Bills Digest no. 2 2015–16
PDF version [377KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Paula Pyburne
Law and Bills Digest Section
10 August 2015
Contents
Purpose of
the Bill
Structure of
the Bill
Background
Committee
consideration
Statement of
Compatibility with Human Rights
Policy
position of non-government parties
Position of
major interest groups
Financial
implications
Key issues
and provisions
Part
1—preliminary
Consequential
and Transitional Bill
Concluding
comments
Date introduced: 3
June 2015
House: House of
Representatives
Portfolio: Treasury
Commencement: For
the Australian Small Business and Family Enterprise Ombudsman Bill 2015 sections
1 and 2 on Royal Assent; all other provisions on the earlier of a single day to
be fixed by Proclamation or six months after Royal Assent.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
Bills’ home pages for the Australian
Small Business and Family Enterprise Ombudsman Bill 2015 and the Australian
Small Business and Family Enterprise Ombudsman (Consequential and Transitional
Provisions) Bill 2015, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Australian Small Business and Family
Enterprise Ombudsman Bill 2015 (the principal Bill) is to establish the Australian
Small Business and Family Enterprise Ombudsman (the ASBFE Ombudsman) and to
specify its powers and functions.
The Australian Small Business and Family Enterprise
Ombudsman (Consequential and Transitional Provisions) Bill 2015 (Consequential
and Transitional Bill) amends the Ombudsman Act 1976 to facilitate the
transfer of complaints to the ASBFE Ombudsman from the Office of the
Commonwealth Ombudsman in certain circumstances.[1]
The principal Bill contains five parts:
- Part
1 contains preliminary matters including the meanings of key terms
- Part
2 establishes the ASBFE Ombudsman, including the functions of the Ombudsman,
provides for the appointment of the ASBFE Ombudsman and sets out the conditions
on which persons will assist him or her
- Part
3 details the ASBFE Ombudsman’s advocacy function
- Part
4 sets out the manner in which the ASBFE Ombudsman is to respond to requests
for assistance and
- Part
5 contains general requirements in relation to the concurrent operation of the Australian
Small Business and Family Enterprise Ombudsman Act 2015 (when enacted) and
state laws, secrecy, the review of decisions and other matters.
- The Consequential and Transitional Bill contains two
schedules:
- Schedule
1 contains consequential amendments to the Ombudsman Act for the
transfer of complaints to the ASBFE Ombudsman and
- Schedule
2 contains relevant transitional provisions.
In the lead up to the September 2013 Federal election,
Bruce Billson articulated the Coalition’s commitment to establish a Small
Business Ombudsman if it was elected.[2]
Following that election, as Minister for Small Business,
Mr Billson outlined his plans to:
... create a single entry point for small business to access
Federal small business programmes and support, to contribute to making
Commonwealth laws and regulations more small business friendly and as a
“concierge” for dispute resolution.[3]
First consultation
Consistent with this stated commitment, on 30 April 2014
the Government published a discussion paper about the key responsibilities of
the Ombudsman and invited public comment.[4]
Announcing the release of the discussion paper Mr Billson stated that the
Ombudsman will be a:
- concierge
for dispute resolution
- Commonwealth
wide advocate for small businesses and family enterprises
- contributor
to the development of small business friendly Commonwealth laws and regulations
and
- single
entry point agency through which Commonwealth assistance and information
regarding small business can be accessed.[5]
Second consultation
Having settled on a model, the Government issued an Exposure
Draft of its proposed legislation and, once again, invited comment from
relevant stakeholders.[6]
The Bill reflects the outcome of those consultations.
Selection of Bills Committee
On 18 June 2015 the Bills were referred to the Legal and
Constitutional Affairs Legislation Committee (the Senate Committee) for inquiry
and report by 11 August 2015.[7]
Senate Standing Committee for the
Scrutiny of Bills
On 17 June 2015, the Standing Committee for the Scrutiny
of Bills drew attention to a number of matters in its report.[8]
The comments will be canvassed under the heading ‘Key issues and provisions’
below.
Parliamentary Joint Committee on
Human Rights
On 18 June 2015, the Parliamentary Joint Committee on Human
Rights stated that the Bills ‘do not require additional comment as they promote
human rights or contain justifiable limitations on human rights’.[9]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill does not engage any of the applicable rights
or freedoms and is therefore compatible.[10]
Australian Labor Party
In October 2012, the then Gillard Government appointed
Mark Brennan (formerly the Victorian Small Business Commissioner) as Australian
Small Business Commissioner.[11]
It was considered that an important part of the role would be ‘working
collaboratively across all levels of government to ensure services for small
businesses are simple and easy to access’.[12]
Consistent with that action, the Australian Labor Party
(Labor) has stated that it will support the Bills—with some reservation about
the drafting of the sections of the principal Bill that go to the oversight and
advocacy roles of the Ombudsman.[13]
These concerns are canvassed under the heading ‘Key issues and provisions’
below.
Australian Greens
When the Australian Small Business Commissioner was
appointed, the Australian Greens (the Greens) voiced their support for the
position by introducing a Private Senator’s Bill into the Parliament[14]
which would ‘formalise the role of the Federal Small Business Commissioner in
legislation’.[15]
Speaking on the introduction of the Small Business
Commissioner Bill 2013, Senator Whish-Wilson expressed the view that:
The Small Business Commissioner must be more than a symbolic
position, the Commissioner and their office must be empowered to be effective
advocates for small business.
... the Australian Greens welcomed the decision of the
Government in 2012 to appoint a Small Business Commissioner. However this does
not go far enough—currently the Commissioner has no legislated role. It has no
power to ensure it can be an effective broker between small and big business.
At the moment the Commissioner and their office don’t have defined roles and
responsibilities, the Commissioner can channel their office’s resources and
energy in whatever direction they choose.
Therefore legislation for the office of the small business
commissioner is crucial to ensuring roles are defined and the Commissioner has
the power to be effective.[16]
Given this stated position, it is likely that the Greens
will support the Bills.
Submitters to the second consultation and to the Senate
Committee were generally supportive of the intent of the Bill.[17]
Of major concern to some stakeholders, though, is the use
of the term ‘Ombudsman’. The Australian and New Zealand Ombudsman Association
(ANZOA) is the peak body for Ombudsmen in Australia and New Zealand.[18]
In 2010 ANZOA released a policy statement outlining the essential criteria for
describing a body as an Ombudsman.[19]
In summary, ANZOA’s policy is that a body must:
- be
independent—an ombudsman must not be subject to direction, and must not
be, or be able to be perceived to be, an advocate for any group
- have
a clearly defined jurisdiction
- have
sufficient powers to investigate matters within its jurisdiction, both
in relation to individual complaints and systemic issues
- be
accessible
- afford
procedural fairness—the actions of the ombudsman must not give rise to a
reasonable apprehension of partiality, bias, or prejudgment and
- be
accountable.[20]
According to the Energy and Water Ombudsman NSW:
... the primary function of an Ombudsman is dispute resolution
and an Ombudsman is required to be impartial to, and independent of, parties to
a dispute. Therefore I do not believe that the ASBFEO performs an Ombudsman
role within its secondary dispute resolution function or fulfils the essential
requirements of impartiality and independence.[21]
The Commonwealth Ombudsman and ANZOA agree with that
assessment.[22]
The Small Business Development Corporation added its strong opposition to the
inclusion of the term ‘Ombudsman’ to identify the role.
Traditionally an Ombudsman acts to investigate
maladministration by a public authority. It does not provide business advice
and assistance in resolving business problems that are not “dispute related”. I
am concerned that the use of the term Ombudsman may be problematic for small
business operators, particularly those with a preconceived notion of what a
“traditional” Ombudsman does.[23]
There are two consequences of the perceived misuse of the
Ombudsman title. The first is that it ‘could lead to confusion for the
particular groups for which it is being established to serve and for the wider
community’.[24]
The second is that ‘the suggested stretching of the concept of Ombudsman has
the potential to diminish the Australian public’s confidence in the role and
independence of the Ombudsman institution as a whole’.[25]
According to the Explanatory Memorandum, funding of $8
million over four years was allocated in the 2014–15 Budget for the creation
and ongoing expenses of the Ombudsman.[26]
The expenditure profile is:
|
2014–15
|
2015–16
|
2016–17
|
2017–18
|
|
$2.0m
|
$2.0m
|
$2.0m
|
$2.0m
|
Part 1 of the principal Bill contains the relevant
definitions.
In particular, for the purposes of
the principal Bill, a business is a small business at a
particular time in a financial year (the current year) if it has
fewer than 100 employees at that time; or either its revenue for the previous
financial year is $5,000,000 or less, or if there was no time in the previous
financial year when the business was carried on—its revenue for the current
year is $5,000,000 or less.[27]
Key
issue—definition of small business
Variations in existing definition
There are a number of definitions used in current
Commonwealth legislation to describe a ‘small business’. The key definition of small
business used by the Australian Bureau of Statistics (ABS) is largely
based on the number of employees, with a small business defined as an ‘actively
trading business with 0–19 employees’.[28]
Other Commonwealth statutes contain differing interpretations
of the term such as:
- Privacy
Act 1988—defines a small business as one whose annual
turnover for the previous financial year is $3 million or less[29]
- Australian
Securities and Investments Commission Act 2001—defines a small
business as a business employing fewer than 100 people if the business
is, or includes, the manufacture of goods, or a business employing fewer than
20 people otherwise,[30]
and
- Fair
Work Act 2009—defines a small business employer as an
employer with fewer than 15 employees.[31]
The definition in the Bill of family enterprise
encompasses any small business that is operated as a family enterprise.[32]
The table below indicates the number of small business in
Australia based on Australian Bureau of Statistics data.
Counts of business by employment size as at 30 June—2010
to 2014
|
|
2010
|
2011
|
2012
|
2013
|
2014
|
% change
|
% change
|
|
|
|
|
|
|
|
2013 to 2014
|
Annual average 2010 to
2014
|
|
Non-employing
|
1,303,040
|
1,306,023
|
1,306,093
|
1,264,298
|
1,273,769
|
0.7
|
-0.6
|
|
1–4 employees
|
580,177
|
581,741
|
582,719
|
563,412
|
571,176
|
1.4
|
-0.4
|
|
5–19 employees
|
189,023
|
191,812
|
198,340
|
197,412
|
199,915
|
1.3
|
1.4
|
|
Total employing small
businesses
|
769,200
|
773,553
|
781,059
|
760,824
|
771,091
|
1.3
|
0.1
|
|
Total Small business
|
2,072,240
|
2,079,576
|
2,087,152
|
2,025,122
|
2,044,860
|
1.0
|
-0.3
|
|
Total Businesses
|
2,124,650
|
2,132,412
|
2,141,280
|
2,079,666
|
2,100,162
|
1.0
|
-0.3
|
|
Small business % of all
businesses
|
97.5
|
97.5
|
97.5
|
97.4
|
97.4
|
|
|
Source: Australian Bureau of Statistics (ABS),
Counts of Australian businesses,
including entries and exits, June 2010 to June 2014, cat. no.
8165.0, ABS, Canberra, Table 13—Businesses by employment size ranges: June
2010 to June 2014, p. 21, accessed 20 July 2015.
Stakeholder comments
Some stakeholders believe that ‘this definition [in the
Bill] is appropriate’—particularly because it includes ‘those small businesses
with high numbers of casual employees, such as hotels and clubs, which would be
excluded by a lower employee threshold’.
[33]
However, the Department of Finance noted that ‘there are
already many definitions of small business used within the Australian Government
and the one proposed in the legislation is not consistent with any of the
current ones’ and that ‘yet another definition of small business will only add
to the confusion and require constant explanation of which definition is being
used’.
[34]
According to the Australian Bankers’ Association:
... the current definition is broader and inconsistent with
existing accepted definitions for example those used by the Treasury, the
Australian Taxation Office (ATO) and other government agencies within Australia
and included in financial services legislation. The broader definition has the
potential to create significant confusion and uncertainty across
administrative, operational and regulatory boundaries.[35]
Part 2—Australian Small Business
and Family Enterprise Ombudsman
Terms and conditions of appointment
The principal Bill establishes the Australian Small Business
and Family Enterprise Ombudsman (ASBFE Ombudsman).[36]
The ASBFE Ombudsman is appointed by the Governor‑General
by written instrument for a term of not more than five years. However, there is
no legal impediment to a reappointment. The Minister must be satisfied that the
person who is appointed as ASBFE Ombudsman has suitable qualifications or
experience and is of good character.[37]
Other elements of the appointment are:
- the
remuneration of the ASBFE Ombudsman is determined by the Remuneration Tribunal[38]
- the
ASBFE Ombudsman may resign his, or her, appointment by giving the Minister a
written resignation[39]
- the
Minister may terminate the appointment of the Ombudsman for a number of reasons[40]
including, but not limited to misbehaviour or for failing, without reasonable
excuse, to comply with the duty to disclose interests within the Public
Governance, Performance and Accountability Act 2013[41]
- the
ASBFE Ombudsman’s staff are persons engaged under the Public Service Act
1999[42]
and are made available by the Secretary of the Treasury[43]
and
- the
Treasury Secretary may engage consultants to assist in carrying out the
Ombudsman’s functions.[44]
Functions
Broadly speaking, the functions of the ASBFE Ombudsman are
to advocate for small businesses and family enterprises in relation to relevant
legislation, policies and practices and to give assistance in
relation to relevant actions if requested to do so.[45]
The ASBFE Ombudsman is to perform these functions in the
most convenient and effective way possible—although the principal Bill is
silent as to the matters to which the ASBFE Ombudsman may have regard in
determining what is ‘convenient and effective’.[46]
In addition he, or she, must avoid duplicating the operations of any other agency
of the Commonwealth, a state or a territory that performs an overlapping
function and work co‑operatively with other agencies of the Commonwealth,
the states and the territories.[47]
Relationship with the Minister
The Minister may, by legislative instrument, give directions
to the ASBFE Ombudsman about the performance of his, or her, functions and the
ASBFE Ombudsman must comply with those directions.[48]
Such a legislative instrument is not disallowable. In addition, the Minister
may give the ASBFE Ombudsman a direction (which must be complied with) to
provide him, or her, with specified reports about the ASBFE Ombudsman’s
functions.[49]
Part 3—advocating for small
business and family enterprises
The ASBFE
Ombudsman’s advocacy function is detailed in Part 3 of the principal Bill and comprises
a number of aspects including:
- research and inquiry undertaken on the ASBFE Ombudsman’s own
initiative
- inquiry by the ASBFE Ombudsman on a matter which is referred
by the Minister
- advice by the ASBFE Ombudsman to the Minister about the effect
of legislation, policies and practices and the way in which they might be
improved at the request of the Minister and
- review by the ASBFE Ombudsman of proposed legislation,
policies and practices to determine its effect on small businesses and
family enterprises if the proposal is carried out; and ways in which it might
be improved.
Ombudsman-initiated research and
inquiries
It is open to the ASBFE Ombudsman to conduct research or
make inquiries into the effect of certain legislation, policies and
practices on small businesses or family enterprises (or a class of
small businesses or family enterprises) and the ways in which they might be
improved.[50]
In undertaking such research or
inquiry, the ASBFE Ombudsman is empowered to serve a person with a
written notice requiring the person to provide specified information or
documents within a period of not less than 10 business days, if the ASBFE
Ombudsman reasonably believes that the person has, or could take reasonable
steps to obtain, the specified information or documents.[51]
A person who is served a notice under this section must
comply with it. A failure to do so gives rise to a maximum penalty of 30
penalty units.[52]
It is a defence that the person does not have the information or document
required and he, or she, has taken all reasonable steps available to obtain it
but has not be able to do so.[53]
Where documents are produced
in relation to Ombudsman-initiated research or inquiry the ASBFE Ombudsman may
copy the documents, take extracts from them, or keep possession of them for as
long as is necessary for the purposes of the research or inquiry to which they
relate.[54]
Reporting and publishing
The Bill sets out the reporting requirements for the ASBFE
Ombudsman in relation to an Ombudsman-initiated inquiry.[55]
The Minister is authorised to publish the ASBFE Ombudsman’s report—or any part
of that report—in any way he, or she, thinks fit.[56]
Before doing so, however, the Minister must consider whether the publication of
any of the information in the report, or a recommendation of the report would
be likely to adversely affect the interests of any person. In that case, the
Minister must direct the Ombudsman to notify the person about the relevant information
or recommendation and to give the person a reasonable period (not exceeding 30
days) to make representations, either orally or in writing, about the publication
of that material.[57]
The Minister must take those representations into account
before publishing all or part of the report. To that end the Minister may
delete any information or recommendation from the report if he, or she, is
satisfied that its publication would be likely to adversely affect the
interests of any person and the Minister reasonably believes that it is in the
public interest to do so.[58]
In addition, the Minister must delete from the report any confidential
information. For the purposes of the Bill, information is confidential
if the decision‑maker is satisfied that the disclosure of the information
in the way proposed would cause undue distress or embarrassment to a person, that
the information is commercial‑in‑confidence or that disclosure of
the information in the way proposed would be contrary to the public interest.[59]
The decision about whether information is commercial‑in‑confidence requires
a decision-maker to be satisfied about all of the following:
- the
disclosure of the information could unreasonably affect the person, or a
business or action related to the person, in an adverse manner
- the
information is not in the public domain
- the
information is not required to be disclosed under another law of the
Commonwealth, a state or a territory and
- the
information is not readily discoverable.[60]
A decision by the Minister that it is not in the public
interest to delete information or a recommendation from a report before the
report is published is subject to review by the Administrative Appeals Tribunal
(AAT).[61]
The Scrutiny of Bills Committee noted that the relevant
provision encompasses a decision which is comprised of two elements. The first
is that the information or recommendation would be ‘likely to adversely affect
the interests of any persons’. The second is that the Minister reasonably
believes that it is in the public interest to delete the information or
recommendation’. The Scrutiny of Bills Committee has sought the Minister’s
clarification as to whether both elements of this decision may be challenged in
an appeal to the AAT.[62]
At the time of writing this Bills Digest a reply from the Minister had not been
published.
Importantly, the decision by the Minister that information
is not to be treated as confidential information is also
reviewable by the AAT.[63]
Inquiries
referred by the Minister
The Minister may refer matters to the ASBFE Ombudsman for
inquiry.[64]
These matters relate to the effect of certain legislation, policies and
practices on small businesses or family enterprises (or a class of
small businesses or family enterprises) and the ways in which they might be
improved. In that case, the Minister may require the ASBFE Ombudsman to do any,
or all, of the following:
- to
hold hearings for the purposes of the inquiry
- to
submit, his or her, report to the Minister within a specified time
- to
make a draft report available to the public during an inquiry and
- to
make recommendations in relation to the matter.[65]
The ASBFE Ombudsman must comply with such a requirement
imposed by the Minister.[66]
The Bill contains the rules to be
followed by the ASBFE Ombudsman in relation to the conduct of a formal
inquiry into a matter following a referral by the Minister.[67]
In particular, the Bill sets out the requirement for persons to provide information
and documents when given a notice to do so by the ASBFE Ombudsman,[68]
the power of the ASBFE Ombudsman to summon a person to appear at a hearing and
to give evidence and/or produce documents[69]
and the requirement on a person who is a witness at a hearing to answer a
question as required by the ASBFE Ombudsman and to produce a document as
required by a summons.[70]
In each of those instances, a failure to comply with the relevant requirement
gives rise to a maximum penalty of 30 penalty units.[71]
Where the ASBFE Ombudsman is undertaking an inquiry which
has been referred by the Minister he, or she, may direct that all or part of a
hearing take place in private.[72]
However, the ASBFE Ombudsman must make available to the public the contents of
written evidence or documents which have been produced in connection with the
inquiry—provided that any confidential information has been deleted.[73]
Given the breadth of the power to conduct inquiries,
including to summon witnesses and to pay them allowances and expenses, the
annual $2 million budget which has been allocated to the ASBFE Ombudsman may
not be sufficient.
Reporting and publishing
Where the Minister has referred a matter to the ASBFE Ombudsman
for inquiry, the ASBFE Ombudsman must provide a written report to the Minister
on the matter[74]
and in most cases the Minister must table the report in each House of
Parliament within 25 sitting days after the Minister receives it. (The
Ombudsman may recommend that the tabling of the report be delayed for a specified
period—in which case the Minister must table the report within 25 days from the
end of that period.)[75]
The Bill provides for information or opinions to be deleted from the report
before it is tabled if the information or opinion would be likely to adversely
affect the interests of any person and the Minister reasonably believes that it
is in the public interest to delete the information or opinion. In addition,
the Minister must delete any confidential information from the report.[76]
Providing advice to the Minister
The third aspect of the advocacy function is that the
Minister may refer matters to the ASBFE Ombudsman for advice. Those matters relate
to the effect of certain legislation, policies and practices on
small businesses or family enterprises (or a class of small businesses or
family enterprises) and the way in which it might be improved.[77]
Any referral by the Minister may set out the period within which the advice is
to be given by the ASBFE Ombudsman[78]
and may specify any matter to which the ASBFE Ombudsman must have regard in
giving the advice.[79]
Reporting and publishing
Once the ASBFE Ombudsman has given the requested advice to
the Minister, it may be published in any way the Minister thinks fit. As with
the right to publish other material which is produced in relation to the ASBFE
Ombudsman’s advocacy function, the Bill provides that the Minister may
delete any information or opinion from the advice if it would be likely to
adversely affect the interests of any person and the Minister reasonably
believes that it is in the public interest to delete the information or opinion.
In addition, the Minister must delete any confidential information from the
advice.[80]
Other advocacy functions
Another aspect of the ASBFE Ombudsman’s advocacy function
relates to the review of a proposal for relevant legislation, policies
and practices, or to change relevant legislation, policies and
practices, to determine its effect on small businesses and family enterprises
if the proposal is carried out; and ways in which it might be improved. This
may occur either on the ASBFE Ombudsman’s own initiative or on referral by the
Minister.[81]
Reporting and publishing
Once the ASBFE Ombudsman has given the relevant advice to
the Minister, it may be published in any way the Minister thinks fit—subject to
the same rights of the Minister to delete information or opinion which would be
likely to adversely affect the interests of any person where the Minister
reasonably believes that it is in the public interest to do so and to delete any
confidential information from the advice.
Ministerial discretion not to
publish
The Law Council is critical of the provisions of the Bill
which give the Minister the discretion not to publish a report prepared by the
ASBFE Ombudsman as set out in the paragraphs above, stating that ‘it would be
more appropriate for the legislation to place an obligation on the Minister to
publish all Ombudsman reports within a reasonable period of time’.[82]
Constitutional connection
The Constitution divides legislative authority in
Australia between the federal and state governments. The Commonwealth is
responsible for making laws about the matters allocated to it in the Constitution—primarily
in sections 51 and 52—although there are other relevant sections.[83]
If the matter is not one which has been allocated to the Commonwealth under the
Constitution, then it is for the states to legislate. Currently some,
but not all, of the states have passed legislation to establish Small Business
Commissioners to assist small businesses operating within that state.[84]
The advocacy function of the ASBFE Ombudsman under the
principal Bill is linked to certain types of past, present or proposed legislation,
policies and practices which are prescribed in the principal Bill.[85]
The relevant of legislation, policies and practices are based on the following:
- the
exclusive power of the Parliament to make laws about the Commonwealth public
service: subsection 52(ii)
- the
power to make laws in respect of the territories: section 122
- the
corporations power: section 51(xx)
- the
trade or commerce power: section 51(i)
- the
insurance power: section 51(xiv)
- the
banking power: section 51(xiii)
- the
telecommunications power: section 51(v) and
- the
power to make laws about copyright, patents, designs or trade marks: section
51(xviii).[86]
Importantly, the research and inquiry powers provided to
the Ombudsman in Part 3 (as well as Part 4) of the Bill are limited so as not
to ‘impair the capacity of a state to exercise its constitutional powers’.[87]
Part 4—assisting a small business
or family enterprise
The other function of the ASBFE Ombudsman is the assistance
function. Part 4 of the principal Bill sets out the manner in which the ASBFE
Ombudsman is to respond to a request for assistance in relation to a relevant
action. The constitutional connection to relevant action
is defined in Part 4. It is based on the same constitutional powers that
underpin Part 3.
Restaurant and Catering Australia has expressed its
concern that:
... the legislated powers of the ASBFE Ombudsman will severely
restrict its ability to assist a majority of small business operators in the
hospitality industry, given that [the ASBFE Ombudsman] cannot intervene in
cases where no one party is an incorporated body.[88]
This is not quite correct. The principal Bill is framed so
that the ASBFE Ombudsman would have jurisdiction where both parties were
unincorporated, if for instance, the relevant action related to
trade and commerce and the parties were located in different states, or if one
was located in a state and the other was located in a territory. However, given
the limitations in the power of the Commonwealth to legislate under the Constitution,
it is inevitable that there may be some gaps in coverage.
The Law Council of Australia argues that as small
businesses in jurisdictions without a Small Business Commissioner may have
access to fewer protections, an option may be to amend the principal Bill to extend
the definition of relevant actions to include ‘any entity engaged
in trade or commerce within the meaning of the Competition and Consumer Act 2010’.[89]
Responding to requests for assistance
The Bill provides that any person may request assistance
from the ASBFE Ombudsman in relation to a relevant action. That
request may be made either orally or in writing.[90]
Where the request is made in writing it is a formal request.
Decision not to provide assistance
There are three circumstances in which the ASBFE Ombudsman
does not provide assistance to a person who requests it. First, the
ASBFE Ombudsman is not authorised to deal with a request for assistance
in any of the following circumstances:
- the
request for assistance does not relate to a relevant action
- the
action is taken by a Minister of the Commonwealth, or of a state or a territory
- the
action is taken by an agency of a state or a territory
- the
action is an order, direction or decision by a judge, justice or magistrate of
a federal, state or territory court or a member of a tribunal
- the
action is taken by an officer of such a court or a tribunal exercising powers
of the court or tribunal
- the
action is taken as part of proceedings of a Parliament, parliamentary
committee, or commission or inquiry under a law of the Commonwealth, or of a state
or a territory
- the
action consists of enforcement of a judgment or order of a court or tribunal.[91]
Second, the ASBFE Ombudsman may decide not
to give assistance in response to a request where, for instance, he, or she, reasonably
believes that the request is frivolous or vexatious or is not made in good
faith.[92]
In any event, where the request for assistance was a formal request,
the ASBFE Ombudsman must give the person making the request a notice in writing
setting out the reasons for not providing the requested assistance.[93]
Third, the ASBFE Ombudsman must not give
assistance in response to a request, or in relation to an aspect of a request if
he, or she, reasonably believes that the request for assistance could have been
made to another agency of the Commonwealth, a state or a territory which could
have more conveniently or effectively dealt with it—and that agency has the
legal power to deal with the request.[94]
In order to make that decision, the ASBFE Ombudsman must
consult with the other agency. Having decided that the other agency could have
more conveniently or effectively dealt with the request for assistance, the
ASBFE Ombudsman must transfer the request (along with any information and
documents relating to the request) to that agency as soon as is reasonably
practicable.[95]
The ASBFE Ombudsman must also notify the person who made the request that it
has been transferred.
The effect of the transfer is that the request is taken to
have been made to the other agency under the law of the Commonwealth, state or territory
under which the other agency operates and to have complied with any manner and
form requirements for lodging a request for assistance with that agency.[96]
This, then, is the basis for the ‘concierge role’ to which
the Minister for Small Business has referred.[97]
It may be a source of frustration or confusion for some persons whose request
for assistance is passed on to another body. Speaking about the Bills, Labor MP
Bernie Ripoll drew attention to this potential problem stating:
The last thing a small business would
want when it has sought assistance from the Ombudsman on a matter between the
small business and another Commonwealth agency is for the matter to be simply
referred on to another government agency and not dealt with effectively or
resolved. There is a view that this could compromise the independence and
impartiality of the office of the Small Business and Family Enterprise
Ombudsman as a true advocate for small business. Labor would seek clarification
on this from the Minister.[98]
The Law Council of Australia acknowledges that the ASBFE Ombudsman
should have a broad discretion to decide which complaints it will attempt to
resolve. However, it argues that complaints from trade associations and other
small business associations should be handled by the Ombudsman in all but
exceptional circumstances. The rationale for this view is that small business
complaints which have been referred by a trade association and small business
association are likely to raise more serious and wide-ranging issues.
To that end the Law Council of Australia:
... believes that the Bill should be amended to state that the
Ombudsman has an obligation to deal with all complaints made to it by trade
associations and small business associations ... unless the trade association or
small business association agrees that a referral is appropriate.[99]
Arrangements with other agencies
In order to facilitate the process of transferring a
request for assistance to another agency, the ASBFE Ombudsman may enter into an
arrangement with the other agency.[100]
The Law Council of Australia considers that this ‘should be by way of Memoranda
of Understanding with relevant regulators to formalise the referral process
[and they] should include a timeframe for the regulator to assess and respond
to the referral’.[101]
Small Business Commissioners from some states have expressed
their concern about the ‘potential for overlap and confusion between the
function of the Ombudsman and the State-based Small Business Commissioners’.[102]
In particular the Small Business Commissioner for South Australia (SASBC) recommends
that:
... the Bill be amended to prevent such overlap and clearly
distinguish between the functions of these bodies. Alternatively, at the least
a Memorandum of Understanding should be developed between the Ombudsman and
SASBC at a very early stage to ensure clarity for small business and this
should be referenced in the Bill.[103]
Similarly the Small Business Commissioner for Western
Australia considers that there is a ‘need for further clarification in relation
to areas of clear State responsibility, especially regarding retail lease
enquiries and disputes’ and that the Bill should explicitly name those classes
of disputes which are the jurisdiction of the Small Business Commissioners.[104]
Assisting in a dispute
Where a person requests assistance in a dispute in
relation to a relevant action, the ASBFE Ombudsman may make
recommendations about how the dispute may be managed, including that the parties
to the dispute should take part in an alternative dispute resolution process.[105]
To that end, the ASBFE Ombudsman may recommend that the alternative dispute
resolution process be conducted by one or more of a group of persons who are
drawn from the list of providers which he, or she, has published.[106]
There is no power in the Bill for the ASBFE Ombudsman, a delegate or person
assisting him, or her, to conduct the alternative dispute resolution process.[107]
The ASBFE Ombudsman must not recommend a group of
alternative dispute resolution providers unless he, or she, has a reasonable belief
that those providers are best suited to assist the parties in the dispute
having regard to:
- the
qualifications and experience of the providers
- the
convenience of the parties in accessing assistance by the providers and
- the
cost to the parties in accessing assistance by the providers.[108]
Stakeholder comments
The submission by Independent Contractors Australia to the
Senate Committee sums up the position of small business as follows:
In contractual undertakings between small business people and
large businesses or government entities there is an imbalance of power. This
occurs for a simple reason—namely, that in a dispute the small businessperson
generally cannot afford the legal expense of asserting his or her commercial
contractual rights. That is, no matter what the rights or wrongs of a situation
may be, the larger party can win because it can afford to apply legal muscle
where the small businessperson cannot.[109]
In this context, Independent Contractors Australia has
noted that the Bill does not guarantee low-cost mediation and that this
compares poorly with the mediation services offered by Small Business
Commissioners in the states.[110]
The Australian Motor Industry Federation echoed the need for ‘time and cost
efficient’ mediation that recognises the ‘potential disparity between parties’,
citing the example of a small business that recently ‘had to endure 1.5 years
and $80,000 in legal costs before arriving at an outcome’.[111]
Warning to parties to the dispute
Where the ASBFE Ombudsman recommends an alternative
dispute resolution process he, or she, must give a written notice to the
parties to the dispute to that effect. That notice must include a warning that should
the parties fail to undertake an alternative dispute resolution process, or
withdraw from the process, the ASBFE Ombudsman may publicise that fact.[112]
According to the Explanatory Memorandum ‘the “name and shame” powers were
considered to provide the right balance to encourage parties to participate in
the process, but not so punitive that small businesses would be discouraged
approach the Ombudsman’.[113]
Gathering information about
requests for assistance
The Bill empowers the ASBFE Ombudsman to make inquiries for
the purpose of carrying out the assistance function under Part 4.[114]
To that end, the ASBFE Ombudsman has powers, equivalent to those in Part 3 of
the principal Bill to serve a person with a written notice requiring the person
to provide specified information or documents within a period of not less than ten
business days, if the ASBFE Ombudsman reasonably believes that the person has,
or could take reasonable steps to obtain, the specified information or
documents.[115]
A person who is served with a notice under this section
must comply with it. A failure to do gives rise to a maximum penalty of 30
penalty units.[116]
However, a person is not liable for the penalty if the person does not have the
information or document required and he, or she, has taken all reasonable steps
available to obtain it but has not be able to do so.[117]
Where documents are produced or given to the
ASBFE Ombudsman in response to the written notice he, or she, may copy the
documents, take extracts from them, or keep possession of them for as long as
is necessary for the purposes of the inquiry to which they relate.[118]
Part 5—General requirements
Secrecy
Part 5 of the Bill contains provisions which relate to
secrecy and the disclosure of protected information in certain
circumstances.[119]
For the purposes of the Bill, protected information is information
that is disclosed to, or obtained by, a person in his or her capacity as a person
assisting small business/family enterprise and relates to the affairs
of a person (other than a person assisting small business/family enterprise).[120]
A person commits an offence if protected information has
been disclosed to, or obtained by, the person in his or her capacity as a person
assisting small business/family enterprise and the person discloses the
information to another person or uses the information. The maximum penalty for
the offence is imprisonment for two years or 120 penalty units, or both.[121]
The Bill sets out two exceptions to the prohibition. The first
exception is where the disclosure or use is authorised by a provision of the Australian
Small Business and Family Enterprise Ombudsman Act or a legislative
instrument under it. The second exception is where the disclosure or use
is in compliance with a requirement under a law of the Commonwealth, of a state
or of a territory.[122]
Schedule 1
Schedule 1 to the Consequential and Transitional Bill will
commence immediately after the commencement of sections 3–96 of the Australian
Small Business and Family Enterprise Ombudsman Act 2015.
Functions of the Commonwealth
Ombudsman
The function of the Commonwealth Ombudsman is to:
... investigate complaints about the
administrative actions of Australian Government departments and agencies. The
Ombudsman has special responsibilities for complaints relating to the
Australian Defence Force, Australian Federal Police, Freedom of Information,
Immigration and Postal Industry...[In particular], the Ombudsman can
investigate complaints about the actions and decisions of Australian Government
agencies to see if they are wrong, unjust, unlawful, discriminatory or just
plain unfair. He can also investigate complaints about goods and services
delivered by contractors for and on behalf of the Australian Government.[123]
Consequential and Transitional Bill
The Consequential and Transitional Bill amends the Ombudsman
Act by inserting proposed section 6E into the Ombudsman Act to
deal with the transfer of complaints to the ASBFE Ombudsman.
The amendment operates so that:
- the
Commonwealth Ombudsman may decide not to investigate a complaint and transfer
it to the ASBFE Ombudsman if the complaint could have been made to the ASBFE Ombudsman
who could more conveniently or effectively deal with the complaint and has the power
to deal with it[124]
- before
deciding to transfer the complaint the Commonwealth Ombudsman must consult with
the ASBFE Ombudsman about whether it would be more convenient or effective for
the ASBFE Ombudsman to deal with it (or deal with complaints within a
particular class of complaints)[125]
- if
the Commonwealth Ombudsman decides to transfer the complaint to the ASBFE
Ombudsman, this must be done as soon as is reasonably practicable, and any relevant
information or documents must also be transferred[126]
- a
complaint that has been transferred is treated as if it were made under the Australian
Small Business and Family Enterprise Ombudsman Act on the day of the
transfer.[127]
According to the Commonwealth Ombudsman there will need to
be ‘close co-operation between the two offices to ensure duplication is avoided
and small businesses receive seamless services’.[128]
The Bill establishes the ASBFE Ombudsman who is authorised
to carry out advocacy and assistance functions.
The advocacy function as set out in the principal Bill
will position the ASBFE Ombudsman to undertake wide‑ranging inquiries
into the way in which legislation, policies and practices affect small business
and family enterprises. That will position the ASBFE Ombudsman to provide the
Minister with high quality, contemporaneous advice about those effects and ways
in which to improve them. However, the principal Bill gives the Minister a
discretion to decide whether to publish the ASBFE Ombudsman’s reports in whole
or in part. That being the case, the benefit of the ASBFE Ombudsman’s inquiries
may not be made public at all.
The ASBFE Ombudsman’s assistance function comprises two
part—a concierge role and an outsourced alternative dispute resolution service.
Many of the submissions in relation to the Bill are
critical of the use of the term Ombudsman to describe the role. It appears that
the ASBFE Ombudsman as established by the principal Bill will not have the
requisite independence that would generally be expected of such a position.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Ombudsman Act
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[2]. B
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[3]. B
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[4]. Treasury,
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[5]. B
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[6]. Treasury,
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[7]. Details
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[8]. Standing
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[9]. Parliamentary
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[10]. The
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[11]. B
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[12]. B
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[13]. B
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[14]. Parliament
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[15]. P
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[16]. P
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[17]. Treasury,
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[18]. Australian
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[19]. Australian
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[20]. Commonwealth
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[21]. Energy
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[22]. Commonwealth
Ombudsman, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
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Australian and New Zealand Ombudsman Association, Submission
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Australian Small Business and Family Enterprise Bill 2015, 15 July
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[23]. Small
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to the Legal and Constitutional Affairs Committee, Inquiry into the
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[24]. LEADR
and IAMA, Submission
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[25]. Commonwealth
Ombudsman, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
Australian Small Business and Family Enterprise Bill 2015, op. cit.
[26]. Explanatory
Memorandum, Australian
Small Business and Family Enterprise Ombudsman Bill 2015 [and] Australian Small
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[27]. Clause
5 of the Australian Small Business and Family Enterprise Ombudsman Bill
2015.
[28]. Australian
Bureau of Statistics (ABS), Small business in
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31 July 2015.
[29]. Privacy Act 1988,
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[30]. Australian Securities
and Investments Commission Act 2001, subsection 12BC(2), accessed 31
July 2015.
[31]. Fair Work Act 2009,
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[32]. Clause
6 of the Australian Small Business and Family Enterprise Ombudsman Bill
2015.
[33]. Law
Council of Australia (Business Law Section), Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, 10 April 2015, p. 2. The Motor Trades Association of
Queensland also supported the definition. Motor Trades Association of
Queensland, Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
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[34]. Department
of Finance (Procurement Policy Branch, Technology and Procurement Division), Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
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[35]. Australian
Bankers’ Association, Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
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2015.
[36]. Clause
12 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[37]. Clause
24 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[38]. Subclause
25(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[39]. Subclause
28(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[40]. Clause
30 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[41]. Public
Governance, Performance and Accountability Act 2013, accessed 17 July
2015.
[42]. Public Service
Act 1999, accessed 17 July 2015.
[43]. Clause
33 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[44]. Clause
34 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[45]. Clause
13 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[46]. Paragraph
16(a) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[47]. Clause
8 of the Australian Small Business and Family Enterprise Ombudsman Bill
provides a formal definition of the term agency of the
Commonwealth, a state or a territory.
[48]. Clause
20 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[49]. Clause
21 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[50]. Clause
36 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[51]. Under
section 28A of the Acts
Interpretation Act 1901, the terms ‘serve’, ‘give’ and ‘send’ have the
same meaning.
[52]. Under
section 4AA of the Crimes Act
1914 a penalty unit is equivalent to $180 with effect from 31 July
2015. This means that the maximum penalty is $5,400.
[53]. Subclause
37(5) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[54]. Clause
38 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[55]. Clause
40 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[56]. Subclause
41(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[57]. Subclause
41(2) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[58]. Subclause
41(3) of the Australian Small Business and Family Enterprise Ombudsman
Bill. Note that under clause 92 of the Australian Small Business and
Family Enterprise Ombudsman Bill a decision that it is not in the public
interest to delete information or a recommendation from a report before the
report is published is subject to review by the Administrative Appeals
Tribunal.
[59]. Subclause
9(1) of the Australian Small Business and Family Enterprise Ombudsman Bill.
Note that clause 92 of the Australian Small Business and Family
Enterprise Ombudsman Bill provides that a decision that information is not to
be treated as confidential information is subject to review by
the Administrative Appeals Tribunal.
[60]. Subclause
9(2) of the Australian Small Business and Family Enterprise Ombudsman Bill.
[61]. Paragraph
92(b) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[62]. Standing
Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, op. cit., p. 12.
[63]. Paragraph
92(a) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[64]. Subclause
42(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[65]. Subclause
42(2) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[66]. Subclause
42(3) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[67]. Clauses
43–54 of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[68]. Clause
47 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[69]. Clause
48 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[70]. Clause
49 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[71]. Subclauses
47(4), 48(2) and 49(1) of the Australian Small Business and Family
Enterprise Ombudsman Bill.
[72]. Subclause
46(2) and clause 52 of the Australian Small Business and Family
Enterprise Ombudsman Bill.
[73]. Clause
53 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[74]. Clause
55 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[75]. Subclause
56(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[76]. Clause
56 of the Australian Small Business and Family Enterprise Ombudsman Bill.
Note that clause 92 of the Australian Small Business and Family
Enterprise Ombudsman Bill provides that a decision that it is not in the public
interest to delete information or a recommendation from a report before the
report is tabled is subject to review by the Administrative Appeals Tribunal.
[77]. Subclause
57(1) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[78]. Paragraph
57(2)(b) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[79]. Paragraph
57(2)(c) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[80]. Subclause
58(3) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[81]. Subclauses
62(1) and (2) of the Australian Small Business and Family Enterprise
Ombudsman Bill.
[82]. Law
Council of Australia, Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, 10 April 2015, p. 3, accessed 29 July 2015.
[83]. Commonwealth of
Australia Constitution Act, accessed 17 July 2015.
[84]. For
example: Small
Business Commissioner Act 2013 (NSW); Small
Business Commissioner Act 2003 (Vic); Small
Business Commissioner Act 2011 (SA).
[85]. Clause
35 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[86]. The
combination of powers listed ‘plus the Constitution’s nationhood power provide
the necessary connection between the Ombudsman’s functions and the
Constitution. Explanatory Memorandum, Australian
Small Business and Family Enterprise Ombudsman Bill 2015 [and] Australian Small
Business and Family Enterprise Ombudsman (Consequential and Transitional
Provisions) Bill 2015, p. 13. A ‘nationhood’ power is not explicitly
referred to in the text of the Constitution, nor is it obviously
apparent in its structure. Rather in Attorney-General
(Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237 (the Pharmaceutical
Benefits case) both Dixon and Starke JJ referred to the ‘nationhood power’ as a
determinant of the extent of Commonwealth appropriation and spending power by
articulating the powers under sections 81, 83, 61 and 51(xxxix) of the Constitution.
Source: J Steffanoni, Constitutional
interpretation: the nationhood power of the Executive, accessed
23 July 2015.
[87]. Clauses
39, 54 and 78 of the Australian Small Business and Family Enterprise
Ombudsman Bill.
[88]. Restaurant
and Catering Australia, Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, 7 April 2015, p. 2, accessed 31 July 2015.
[89]. Law
Council of Australia (Business Law Section), Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, op. cit., p. 4.
[90]. Clause
66 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[91]. Subclause
67(2) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[92]. Paragraph
68(1)(b) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[93]. Subclauses
67(3) and 68(2) of the Australian Small Business and Family Enterprise
Ombudsman Bill.
[94]. Subclauses
69(1) and (2) of the Australian Small Business and Family Enterprise
Ombudsman Bill.
[95]. Subclauses
69(4) and (5) of the Australian Small Business and Family Enterprise
Ombudsman Bill.
[96]. Subclause
69(7) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[97]. B
Billson (Minister for Small Business), ‘Second
reading speech: Australian Small Business and Family Enterprise Ombudsman Bill
2015’, House of Representatives, Debates, 3 June 2015, p. 5630,
accessed 31 July 2015.
[98]. B
Ripoll, ‘Second
reading speech: Australian Small Business and Family Enterprise Ombudsman Bill
2015’, op. cit.
[99]. Law
Council of Australia (Business Law Section), Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, op. cit., p. 4.
[100]. Clause
70 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[101]. Law
Council of Australia (Business Law Section), Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, op. cit., p. 5.
[102]. Small
Business Commissioner South Australia, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
Australian Small Business and Family Enterprise Ombudsman Bill 2015, 7
July 2015, accessed 20 July 2015.
[103]. Ibid.
[104]. Small
Business Development Corporation, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
Australian Small Business and Family Enterprise Ombudsman Bill 2015, 10
April 2015, p. 2, accessed 29 July 2015.
[105]. Subclause
71(1) and paragraph 71(2)(a) of the Australian Small Business and Family
Enterprise Ombudsman Bill.
[106]. Paragraph
71(2)(b) and clause 72 of the Australian Small Business and Family
Enterprise Ombudsman Bill.
[107]. Subclause
73(2) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[108]. Subclause
71(3) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[109]. Independent
Contractors Australia, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
Australian Small Business and Family Enterprise Ombudsman Bill 2015, 16
July 2015, p. 1, accessed 29 July 2015.
[110]. Ibid.,
pp. 3, 5.
[111]. Australian
Motor Industry Federation, Submission
to Treasury, Australian Small Business and Family Enterprise Ombudsman Bill:
Exposure Draft, 10 April 2015, p. 2, accessed 31 July 2015.
[112]. Subclause
71(5) and clause 74 of the Australian Small Business and Family Enterprise
Ombudsman Bill. Note that clause 92 of the Australian Small Business and
Family Enterprise Ombudsman Bill provides that a decision to publicise that a
party to a dispute has refused to engage in, or has withdrawn from, an
alternative dispute resolution process is subject to review by the
Administrative Appeals Tribunal.
[113]. Explanatory
Memorandum, Australian
Small Business and Family Enterprise Ombudsman Bill 2015 [and] Australian Small
Business and Family Enterprise Ombudsman (Consequential and Transitional
Provisions) Bill 2015, p. 73.
[114]. Clause
75 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[115]. Clause
76 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[116]. Under
section 4AA of the Crimes Act 1914
a penalty unit is equivalent to $180 with effect from 31 July 2015. This means
that the maximum penalty is $5,400.
[117]. Subclause
76(5) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[118]. Clause
77 of the Australian Small Business and Family Enterprise Ombudsman Bill.
[119]. Clauses
80–91 of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[120]. Clause
81 of the Australian Small Business and Family Enterprise Ombudsman Bill
defines a person assisting small business/family enterprise as
each of the Ombudsman, a delegate of the Ombudsman, a person assisting the
Ombudsman (clause 33), a person engaged as a consultant (clause 34),
and a person providing an alternative dispute resolution process in connection
with a dispute in relation to a relevant action.
[121]. This
means that the maximum amount of the penalty is $21,600 with effect from 31
July 2015.
[122]. Subclause
82(2) of the Australian Small Business and Family Enterprise Ombudsman
Bill.
[123]. Commonwealth
Ombudsman (CO), ‘Complaints
the Ombudsman can investigate’, CO website,
accessed 30 July 2015.
[124]. Ombudsman Act
1976 , proposed subsection 6E(1).
[125]. Ombudsman
Act, proposed subsection 6E(2).
[126]. Ombudsman
Act, proposed subsection 6E(3).
[127]. Ombudsman
Act, proposed subsection 6E(4).
[128]. Commonwealth
Ombudsman, Submission
to the Legal and Constitutional Affairs Committee, Inquiry into the
Australian Small Business and Family Enterprise Bill 2015, op. cit.
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