Chapter 1


Chapter 1

Introduction

1.1        On 28 February 2013, the Senate referred the Small Business Commissioner Bill 2013 to the Senate Economics Legislation Committee for inquiry and report by 15 May 2013.[1]

1.2        The bill proposes that an Office of the Small Business Commissioner be established as a statutory agency. Included in the bill is a provision that would cause the recently appointed Australian Small Business Commissioner, who is not a statutory office holder, to take up the new position. In the second reading speech made when introducing the private senator's bill, the following explanation of the bill's intent was provided:

The Small Business Commissioner Bill 2013 ensures that the roles and responsibilities of the Federal Small Business Commissioner are set out in legislation. It also provides teeth to the Commissioner to ensure he or she can effectively carry out their role as an advocate and representative of small business.

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. This bill provides the necessary capacity to move beyond the symbolism.[2]

1.3        The bill sets out the roles and responsibilities of the proposed agency, which include:

  • receiving and investigating complaints from small businesses about their commercial arrangements with Commonwealth departments, statutory agencies and executive agencies, and taking action to facilitate the fair treatment of small business in these arrangements;
  • subject to constitutional constraints, facilitating dispute resolution between larger businesses and small businesses; and
  • various monitoring, research and reporting functions.

Conduct of the inquiry

1.4        The committee advertised the inquiry on its website and in The Australian.  It also wrote to relevant stakeholders and interested parties inviting submissions. The committee received 11 submissions, which are listed in Appendix 1.

1.5        The committee thanks all of the organisations that provided a submission to this inquiry.

Consideration of the bill by other committees

Senate Scrutiny of Bills Committee

1.6        The Senate Standing Committee for the Scrutiny of Bills assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, and on parliamentary propriety. The Scrutiny of Bills Committee considered the bill in its third Alert Digest of 2013. That committee raised a number of concerns, including:

  • the 'poor' nature of the explanatory memorandum and inadequate statement of compatibility, which that committee considered were 'inadequate to enable a proper consideration of the bill';
  • that certain administrative powers were insufficiently defined—in particular, the committee highlighted the potential breadth of the proposed powers and the approach taken to delegation; and
  • that the proposed information gathering powers may unduly trespass on various personal rights and liberties, and that further trespasses may occur in relation to privacy as a result of the proposed information sharing arrangements with other agencies.[3]

1.7        Issues with the drafting of the proposed administrative powers, information gathering powers and information sharing arrangements have also been identified by this committee, and are discussed further in Chapter 3.

Parliamentary Joint Committee on Human Rights

1.8        One of the functions of the Parliamentary Joint Committee on Human Rights is to examine bills for compatibility with human rights, and to report to both Houses of the Parliament on that issue.[4] The Human Rights Committee considered the bill in its third report of 2013. As at 13 March 2013, it is seeking clarification about the operation of the proposed information gathering powers, an issue discussed further in chapter 3. That committee also concluded that it 'is satisfied that while the bill engages the right to work and the right to privacy, any limitation on those rights appears to be reasonable and proportionate'.[5]

Structure of the report

1.9        This report is comprised of four chapters:

  • Chapter 2 provides an overview of the types of disputes that small businesses encounter and the means available for the disputes to be resolved. The chapter has a particular focus on the roles performed by the state small business commissioners and the newly‑established Australian Small Business Commissioner. The chapter also canvasses the views the committee received in evidence on the need or desirability of the Australian Small Business Commissioner heading a statutory agency with functions and powers outlined in legislation.
  • Chapter 3 examines the provisions contained in the bill in detail.
  • Chapter 4 contains the committee's views and recommendations on the bill.

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