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32 2003

OFFICIAL LANGUAGES ACT 2003

PART 4

An Coimisinéir Teanga

Establishment of Oifig Choimisinéir na dTeangacha Oifigiúla.

20. —(1) There is established an office to be known as Oifig Choimisinéir na dTeangacha Oifigiúla and the holder of the office shall be known as An Coimisinéir Teanga and is referred to in this Act as the Commissioner.

(2) The Commissioner shall be independent in the performance of his or her functions.

(3) The appointment of a person to be the Commissioner shall be made by the President on the advice of the Government following a resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

(4) The provisions of the Second Schedule shall have effect in relation to the Commissioner.

Functions of Commissioner.

21. —The functions of the Commissioner shall be, in addition to any functions conferred on him or her by any other provision of this Act—

(a) to monitor compliance by public bodies with the provisions of this Act,

(b) to take all necessary measures within his or her authority to ensure compliance by public bodies with the provisions of this Act,

(c) to carry out investigations, whether on his or her own initiative, on request by the Minister or pursuant to a complaint made to him or her by any person, into any failure by a public body to comply with the provisions of this Act that he or she or, as appropriate, the Minister, considers may have occurred,

(d) to provide, as he or she considers appropriate, advice or other assistance to the public regarding their rights under this Act,

(e) to provide, as he or she considers appropriate, advice or other assistance to public bodies regarding their obligations under this Act, and

(f) to carry out an investigation, whether on his or her own initiative, on request by the Minister or pursuant to a complaint made to him or her by any person, to ascertain whether any provision of any other enactment relating to the status or use of an official language was not or is not being complied with.

Powers of Commissioner.

22. —(1)  (a) For the purpose of his or her functions under this Act the Commissioner may require any person who, in the opinion of the Commissioner, is in possession of information, or has a record or thing in his or her power or control, that is relevant to the purposes aforesaid to furnish to the Commissioner any such information, record or thing and, where appropriate, may require the person to attend before him or her for that purpose, and the person shall comply with the requirement.

(b) Paragraph (a) of this subsection does not apply to information or so much of a record as relates to decisions and proceedings of the Government or of any committee of the Government and for the purposes of this paragraph, a certificate given by the Secretary-General to the Government and certifying that any information or record or part of a record so relates shall be conclusive.

(2) Subject to subsection (3), no enactment or rule of law prohibiting or restricting the disclosure or communication of information shall preclude a person from furnishing to the Commissioner any such information or record, as aforesaid.

(3) Subject to the provisions of this Act, a person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

(4) A person who fails or refuses to comply with a requirement under this section or who hinders or obstructs the Commissioner in the performance of his or her functions under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 or to imprisonment for a term not exceeding 6 months or both.

(5) Where an offence under subsection (4) has been committed by a body corporate and is proved to have been committed with the consent or connivance of, or to have been facilitated by any neglect on the part of any director, manager, secretary or other similar officer of such body or of any person who was purporting to act in any such capacity, that officer or person, as well as such body, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(6) Proceedings for an offence under this section may be brought and prosecuted by the Commissioner.

(7) The Commissioner may, if he or she thinks fit, pay to any person who, for the purposes aforesaid, attends before the Commissioner or furnishes information or a record or other thing to him or her—

(a) sums in respect of travelling and subsistence expenses properly incurred by the person, and

(b) allowances by way of compensation for loss of his or her time,

of such amount as may be determined by the Minister.

(8) A statement or admission made by a person for the purposes aforesaid shall not be admissible as evidence against that person in any criminal proceedings.

(9) Nothing in this section shall confer any right to production of, or access to, any record or thing subject to legal privilege.

Conduct of investigations.

23. —(1) An investigation by the Commissioner under this Act shall be conducted otherwise than in public.

(2) Where the Commissioner proposes to carry out an investigation under this Act he or she shall—

(a) notify—

(i) the public body concerned,

(ii) in a case where a complaint has been made to the Commissioner, the person who made the complaint, and

(iii) the Minister,

in writing of that fact, and

(b) afford—

(i) the public body concerned, and

(ii) any other person who appears or, in a case where a complaint has been made to the Commissioner, is alleged to have been responsible for the matter complained of,

an opportunity to comment on the matter and, if a complaint in relation to the matter has been made to the Commissioner, on any allegations contained in the complaint.

(3) The Commissioner may—

(a) refuse to investigate a complaint under this Act, or

(b) discontinue an investigation under this Act into such a complaint,

if he or she becomes of opinion that—

(i) the complaint is trivial or vexatious,

(ii) the person making the complaint has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if he or she has, has not been refused redress,

(iii) the complaint relates solely to a matter within the power of the Ombudsman to investigate pursuant to section 4(2)(a) of the Ombudsman Act 1980 , or

(iv) the matter complained of does not involve any contravention of the provisions of this Act or of any other enactment relating to the status or use of an official language.

(4) Subject to the provisions of this Act, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in all the circumstances of the case.

(5) The Commissioner may determine whether any person may be represented, by counsel, solicitor or otherwise, in an investigation by him or her under this Act.

Exclusions.

24. —The Commissioner shall not investigate any complaint made by or on behalf of a person if the complaint is one in relation to which the person affected by the matter complained of has initiated, in any court, civil legal proceedings and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court, whether the proceedings have been otherwise concluded or have not been concluded:

Provided that the Commissioner may investigate the matter notwithstanding that it is one to which this section relates if it appears to the Commissioner that special circumstances make it proper to do so.

Disclosure of information.

25. —Information or a record or thing obtained by the Commissioner or his or her officers in the course of the exercise by him or her of his or her functions under this Act shall not be disclosed except for the purposes of such exercise and of any statement, report or notification to be made under this Act and the Commissioner or his or her officers shall not be called upon to give evidence in any proceedings of matters coming to his or her or their knowledge in the course of such exercise.

Report of findings.

26. —(1) In any case where a complaint is made to the Commissioner and the Commissioner decides not to carry out an investigation under this Act or decides to discontinue such an investigation, he or she shall send to the person who made the complaint and to the public body concerned a statement in writing of his or her reasons for the decision and shall send to such other person as he or she considers appropriate such statement in writing in relation to the matter as he or she considers appropriate.

(2) In any case where the Commissioner conducts an investigation under this Act, he or she shall prepare and submit to—

(a) the public body concerned,

(b) the Minister, and

(c) in a case where a complaint is made to the Commissioner, the complainant,

a report in writing of the findings of the investigation and may include in the report any recommendations he or she considers appropriate having regard to the investigation.

(3) Without prejudice to subsection (2), the Commissioner may issue an interim report if he or she considers it appropriate so to do.

(4) The Commissioner may request a public body to submit to him or her within a specified time any comments it may have regarding any findings or recommendations contained in a report under this section.

(5) If, within a reasonable time after a report containing recommendations is submitted to a public body under subsection (2), any recommendations contained in the report have not, in the opinion of the Commissioner, been implemented by that body, the Commissioner may, after considering any responses made to him or her by the public body in respect of those recommendations, make a report thereon to each House of the Oireachtas.

(6) The Commissioner shall attach to every report under subsection (5) a copy of every response (if any) made by or on behalf of a public body to the said recommendations.

Schemes of compensation.

27. —(1) The Minister may, with the consent of the Minister for Finance, make a scheme of compensation providing for the payment by a public body to such persons of such sums as may be specified in the scheme, in respect of any failure, specified in a report by the Commissioner under section 26 , by the body (other than a public body, standing prescribed for the purposes of paragraph 1(5) of the First Schedule) to comply with the provisions of this Act.

(2) Notwithstanding paragraph (f) of section 21 , a scheme under subsection (1) may not provide for the payment out of moneys in respect of any failure by a public body to comply with any other enactment relating to the status or use of an official language.

(3) A scheme under subsection (1) may be revoked or varied by a subsequent scheme made thereunder.

Appeals to the High Court.

28. —(1) A party to an investigation under this Act or any other person affected by the findings and recommendations of the Commissioner following such an investigation may appeal to the High Court on a point of law from the decision.

(2) An appeal under subsection (1) shall be initiated not later than 4 weeks after notice of the relevant findings and recommendations was given to the person bringing the appeal.

(3) (a) Where an appeal under this section by a person, other than a head, is dismissed by the High Court, that Court may, if it considers that the point of law concerned was of exceptional public importance, order that some or all of the costs of the person in relation to the appeal be paid by the public body concerned.

(b) The High Court may order that some or all of the costs of a person, other than a head, in relation to a reference under this section be paid by the public body concerned.

(4) A decision of the High Court following an appeal under subsection (1), shall, where appropriate, specify the period within which effect shall be given to the decision.

Publication of commentaries by Commissioner on practical application, etc. of Act.

29. —The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to investigations and findings following investigations, of such holders under this Act.

Reports of Commissioner.

30. —(1) The Commissioner shall, not later than 6 months after the end of each year, prepare and furnish to the Minister a report, in each of the official languages, on his or her activities in that year.

(2) The Minister shall, not later than 2 months after the receipt of the report, cause a copy thereof to be laid before each House of the Oireachtas.

(3) The Commissioner may, if he or she considers it appropriate to do so in the public interest or in the interests of any person, prepare and publish a report in each of the official languages in relation to any investigation carried out or other function performed by him or her under this Act or any matter relating to or arising in the course of such an investigation or performance.

(4) In this section “report” does not include a report under section 26 .