The flood Tribunal is a "unique form of investigation" set up by the Oireachtas, the High Court was told yesterday.
Counsel for the tribunal, Mr Desmond O'Neill SC, was opposing an application by the Criminal Assets Bureau (CAB) for an order preventing the tribunal chairman, Mr Justice Flood, from directing the head of the CAB, Detective Chief Superintendent Fachtna Murphy, to produce to the tribunal documents seized by the CAB from the former assistant Dublin county manager, Mr George Redmond.
The two-day hearing concluded yesterday and Mr Justice McCracken reserved judgment.
Chief Supt Murphy has claimed privilege over the documents sought. The CAB claims the production of the documents would prejudice its own and the Garda investigations, and might possibly prejudice subsequent criminal proceedings.
Yesterday Mr O'Neill said the CAB contended the tribunal chairman had no jurisdiction to decide the question of public privilege raised by Supt Murphy.
The CAB had been set up before the tribunal. The Oireachtas therefore had had the opportunity to allow for the investigation to be an exclusive matter for the Garda and the CAB.
Replying to Mr Justice McCracken, Mr O'Neill said the Minister for Justice could have drawn the CAB's attention to certain planning matters and, while the CAB was independent, it could not have chosen to ignore it.
Mr Justice McCracken said that the CAB was independent and could have come back and said that it did not think this was something worth investigating.
The tribunal had seen Mr Redmond in January and he had then consented to an order of discovery against him, said Mr O'Neill. He did not comply with that order of discovery.
When a subsequent order for discovery was made against him, Mr Redmond had that same evening been arrested at Dublin airport.
Mr Justice McCracken said there clearly must have been a CAB investigation prior to Mr Redmond's arrest.
Mr O'Neill said the CAB had documents which prima facie were material relevant to the matters being currently investigated by the Flood Tribunal. It appeared CAB was claiming that any information that came its way was sacrosanct.
Mr Justice McCracken said the CAB was not objecting to the tribunal getting the information from another source. It appeared to be a matter of principle that, whatever happened, the source ought not to be the Garda or the DPP.
Mr O'Neill said that the tribunal's order directing the CAB to produce the documents did not involve an exercise of the function of administering justice. One of the powers of the tribunal chairman was to oblige persons to produce documents. This was an administrative decision and not the application of the law.
Earlier Mr Dermot Gleeson SC, for the CAB, said that if there was a legislative intention that agencies entrusted with investigating and prosecuting crime were to be "relegated to the sidelines" when a parliamentary tribunal was set up, and if within that area of operation of the tribunal, detection and prosecution of crime was to take second place, then that was a principle which would require the clearest statutory statement.