is nothing I see in what I am proposing in section 3 that could give rise to the type of prosecutions that concern her and that we have seen in the UK. Here, there must be an intention to incite a person to commit terrorist activity. Terrorist activity is very clearly defined in section 2.”
“On the definition of terrorist activity, the Senator will see that the earlier part of the legislation, section 2 sets out the definition of terrorist activity. It is much more limited than the types of definitions that are included within legislation in Germany or indeed the UK. I am more confident talking about the legislation that operates in the UK than that in Germany. Section 13 of the UK's Terrorism Act 2000 is legislation I would not even attempt to introduce here. It is nowhere near the legislation that I propose to the Seanad today. That Act states that if you wear an emblem that can be seen as supportive of a prescribed organisation, you are committing an offence. It is an extraordinarily broad criminal Act that covers organisations that can be proscribed by a Minister just at the stroke of a pen.”
“In the first instance, we need to recognise that interpretation of this legislation when somebody is being prosecuted for an offence under section 4A of the principal Act is the function of the Judiciary. No matter what the Senator or I say, we are not the interpreters. However, I do have a responsibility to set out the clear intention of the legislation. When the court comes to examine the offence and consider the section, it will primarily rely upon the wording we have put into the legislation. The Senator mentioned in her introductory remarks the question of whether something could be considered to incite. There is a requirement that there be an intention on the part of the accused to incite persons to commit terrorist activities. Therefore, the fact that something could be considered inciting is not sufficient.”
“It is important to note, in the context of the directive that is being transposed, that the types of events we are talking about here are those like that horrific attack in the Bataclan. If there were individuals who incited others - more naive people - to get involved in the commission of a terrorist act such as that, then those masterminds behind it, who may have been influential on impressionable people who came before them, should have a criminal liability. That is the purpose of section 3. The purpose of section 3 is not in any way to curtail freedom of expression in the circumstances and examples the Senator set out.”
“I would be concerned if we started saying that X and Y are not covered because people might then say that Z must be covered because it is not expressly ruled out. As the Senator will be aware, we have strong freedom of expression rules in this country based, in the first instance, on our Constitution and, in the second instance, on the European Convention on Human Rights, ECHR. They vigorously defend the right of people to express their opinions, such as the examples the Senator identified in her contribution. Looking at section 3, the important part in order for this offence to be triggered is that there has to be the intention of inciting persons to commit terrorist activity. It only triggers if that occurs.”
“I thank Senator Higgins for coming back in to talk about amendments Nos. 13 and 14. At the outset, I assure the Senator that the types of examples she gave on the floor of this House as potential prosecutable offences are not offences. I do not see any circumstance as to how they could apply or come within the terms of section 3 of the legislation. However, I have a problem with provisions going into criminal statutes that begin by stating, “For the avoidance of doubt”, and then go on to specify what is not covered. It is bad drafting procedure to put into legislation, “For the avoidance of doubt, this is not covered”, because it assumes that all that is not covered must be specified. There are many other things not covered by this legislation.”
“Section 7 of the Bill amends section 6 of the principal Act by, among other things, introducing a new subparagraph (iia) under subsection (1). This new provision provides that attempts to engage in terrorist linked activity are offences under the Act other than "public provocation to commit a terrorist offence". Thus, as attempts to provoke the commission of a terrorist offence are not offences the Bill, so then attempts to glorify terrorism are not offences under the Bill. For these reasons, I cannot support the amendment.”
“To meet the definition of the offence, such a message to the public would have had to be published or distributed with the intent of inciting a person to commit a terrorist activity and the message's "distribution or publication" would have to give rise "to the reasonable apprehension that the commission of a terrorist activity could thereby result." Thus, glorification is not of itself an activity or offence under the Bill; rather, it can be a relevant characteristic of a message published or distributed to the public within the definition of public provocation. Further, section 2 of the Bill, which amends section 4 of the principal Act, provides that public provocation to commit a terrorist offence falls within the definition of terrorist-linked activity for the purposes of the Act.”
“It refers to the characteristic or nature of a message or the content of a message that may, subject to other conditions, form part of the offence of public provocation. The definition of public provocation to commit a terrorist offence in section 3 of the Bill includes the distribution or publication of a message that glorifies a terrorist activity.”
“As mentioned, section 3 reformulates the definition of public provocation and provides in section 4A(a)(ii) that the publication or distribution of a message to the public that glorifies terrorist activity can, if other conditions are met, form part of the offence of public provocation. The inclusion of this provision was required to give effect to the directive. If I understand the intent of Senator Higgins's amendment correctly, it is to ensure that attempts to glorify terrorism are not offences under the Bill. If that is the case, I can assure the Senator that this amendment is unnecessary as this is not an offence under the Bill. Section 4A(a)(ii) does not refer to an activity, much less an offence.”
“I have just come from a meeting of the Oireachtas committee on justice. These amendments, in particular amendment No. 19, seek to introduce various amendments to section 3 of the Bill. I will take the opportunity to address amendment No. 19, for which I thank Senator Higgins, which would amend the existing section 6(1)(a)(ii) of the principal Act. This subsection of the principal Act currently provides that a person is guilty of an offence under the Act if he or she attempts to engage in terrorist activity or terrorist-linked activity, other than public provocation to commit a terrorist offence. Thus, the Act as it stands does not allow for an attempt offence for public provocation.”
“For these reasons, the question of seeking a disregard for a deceased person should ultimately be a matter for those persons specified in the legislation. It is also worth bearing in mind that many comparable schemes in other jurisdictions do not make any provision for disregard on behalf of deceased persons or are very limited in who may apply in such cases. The Bill, as drafted, strikes an appropriate balance by enabling applications from a wide range of family members, partners and relatives. I know the Senator has expressed her intention to withdraw the amendment, but I just wanted to make those points on it.”
“Third, and fundamentally, when it comes to deceased persons, there may in some cases be real privacy concerns and other sensitivities around reopening what may be a painful chapter of family history for the surviving families or partner of the deceased. It may be deeply personal or divisive within the family. It is not necessarily a matter in which someone external, such as a friend of the deceased, should get involved, regardless of how close they may have been to the deceased. Equally, in my view, what makes a disregard for a deceased person truly meaningful is where it is sought by someone with an indisputable and tangible link to the deceased person, whether by blood, marriage or a committed intimate relationship, which of course includes partner or civil partner.”
“This means that such people are included in the first order category of persons who may make an application on behalf of a deceased person, rather than in the relatives category, which the Senator's amendment would effectively align them with and consign them to. A relative, as defined in the Bill, may only make an application where there is no objection from an immediate family member. A second difficulty with the amendment is that the term "demonstrably trusted person to the relevant person" is a very vague term. It could present significant difficulties for statutory interpretation or in practice when determining what is meant by "demonstrably trusted". How do we demonstrate the person was "demonstrably trusted" by the deceased person? How is it to be assessed and applied in a consistent way?”
“It states: “relative” means, in relation to a relevant person who is deceased, a brother, step-brother, sister, step-sister, grandchild, uncle, aunt, niece, nephew, grandniece or grandnephew of the relevant person. The amendment proposes that this would now include a "partner, or other demonstrably trusted person to the relevant person". While I accept the good intentions of the proposed amendment, there are several reasons I cannot accept it. First, partners are already captured in the Bill. In fact, they are included in the definition of "immediate family member" in section 51, which is something I should have referred to a few moments ago. The definition in question refers to a "civil partner, cohabitant, partner or child of the relevant person".”