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Small Business Commissioner Bill 2013

Introduced into the Senate on 25 February 2013
By: Senator Whish-Wilson

Summary of committee view

1.1        The committee seeks clarification as to whether clause 13 is intended to compel a person to provide information or to produce a document even if to do so might tend to incriminate them or expose them to a penalty.

1.2        The committee is satisfied that while the bill engages the right to work and the right to privacy, any limitation on those rights appears to be reasonable and proportionate.

Overview

1.3        This bill seeks to establish the Office of the Small Business Commissioner. It provides for the appointment, functions and powers of the new Commissioner and includes an annual reporting requirement and a power to make regulations.

Compatibility with human rights

1.4        The bill is accompanied by a self-contained statement of compatibility, which states that the bill 'does not engage any of the applicable rights or freedoms' and is therefore 'compatible with human rights as it does not raise any human rights issues.' However, the bill appears to engage a number of rights, including the right not to incriminate oneself, the right to work and the right not to be subject to arbitrary interference with privacy.[1]

Right not to incriminate oneself

1.5        Clause 13 of the bill seeks to provide the new Small Business Commissioner with the power to issue a notice to a person to provide information, produce documents or to attend at a specified place to answer questions, when the Commissioner has reason to believe that a person is capable of giving information or producing documents relevant to a matter that is being inquired into by the Commissioner.

1.6        Subclause 13(6) makes it an offence for a person not to comply with a notice to attend to give information to the Commissioner. The bill provides that failure to comply is a strict liability offence,[2] yet it will not be an offence if the person has a reasonable excuse for failing to comply with the notice.[3] Subclause 13(9) also provides:

A person is not liable to any penalty under the provisions of any law of the Commonwealth or of a Territory by reason only of the person having given information, produced a document or answered a question when required to do so under this section.

1.7         The committee is unclear whether the intended effect of the provisions requiring a person to provide information or documents or answer questions is to abrogate the privilege against self-incrimination.[4] If so, it is unclear whether subclause (9) provides for a use immunity (so that any information, documents or answers obtained as a direct consequence of the notice is not admissible in evidence against the person in other proceedings) and if so, whether it excludes a derivate use immunity (allowing the information, documents or answers to be indirectly used to look for evidence against the person). It is also not clear if subclause 13(9) applies to information or documents provided under subclause 13(1), given there is no consequences of not complying with a notice to produce information or documents under this subclause,[5] and so it is unclear whether a person could be said to be 'required' to provide such information.

1.8                 The committee intends to write to Senator Whish-Wilson to seek clarification whether the intended effect of the bill is to compel a person to provide information or to produce a document even if to do so might tend to incriminate oneself or expose the person to a penalty. The committee notes that in general the right not to incriminate oneself will require at least explicit protection against the use of information or documents or answers produced under compulsion in criminal proceedings or proceedings leading to the imposition of a penalty against that person.

Right to work

1.9        Article 6 of the International Covenant on Economic, Social and Cultural Rights provides that everyone has the right to work, including the 'opportunity to gain his living by work which he freely chooses or accepts'. Clause 18 of the bill provides that ‘[t]he Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.’ Clause 22(2)(d) provides that the Governor-General must terminate the appointment of the Commissioner if the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.

1.10             The committee considers that clauses 18 and 22(2)(d) appear to limit the right to work, but in the context of the bill which creates the office of Commissioner as a full-time position, this restriction can be viewed as a reasonable and proportionate limitation on that right.

Right to privacy

1.11      Clause 24 of the bill requires a person appointed as Commissioner to disclose 'all interests, pecuniary or otherwise, that the Small Business Commissioner has or acquires and that conflict, or could conflict, with the proper performance of the Commissioner’s functions.’

1.12             This requirement appears to engage the right to privacy under article 17 of the ICCPR, but the committee considers that, as the duty of disclosure is limited to disclosure of interests relating to the proper performance of the duties of the office, it appears to be a reasonable and proportionate limitation of the enjoyment of the right to privacy.

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