The Irish Times found it impossible to give the undertaking required by the tribunal, being conscious of its duties as a responsible organ of public opinion, Mr John Gordon SC for the newspaper told Mr Justice Flood yesterday.
Mr Gordon also said it was the newspaper's belief that the making of an order such as that proposed by Mr Justice Flood "is outside the competence of the tribunal", under Section 4 of the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998.
In the circumstances The Irish Times could do no more than to "reassure the tribunal that it will conduct itself in a responsible manner" in relation to its reporting, Mr Gordon told the tribunal.
Mr Gordon said no complaint had been made against the newspaper by the tribunal, or as far as it was aware by any person, in relation to publication of the tribunal's activities.
In support of its contention, The Irish Times was relying on a number of points. These included an assessment of Section 4 of the Tribunal Of Inquiry Act which led the newspaper to believe that the tribunal had no jurisdiction to make such an order.
Even if the tribunal found it did have jurisdiction to make such an order the circumstances did not warrant the making of an order, he argued.
Mr Gordon said freedom of expression was guaranteed by Article 40 of the Constitution and Article 10 of the European Convention on Human Rights. He added that in order not to infringe the freedom of the press a balancing of competing rights had to be weighed up.
However, in the absence of any specific complaint against The Irish Times "one doesn't even get to start the balancing procedure".
Mr John Trainor SC, counsel for RTE, told the inquiry that the broadcaster recognised the important nature of the work of the tribunal and believed it was a matter of great public interest.
Mr Trainor concurred with Mr Gordon that it was "not clear that the tribunal has the jurisdiction" to make an order such as that envisaged. Mr Trainor argued that there "was no factual basis for the need to make such an order against RTE".
Mr Hugh Hartnett SC for Ire- land on Sunday newspaper agreed with Mr Trainor that an "exceptional order of this type was never considered by the legislature", while this view was also put forward by Mr Eoin McCullough, representing Independent Newspapers.
Arguing that the tribunal powers relate to the taking of evidence, Mr McCullough said the order was of a type normally granted by a court. Mr McCullough said that it was his view that the tribunal "clearly doesn't have the power to make the order", and "in common with others, if the tribunal takes the view that it has the jurisdiction to make the order then it should not do so".
Mr McCullough questioned the definition of the word "confidential" and said that if matters came into the tribunal's knowledge which were already in the public domain, the media could be forbidden from reporting them. He also felt that as editors would not know what was in the tribunal's domain, they would also not know what they were not supposed to publish.
Mr Justice Flood asked Mr McCullough if he would agree that it seemed clear that his clients were in possession of an affidavit which could only have come from the tribunal office. Mr Justice Flood also asked if Mr McCullough would return the affidavit. Mr McCullough said that what was in his client's ownership was a photocopy, and its ownership by the tribunal was in doubt. To hand the photocopy over could reveal the identity of the journalist's source, he said.
Asked why it would identify the source, Mr McCullough said he had not taken instruction on the point but felt that if he could answer it would have the same effect as revealing the source.
After a 15-minute adjournment to allow Mr McCullough to consult with his client, Mr McCullough said that as far as his client "is able to tell there are no distinguishing features on its face, but he nevertheless fears that there may be some".
Mr Hugh Mohan for TV3 and the Sunday Tribune said there was no complaint against the organisations he represented but they, a television station and a newspaper would be affected by such an order. His clients have an express and clear constitutional right along with rights under Article 10 of the Convention on Human Rights.
The test of the need for the order should be strict, heavy and high. There was no cause to ban the organisations from doing something in the future when there was no evidence in the past of any such thing.
