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Public
Interest Media Advocate Bill 2013
Introduced into the House of
Representatives on 14 March 2013}
Portfolio: Broadband, Communications
and the Digital Economy
Summary of committee view
1.1
The committee
seeks clarification about whether the combined effect of proposed powers to
compel a person to provide information in the Broadcasting Legislation
Amendment (News Media Diversity) Bill 2013 and proposed powers in this bill
which enables the PIMA to disclose information to bodies with prosecutorial or
regulatory enforcement functions is compatible with the right not to
incriminate oneself.
Overview
1.2
This bill seeks
to create a new independent statutory office of the Public Interest Media
Advocate (PIMA) which will perform functions under the News Media (Self-regulation)
Bill 2013 and the proposed new Part 5A of the Broadcasting Act 1992 (if
enacted).[1]
Compatibility with human
rights
1.3
The bill is
accompanied by a self-contained statement of compatibility which sets out in
some detail the rights engaged by the bill and articulates justifications for
the proposed limitations on the enjoyment of those rights.
Right
not to incriminate oneself
1.4
Clause 20 of the
bill provides that the PIMA may disclose certain types of information to listed
bodies and agencies. These include bodies such as the Australian Securities
Commission (ASIC), the Australian Prudential Regulation Authority (APRA) and
the Director of Public Prosecutions, which have responsibilities for
prosecuting persons for criminal offences or instituting civil penalty
proceedings.
1.5
The information
that may be disclosed will include information obtained by the PIMA under the
proposed new section 78FA of the Broadcasting Services Act 1992 (to be
inserted in that Act by the Broadcasting Legislation Amendment (News Media
Diversity) Bill 2013). Proposed new section 78FA provides that if the PIMA
‘believes on reasonable grounds that the person has information or a document
that is relevant to the operation of this Part’, the PIMA may require the
person to provide the information or documents to the PIMA. Failure to comply
will expose the person to proceedings for a civil penalty.[2]
There is no explicit provision that a person may refuse to comply with such a
requirement on the ground that it may tend to incriminate the person or expose
them to a penalty.
1.6
The statement of
compatibility provided with the bill states that ‘[n]othing in this bill is
intended to abrogate an individual’s common law privilege against
self-incrimination’.[3]
However, it is not clear whether this stipulation would prevent information
obtained under the proposed new section 78FA of the Broadcasting Services
Act 1992 from being used in such a way. In addition, the common law
privilege against self-incrimination may not be co-extensive with the right not
to incriminate oneself under human rights law.
1.7
The committee
intends to write to the Minister for Broadband, Communications and the Digital
Economy to seek clarification about the combined effect of the proposed new
section 78FA of the Broadcasting Services Act 1992 and the proposed
power of the PIMA under clause 20 of this bill to disclose information to
bodies with prosecution or regulatory enforcement functions. In particular, the
committee is concerned that the combination of the two provisions may have the
effect of infringing the right not to incriminate oneself in criminal
proceedings (including civil penalty proceedings, to the extent that these may
be considered ‘criminal’ for the purposes of human rights law).
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