An order restraining the media from publishing material circulated by the Mahon Tribunal could mean there might never be publication of matters which are clearly in the public interest, the Supreme Court was told yesterday.
Mr Eoin McCullough SC said the tribunal should not be granted such an order unless it could prove the material in question was confidential and that it was against the public interest to publish it.
The tribunal was not entitled to argue that all material circulated by it was confidential without proving the claim.
He said there was a possibility of a long delay between the circulation of information by the tribunal and its ultimate publication and this could be contrary to the public interest. It was also possible the material, while its publication was in the public interest, might never come into the public domain.
Counsel also argued that, under the European Convention of Human Rights Act, every restriction on freedom of expression must be proportionate and justified as being necessary in a democratic society.
He was making submissions during the continuing hearing of the tribunal's appeal against the High Court's refusal of October 2005 to grant an order against the Sunday Business Postand others restraining publication of any material circulated by the tribunal to persons prior to such material being ventilated in public hearings.
The two-day appeal concluded today and the Chief Justice, Mr Justice John Murray, presiding over the five-judge court, reserved its decision.
The case arose after the SBPpublished two articles in October 2004, headlined "Jim Kennedy's Pipe Dream" and "Fifty councillors named in new planning list" which articles, the tribunal claims, were based on extensive leaks of "confidential" tribunal documents.
The tribunal says that, following the Supreme Court's upholding of a challenge by Cork property developer Owen O'Callaghan to the tribunal's failure to disclose to him all material relevant to allegations made against him, it is obliged to circulate certain information to persons affected by such information.
It contends such information is confidential and cannot be disclosed prior to public hearings because that would deprive affected persons of fair procedures and their rights to privacy and their good name.
The publication by the media of "confidential" information circulated by the tribunal infringes the right to freedom of expression, counsel for the inquiry said today.
Tribunals were structured to bring into the public domain matters which might not otherwise emerge and procedures must have regard having structures which respected citizens' rights, Paul O'Higgins SC argued in closing speeches.
If citizens cannot rely on confidentiality when giving information to a tribunal, their right to freedom of expression is affected, he added.
The confidentiality of all information circulated by the tribunal derived from it being gathered by the tribunal for the purpose of its inquiries.
The tribunal is obliged to formulate its procedures in accordance with the Constitutional rights to respect for privacy and one's good name, counsel said.
Encroachment on the right to privacy must only be for the purpose of the inquiry and to the extent necessary, Mr O'Higgins continued.
That obligation extended into perpetuity. When the tribunal circulated documents in line with its constitutional obligations, anyone who took and published those documents was also bound by the duty of confidentiality, he said.