Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993

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Complaints procedure.

9.—(1) A contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act, or a failure to fulfil a condition specified in section 4 or 5 of this Act, in relation to an authorisation shall not of itself render the authorisation invalid or constitute a cause of action at the suit of a person affected by the authorisation, but any such contravention shall be subject to investigation in accordance with the subsequent provisions of this section and nothing in this subsection shall affect a cause of action for the infringement of a constitutional right.

(2) (a) There shall stand established the office of Complaints Referee and the holder of the office shall be known as the Complaints Referee and is referred to in this section as “the Referee”.

(b) A person appointed to be the Referee shall be a judge of the Circuit Court, a judge of the District Court or a person who is for the time being a practising barrister, or a practising solicitor, of not less than 10 years' standing.

(c) The Referee shall be appointed by the Taoiseach, shall hold office for a term of 5 years and, subject to the provisions of this subsection, shall be eligible for reappointment as the Referee.

(d) Subject to the provisions of this subsection, the terms and conditions, including terms and conditions relating—

(i) except in a case where the Referee is a judge of the Circuit Court or a judge of the District Court, to remuneration, and

(ii) to allowances for expenses,

upon which the Referee shall hold office shall be such as may be determined by the Minister, with the consent of the Minister for Finance, at the time of his appointment or reappointment.

(e) The Referee may at any time resign his office as the Referee by letter sent to the Taoiseach and the resignation shall take effect on and from the date of receipt of the letter.

(f) The Referee may be removed from office by the Taoiseach but only for stated misbehaviour or incapacity and upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.

(3) A person who believes that a communication sent to or by him has been intercepted after the commencement of this Act in the course of its transmission by An Post or Bord Telecom Éireann may apply to the Referee for an investigation under this section into the matter.

(4) Where an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—

(a) whether a relevant authorisation was in force at the material time, and

(b) if so, whether there has been any contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act in relation to the authorisation.

(5) If, on an investigation under this section, the Referee concludes that there has been a contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act in relation to a relevant authorisation, he shall—

(a) notify the applicant concerned in writing of that conclusion,

(b) make a report of his findings to the Taoiseach, and

(c) if he thinks fit, by order do one or more of the following, that is to say:

(i) quash the relevant authorisation,

(ii) direct the destruction of any copy of the communications intercepted pursuant to the authorisation,

(iii) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.

(6) If, during an investigation under this section in relation to an authorisation for the purpose of criminal investigation, the Referee concludes that there has not been a contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act in relation to the authorisation but that the offence concerned was not a serious offence, he shall, having given notice to the Minister of his intention to do so, refer the question whether the offence was a serious offence to the designated judge for his determination, and—

(a) if the designated judge agrees that the offence was not a serious offence, the Referee shall—

(i) notify the applicant concerned in writing of the conclusion of the Referee,

(ii) make a report of the findings of the Referee to the Taoiseach, and

(iii) if he thinks fit, by order do one or more of the following, that is to say:

(I) quash the relevant authorisation,

(II) direct the destruction of any copy of the communications intercepted pursuant to the authorisation,

(III) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order,

and

(b) if the designated judge disagrees with the conclusion of the Referee on the question aforesaid, the Referee shall give notice in writing to the applicant stating only that there has been no contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act in relation to a relevant authorisation.

(7) A notification given or report made under subsection (5) or (6) of this section shall state the effect of any order under it in the case in question.

(8) If, on an investigation under this section, the Referee comes to any conclusion other than those mentioned in subsections (5) and (6) of this section, he shall give notice in writing to the applicant concerned stating only that there has been no contravention of a provision of section 2 , 6 , 7 or 8 (6) of this Act in relation to a relevant authorisation.

(9) Subject to subsection (6) of this section, a decision of the Referee under this section shall be final.

(10) For the purpose of an investigation under this section, the Referee shall have access to and may inspect any official documents relating to a relevant authorisation or the application therefor.

(11) Every person who was concerned in, or has information relevant to, the making of the application for, or the giving of, a relevant authorisation, or was otherwise concerned with the operation of any provision of this Act relating to the application or authorisation, shall give the Referee, on request by him, such information as is in his possession relating to the application or authorisation.

(12) The Minister shall implement any recommendation under subsection (5) (c) (iii) or (6) (a) (iii) (III) of this section.