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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC INTEREST MEDIA ADVOCATE BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
PUBLIC INTEREST MEDIA ADVOCATE BILL 2013
OUTLINE
This Bill, the News Media (Self-regulation) Bill 2013, the News Media (Self-regulation)
(Consequential Amendments) Bill 2013, the Broadcasting Legislation Amendment
(Convergence Review and Other Measures) Bill 2013, the Broadcasting Legislation
Amendment (News Media Diversity) Bill 2013 and the Television Licence Fees Amendment
Bill 2013 form a package of measures representing the Australian Governments response to
two independent media reviews conducted in 2011 and 2012 - the Convergence Review and
the Independent Inquiry into the Media and Media Regulation.
The Public Interest Media Advocate Bill 2013 creates a new independent statutory office
which will perform functions under the News Media (Self-regulation) Bill and the public
interest test to be established in the new Part 5A of the Broadcasting Services Act 1992.
The News Media (Self-regulation) Bill 2013 and the News Media (Self-regulation)
(Consequential Amendments) Bill 2013 respond to matters raised in the Convergence Review
and the Independent Inquiry into the Media and Media Regulation relating to standards of
media news and commentary.
The Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill
2013 responds to matters raised in the Convergence Review in relation to use of the sixth
channel of television broadcasting spectrum, Australian content and public broadcasting, and
includes certain other measures.
The Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 responds to
matters raised in the Convergence Review in relation to the importance of diversity of media
control by introducing a public interest test for transactions involving significant news media
voices.
The Television Licence Fees Amendment Bill 2013 provides for the 50 per cent reduction in
the licence fees paid by commercial television broadcasters currently specified in regulations
to be made permanent in legislation on an ongoing basis.
As noted above, this Bill creates a new independent statutory office which will perform
functions under the News Media (Self-regulation) Bill and the public interest test to be
established in the new Part 5A of the Broadcasting Services Act 1992.
The details of the powers and functions conferred on the Public Interest Media Advocate by
the News Media (Self-regulation) Bill 2013 and the Broadcasting Legislation Amendment
(News Media Diversity) Bill 2013 are explained in greater detail in the explanatory
memoranda to those Bills.
The Public Interest Media Advocate will be appointed by the Minister but, to protect the
independence and impartiality of the role, will not be subject to direction by the Minister or
the Government in relation to the performance of its functions or the exercise of its powers.
Specifying that the Public Interest Media Advocate is not subject to direction assists to
safeguard the independence and impartiality of the Public Interest Media Advocates role and
enable it to operate at arms length from the government of the day.
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FINANCIAL IMPACT STATEMENT
The measures in this Bill are not expected to have any significant impact on Commonwealth
revenue or expenditure.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Public Interest Media Advocate Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This Bill forms part of a package of measures representing the Australian Governments
initial response to two independent media reviews conducted in 2011-12 - the Convergence
Review and the Independent Inquiry into the Media and Media Regulation.
This Bill creates a new independent statutory office, known as the Public Interest Media
Advocate. The Bill sets out the appointment process for the Public Interest Media Advocate,
the terms and conditions of appointment and certain miscellaneous provisions. The functions
of the Public Interest Media Advocate are those conferred on it by the News Media (Self-
regulation) Bill 2013 and proposed new Part 5A of the Broadcasting Services Act 1992 to be
inserted by the Broadcasting Legislation Amendment (News Media Diversity) Bill 2013
relating to diversity of media control through the introduction of a public interest test for
transactions involving significant news media voices. Therefore, while the Bill establishes
and sets out the framework within which the Public Interest Media Advocate will operate, the
detail of the Public Interest Media Advocates primary functions is set out in the News Media
(Self-regulation) Bill 2013 and the Broadcasting Legislation Amendment (News Media
Diversity) Bill 2013. Accordingly, the human rights implications of those functions are
considered in detail in the statement of compatibility with human rights in the explanatory
memoranda to those Bills.
The Public Interest Media Advocate will perform its functions and exercise its powers
independently of direction from the Minister or the Government, to ensure the independence
and impartiality of the role of the Public Interest Media Advocate.
Human Rights Implications
This Bill engages the following rights and freedoms:
the right to a fair and public hearing under Article 14(1) of the International Covenant
on Civil and Political Rights (ICCPR)
the right to freedom of opinion and expression under Article 19(2) of the ICCPR
the right to freedom from arbitrary or unlawful interference with privacy under Article
17 of the ICCPR
The right to a fair and public hearing
The Bill will provide the Public Interest Media Advocate with the power to hold hearings in
subclause 19(1). The hearings would be conducted to assist the Public Interest Media
Advocate in performing its functions, or exercising its powers.
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The Public Interest Media Advocate has no discretion under the Bill to conduct the hearings
in any way that is inconsistent with current domestic laws relating to fair hearings.
Consequently, the proposed framework will have no impact on the right to judicial review.
Hearings will be conducted in a fair and impartial manner, consistent with the current judicial
framework in Australia and consistent with both the Judiciary Act 1903 and the
Administrative Decisions (Judicial Review) Act 1997. The Bill is therefore consistent with
Article 14(1) of the ICCPR.
Nothing in this Bill is intended to abrogate an individuals common law privilege against
self-incrimination.
The right to freedom of opinion and expression
The Bill in subclause 19(2) will ensure that the Public Interest Media Advocate, the
Commonwealth, the Secretary of the Department, an APS employee in the Department, and a
person acting with the authority of the Department would not be liable to a civil or criminal
action or proceeding, with regard to the publication of a transcript of a hearing held by the
Public Interest Media Advocate.
Further, at subclause 19(3) the Bill ensures that no person is liable to a civil or criminal action
or proceeding, as a result of a fair and accurate report of a hearing conducted by the Public
Interest Media Advocate.
In this way, the Bill engages the right to freedom of opinion and expression. The Bill is
compatible with this right as it upholds and promotes this right.
The right to freedom from arbitrary or unlawful interference with privacy
The Bill in clause 20, will allow the disclosure of ,,authorised disclosure information by the
Public Interest Media Advocate to a range of persons or authorities where the disclosure
would enable or assist that person or authority to perform its functions or exercise its powers.
Such potential disclosure of personal information engages the right to privacy in Article 17 of
the ICCPR.
,,Authorised disclosure information is defined in the Public Interest Media Advocate Bill
2013 (clause 20) as information:
given in confidence to the Public Interest Media Advocate in connection with the
performance of the Public Interest Media Advocates functions or the exercise of the
Public Interest Media Advocates powers; or
obtained by the Public Interest Media Advocate under section #78FA of the
Broadcasting Services Act 1992 (the BSA), which is proposed to be inserted by the
Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 and would
enable the Public Interest Media Advocate to compel the production of information
or documents relevant to the operation of proposed new Part 5A.
Collecting, using, storing, disclosing or publishing personal information amounts to an
interference with privacy within the meaning of the ICCPR.
In order for privacy not to be arbitrarily interfered with, any interference with privacy must
be both lawful and reasonable in the particular circumstances. In this case, the interference
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will not be "unlawful", as it will be expressly authorised and regulated by the Bill.
Reasonableness, in this context, incorporates notions of proportionality to the end sought and
necessity in the circumstances (Toonen v Australia, Communication No. 488/1992, U.N. Doc
CCPR/C/50/D/488/1992 (1994) at 8.3).
The provisions referred to above will engage the prohibition on unlawful or arbitrary
interferences with privacy to the extent that ,,authorised disclosure information may include
personal information. However the regulatory scheme contains several safeguards to limit
arbitrary interference with privacy:
the disclosure of information by the Public Interest Media Advocate to the persons or
authorities listed in clause 20 of the Bill is only authorised "if the Public Interest
Media Advocate is satisfied that the information will enable or assist the person or
authority to perform any of the functions, or exercise any of the powers, of the person
or authority";
the Public Interest Media Advocate may impose conditions that must be complied
with in relation to authorised disclosure information (for example, in relation to
further disclosure by the receiving party).
In addition, the government bodies listed in subclause 20(2) have specifically been included
because they may perform functions related to the Public Interest Media Advocates
functions. For example, there may be close interaction between the ACMA and the Public
Interest Media Advocate in relation to particular transactions, such as where the ACMA must
give an opinion as to whether a person is in a position to exercise control. The Public Interest
Media Advocate may need to brief the DPP in relation to particular matters under the Act. A
particular transaction may be considered by other government agencies, such as the ACCC,
APRA, ASIC or for foreign acquisition and takeover purposes and the agencies involved may
need to share information about the transaction to ensure decision-making occurs on a
consistent basis.
The safeguards outlined above, mean that there must be a real and cogent link between the
disclosure of the information and the functions and powers of the person or body who
receives the information. This precludes disclosure merely on the basis that the information
might be of interest to the person or body who receives the information.
The Public Interest Media Advocate may only disclose authorised disclosure information to
the Minister if the information relates to the performance of the Public Interest Media
Advocates functions or the exercise of its powers. Disclosure of such information to
authorised Department officials may only be made by the Public Interest Media Advocate for
the purpose of advising the Minister.
Information collected would potentially be subject to existing legislative and common law
safeguards preventing unauthorised disclosure (such as the Information Privacy Principles
under section 14 of the Privacy Act 1988; section 70 of the Crimes Act 1901; and the APS
Values and Code of Conduct under the Public Service Act 1999, where applicable). For
example, the Information Privacy Principles govern all stages of the processing of personal
information, setting out standards for the collection, storage, security, use, disclosure and
quality of personal information.
These limitations on the compulsory collection and use of information guard against arbitrary
interference with privacy.
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Conclusion
The Bill is compatible with human rights for two reasons. First, it upholds the right to
freedom of opinion or expression and promotes this right. Secondly, to the extent that the Bill
may limit human rights with regard to privacy, those limitations are reasonable, necessary
and proportionate to ensure the Public Interest Media Advocate can execute its intended
powers and functions.
This Bill together with the News Media (Self-regulation) Bill 2013 and the News Media
(Self-regulation) (Consequential Amendments) Bill 2013 and the Broadcasting Legislation
Amendment (News Media Diversity) Bill 2013 form a suite of Bills in which human rights
have been engaged. These rights have been addressed in the Statement of Compatibility with
Human Rights for the respective Bills to which they relate.
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ABBREVIATIONS
ABBREVIATIONS
ACCC - Australian Competition and Consumer Commission
ACMA - Australian Communications and Media Authority
APRA - Australian Prudential Regulation Authority
ASIC - Australian Securities and Investments Commission
BSA - Broadcasting Services Act 1992
Department - Department of Broadband, Communications and the Digital Economy
DPP - Commonwealth Director of Public Prosecutions
Minister - Minister for Broadband, Communications and the Digital Economy
PIMA - Public Interest Media Advocate
The Act - Public Interest Media Advocate Act 2013
The Bill - Public Interest Media Advocate Bill 2013
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NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title for the Act. When enacted, the Bill is
to be cited as the Public Interest Media Advocate Act 2013.
Clause 2 - Commencement
Clause 2 sets out when the provisions of the Act commence. The provisions specified in
column 1 of the table will commence, or will be taken to have commenced, on the day
specified in accordance with column 2 of the table.
The covering clauses (sections 1 and 2) and anything not elsewhere covered by the table
commence on the day the Act receives the Royal Assent.
Clauses 3 to 23 commence on a day to be fixed by proclamation or, if they do not commence
within six months from the Royal Assent, they commence on the day after the end of that
period.
Clause 3 - Simplified outline
Clause 3 provides a simplified outline of the Bill, designed to assist the reader.
Clause 4 - Definitions
Clause 4 sets out definitions of key terms used in the Bill.
Clause 5 - Extension to external Territories
Clause 5 extends the Act to all of the external Territories.
Part 2 - Public Interest Media Advocate
Division 1 - Establishment and functions
Clause 6 - Public Interest Media Advocate
Clause 6 formally establishes the office of Public Interest Media Advocate.
Clause 7 - Functions of the PIMA
The functions of the Public Interest Media Advocate are to be the functions conferred on the
Public Interest Media Advocate by the News Media (Self-regulation) Act 2013 and the BSA
and anything incidental to or conducive to the performance of those functions.
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In summary, the principal functions to be conferred on the Public Interest Media Advocate by
the amendments to the BSA in the Broadcasting Legislation Amendment (News Media
Diversity) Bill 2013 are to:
consider and determine applications for approval of transactions that result in a
control event (proposed section 78CB);
consider proposed undertakings in relation to such applications (including proposals
to vary or withdraw them) (proposed sections 78DA, 78DB and 78DC);
issue remedial directions in respect of unapproved transactions (proposed sections
78EA, 78EB and 78EC); and
gather relevant information (proposed section 78FA).
The principal functions conferred on the Public Interest Media Advocate by the proposed
News Media (Self-regulation) Act 2013 relate to the making and revoking of a declaration of
a specified body corporate as a "news media self-regulation body" (see Part 2 of the proposed
Act).
Division 2 - Appointment
Clause 8 - Appointment of PIMA
Subclauses 8(1) and (5) empower the Minister to appoint a person to the office of Public
Interest Media Advocate (by written instrument), on a part-time basis. The legislative note
under subclause 8(1) directs the reader to the Acts Interpretation Act 1901 which deals with
reappointment (section 33AA of that Act provides that a power to appoint includes the power
to reappoint).
Subclause 8(2) sets out the qualifications to be eligible for appointment. To be eligible, a
person must have substantial experience or knowledge, and significant standing, in one or
more of the following areas:
the media industry;
law;
business or financial management;
public administration;
economics.
Subclause 8(3) requires the Minister, before appointing a person as the Public Interest Media
Advocate, to consult the ACMA, the ACCC and such media industry bodies as the Minister
considers appropriate.
Subclause 8(4) makes it clear that this provision does not prevent the Minister from
consulting other bodies and persons. In practice, it is expected that the Minister would consult
the Opposition of the day.
Clause 9 - Period of appointment
Under clause 9, the Minister is to set the period of appointment in the instrument of
appointment. The period must not exceed 5 years. The legislative note under clause 9 directs
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the reader to the Acts Interpretation Act 1901 with respect to reappointment (see clause 8
above).
Clause 10 - Acting PIMA
Under clause 10, the Minister may appoint an acting Public Interest Media Advocate, during
a vacancy in the office, or when the incumbent is absent from Australia, or if the Public
Interest Media Advocate is for any reason unable to perform the duties of the office.
The Minister cannot appoint a person to act as the Public Interest Media Advocate unless that
person is eligible for appointment under subclause 8(2).
Division 3 - Terms and Conditions
Clause 11 - Remuneration
The Remuneration Tribunal is to determine the Public Interest Media Advocates
remuneration in accordance with the Remuneration Tribunal Act 1973. For clarity, in the
Remuneration Tribunal Act 1973, remuneration includes annual allowances (see subsection
3(2) of that Act), but not travelling allowance, and extends to remuneration payable on other
than an annual basis (e.g. daily sitting fees).
If no remuneration determination is in force, the Public Interest Media Advocate is to be paid
the remuneration prescribed in the regulations (subclause 11(1)).
The Remuneration Tribunal Act 1973 also empowers the Remuneration Tribunal to
determine any matter that is significantly related to remuneration, such as travelling or other
allowances that are not annual allowances (e.g. daily sitting fees). As the Remuneration
Tribunal is not required to make additional determinations in relation to other allowances,
these allowances may be prescribed in the regulations (subclause 11(2) refers).
Clause 12 - Disclosure of interests to the Minister
Under clause 12, the Public Interest Media Advocate must give written notice to the Minister
of pecuniary and other interests that conflict or could conflict with the proper performance of
the Public Interest Media Advocates functions. This requirement is a continuous disclosure
requirement, in that it extends to interests that the Public Interest Media Advocate may
acquire while holding office.
Clause 13 - Outside employment
Clause 13 provides that the Public Interest Media Advocate must not engage in any paid
employment that conflicts, or may conflict, with the proper performance of the duties of the
office. Since the Public Interest Media Advocate is a part-time appointment, this section does
not prohibit outside employment absolutely, or otherwise make outside employment subject
to the Ministers approval. Rather, the Public Interest Media Advocate is free to engage in
outside employment provided there is no actual or perceived conflict of duties (and that any
conflict of interest is disclosed in accordance with clause 12).
An actual or perceived conflict of duties is a ground for the Minister to terminate the
appointment (see paragraph 16(2)(b), noted below).
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Clause 14 - Leave of absence
Clause 14 enables the Minister to give leave of absence to the Public Interest Media
Advocate on terms and conditions determined by the Minister.
Clause 15 - Resignation
Under clause 15, the Public Interest Media Advocate may resign the office by giving the
Minister a written resignation. The resignation takes effect on the day it is received by the
Minister, unless a later day is specified in the resignation.
Clause 16 - Termination of appointment
Clause 16 sets out the grounds on which the Minister may terminate the Public Interest Media
Advocates appointment.
The Minister has the discretion to terminate the Public Interest Media Advocates
appointment on the grounds of misbehaviour. The Minister may also terminate the
appointment due to the PIMAs physical or mental incapacity if, as a consequence of that
incapacity, the PIMA is unable to perform the duties of his or her office.
The Minister may also terminate the Public Interest Media Advocates appointment on
insolvency grounds, including if the PIMA becomes bankrupt, applies for relief from
bankruptcy, enters into an arrangement with creditors regarding the payment of his or her
debts or assigns all or part of his or her remuneration for the benefit of creditors
(paragraph 16(2)(a)).
The Minister may also terminate the appointment of the Public Interest Media Advocate if the
PIMA engages in paid outside employment that is contrary to clause 13 (paragraph 16(2)(b)),
or fails to disclose his or her conflicts of interests as required by clause 12 (paragraph
16(2)(c)).
Clause 17 - Other terms and conditions
Clause 17 provides that the Public Interest Media Advocate holds office on terms and
conditions in relation to matters not covered by the Act that are determined by the Minister.
Part 3 - Miscellaneous
Clause 18 - Assistance to the PIMA
Clause 18 enables assistance to be given to the Public Interest Media Advocate by
Commonwealth agencies, including the Department, the ACMA and the ACCC.
The assistance given may include the provision of information, the provision of advice, and
the making available of resources and facilities (including secretariat services and clerical
assistance).
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Clause 19 - PIMA may hold hearings
Clause 19 enables the Public Interest Media Advocate to hold hearings for the purposes of the
performance of the PIMAs functions or the exercise of his or her powers.
Subclause 19(2) provides certain parties (the Public Interest Media Advocate; the
Commonwealth; the Secretary and APS employees of the Department; and any person acting
with the authority of the PIMA) with immunity from an action or proceeding, whether civil or
criminal, in respect of the publication of a transcript of proceedings at a hearing held by the
PIMA. Similarly, subclause 19(3) provides such immunity to any person, in respect of the
publication of a report of proceedings at a hearing held by the Public Interest Media
Advocate, provided the report is fair and accurate.
Subclause 19(2) provides a similar protection to that available in relation to ACMA hearings
under section 203 of the BSA.
Clause 20 - Disclosure of information by the PIMA
Clause 20 enables the Public Interest Media Advocate to disclose certain information
(defined in subclause 20(1) as authorised disclosure information) in circumstances where the
PIMA is satisfied that the information will enable or assist a person or authority to perform
any of the functions or exercise any of the powers of that person or authority (see subclause
20(2)).
The government bodies listed in subclause 20(2) have specifically been included because
they may perform functions related to the Public Interest Media Advocates functions. For
example, there may be close interaction between the ACMA and the PIMA in relation to
particular transactions, such as where the ACMA must give an opinion as to whether a person
is in a position to exercise control. The PIMA may need to brief the DPP in relation to
particular matters under the Act. A particular transaction may be considered by other
government agencies, such as the ACCC, APRA, ASIC or for foreign acquisition and
takeover purposes and the agencies involved may need to share information about the
transaction to ensure decision-making occurs on a consistent basis.
This authorised disclosure information may be subject to conditions made by the Public
Interest Media Advocate in writing (subclause 20(3)). An authorisation instrument that
imposes conditions in relation to a particular disclosure is not a legislative instrument, as it
only applies to a particular case (see subclause 20(4)). Where subclause 20(4) does not
apply, an authorisation instrument will be a legislative instrument (subclause 20(5)).
Subclauses 20(4) and 20(5) are declaratory of the existing law and are not intended to create
exceptions to the operation of the Legislative Instruments Act 2003.
The Public Interest Media Advocate may disclose information to the Minister and to
authorised Department officials for the purpose of advising the Minister (subclauses 20(6)
and (7)).
Clause 21 - PIMA not subject to direction by the Minister
Clause 21 provides that the Public Interest Media Advocate is not subject to direction by the
Minister, or by or on behalf of the Commonwealth Government, in relation to the
performance of its functions or the exercise of its powers. Clause 21 is designed to protect
the Public Interest Media Advocates independence. The Public Interest Media Advocate
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will be equipped to apply specialised knowledge and expertise to its role without being
subject to direction by the executive.
Clause 22 - Annual report
This clause requires the Public Interest Media Advocate to prepare and give to the Minister,
for presentation to Parliament, an annual report on the PIMAs activities during the financial
year and on such matters as the PIMA considers should be included in the report in relation to
the operation of the provisions of the News Media (Self-regulation) Act 2013; Part 5A of the
Broadcasting Services Act 1992; and the remaining provisions of the Broadcasting Services
Act 1992 so far as they relate to Part 5A of that Act.
Clause 23 - Regulations
Clause 23 provides the Governor-General with the power to make regulations prescribing
matters required or permitted by the Act to be prescribed, or necessary or convenient to be
prescribed for carrying out or giving effect to the Act.
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