I have carefully considered Agent's instructions herein and the following is my opinion:
The Facts
1. In November 1995 a Fund Raising Dinner was organised by David Austin in the 21 Club in New York for the Fine Gael party.
2. It was known to the President of Fine Gael and its Executive that this function was being organised by Mr Austin and they approved of him so doing. The President of Fine Gael attended this dinner.
3. Prior to the dinner David Austin approached Denis O'Brien, requesting a contribution from him to the dinner. He responded positively saying that his donation would be paid via the US firm of Telenor, as he wished that his contribution be treated in confidence.
4. This information was passed to the President of Fine Gael, who indicated that such money should be "left where it was". By this he intended to convey to Mr Austin that the subscription was not to be accepted. The reason for the reluctance to accept Mr O'Brien's money was that, shortly before that, Mr O'Brien's company had been awarded the licence for the second mobile phone operation in the country and this had been the subject of adverse comment in the newspapers.
5. Notwithstanding this conversation, in January 1996 David Austin accepted a payment of $50,000 from Telenor.
6. The said sum of $50,000 was lodged to an account in Jersey.
7. On the 6th May, 1997, a donation of £33,000 was received by the General Secretary of Fine Gael drawn on David Austin's bank account at the Baggot Street branch of the Bank of Ireland. It was believed by the General Secretary that this was a personal donation made by a very wealthy man, and no connection was made by him with the New York dinner, Telenor, Denis O'Brien or Esat Digifone.
8. At some subsequent date David Austin furnished to Telenor an invoice for $50,000, stating it to be in connection with consultancy fees.
9. On the 13th February, 1998, representatives of Telenor met with the General Secretary of Fine Gael and they outlined the events herein-before described. They said their concern was whether their client was obliged to disclose this transaction to the Moriarty tribunal. Following the receipt of this information the donation was returned immediately.
The Issue
10. Fine Gael wishes to be advised as to whether it has an obligation to disclose these matters to Judge Moriarty.
11. Judge Moriarty is requested to enquire as to whether "Mr Lowry did any act or made any decision in the course of any ministerial office held by him to confer any benefit on any person making any substantial payments to Mr Lowry directly or indirectly (Whether or not used to discharge monies or debts due by any connected person) to Mr Lowry". These payments would have to have been made during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him, or had the potential to influence the discharge of such office.
12. In my opinion, the payments made by Mr O'Brien to Fine Gael do not come within the terms of reference of the Moriarty tribunal.
Firstly, the payments were not made directly or indirectly to Michael Lowry. Secondly, notwithstanding the fact that Mr Lowry was a trustee at the time of the New York dinner, Fine Gael could not be considered to be a connected person within the meaning of the Ethics in Public Office Act 1995. Fine Gael is not a "person" nor is it an "individual" nor is it a "body corporate". Thirdly, even if it were a body corporate it could not be said that one of the trustees of Fine Gael "controls" that body corporate.
For the foregoing reasons I am of the opinion that the terms of reference of the Moriarty tribunal do not encompass this particular payment.
JAMES A.NUGENT, SC Dated March 13th, 1998