Chapter 3

Provisions of the bill

3.1 The bill is divided into two parts. Part 1 deals with procedural matters such as when the bill will commence and contains relevant definitions. Part 2 contains the measures that would establish the Office of the Small Business Commissioner and which outline the proposed functions, powers and obligations that the Commissioner would have. This chapter examines in detail the provisions contained in the bill.

Definition of small business

3.2 In reviewing the bill and before discussing the functions and powers that a statutory Office of the Small Business Commissioner would have, it is helpful to first consider what a small business is.

3.3 The bill utilises a definition of small business that includes businesses with 19 or fewer employees.[1] This is consistent with the definition adopted by the ABS and, consequently, a definition that is widely used when discussing small businesses. However, it is certainly not the only definition of small business that is currently used for policy or regulatory purposes across the Commonwealth, state and territories. Even when considering just the definitions used within the Commonwealth's jurisdiction it is evident that a number of different definitions are used—a notable alternative to the ABS definition being the $2 million turnover threshold used for taxation law. Table 3.1 provides some examples of the various definitions used at the Commonwealth level to identify small businesses that were recently compiled by the Productivity Commission.

Table 3.1: Examples of small business definitions used by Commonwealth agencies

Metric	Threshold	Institution/legislation	Purpose
Employees	< 15	Fair Work Australia	Unfair dismissal laws
	< 20	Australian Bureau of Statistics	Business surveys
	< 20	Reserve Bank of Australia	Business liaison
	< 50*	Australian Securities and Investments Commission	Annual financial reports
	< 100	Workplace Gender Equality Act 2012	Equal opportunity laws
Legal structure	Unincorporated	Reserve Bank of Australia	Analysis of financing conditions
Revenue	< $2 million	Australian Taxation Office	Taxation laws
	< $3 million	Privacy Act 1988	Privacy laws
Assets	< $50 million	Australian Prudential Regulation Authority	Prudential supervision
Individual loan size	< $1 million	Australian Prudential Regulation Authority	Prudential supervision
	< $2 million	Reserve Bank of Australia	Analysis of financing conditions

* Used in conjunction with thresholds on assets and revenues.

Source: Productivity Commission, Issues paper: Regulator engagement with small business, January 2013, p. 4.

3.4 Whether the existence and use of multiple definitions of small business is ideal is an issue that is currently being considered. The Council of Australian Governments' (COAG) Business Regulation and Competition Working Group agreed that the Productivity Commission should undertake a research study on regulator engagement with small business. The terms of reference subsequently issued by the Australian government to the Productivity Commission in December 2012 noted that the Commission would need to consider and determine a definition of small business (noting that the Commission may wish to consider whether there would be benefit in broader adoption of the ABS definition).[2] The Productivity Commission has indicated that it will issue a draft report in June 2013, with its final report due in September 2013.

3.5 The TIO advised that when it determines for its purposes whether a business should be considered to be a small business, it considers criteria including the number of employees, turnover, the nature of the business (such as the degree of bargaining power it is likely to have), the business structure and the issue in dispute.[3] The TIO suggested that the bill should similarly adopt 'a more flexible approach to the definition of small business', as the definition in the bill 'may prove unnecessarily restrictive and could impede the Small Business Commissioner'. The TIO explained:

Our view is that the definition of a small business should depend on whether the business has the resources necessary to pursue a grievance through the formal legal system. Where the business does not have these resources, it may require access to the Small Business Commissioner to facilitate fair treatment in its commercial arrangements with the Commonwealth or with other businesses.

In our view, while the number of employees is an indicator of the resources available to a business, it is not determinative. For example, an agricultural business might have a small number of permanent employees but a large number of seasonal employees. If its total number of employees is more than 19, the Bill in its current form would not allow the Small Business Commissioner to assist this business. This would be the case even though this business may not have sufficient resources to pursue a grievance through the formal legal system.[4]

3.6 The Law Council noted that the legislation which establishes the state small business commissioners as statutory agencies (or in the case of New South Wales, the bill that proposes to establish a statutory office) do not define what a small business is.[5]

3.7 The current Australian Small Business Commissioner has indicated that, for the purposes of their role, they do not consider that the definition of small business is particularly essential. On the contrary, Mr Brennan indicated that a prescriptive definition could have implications for the work of the office and could ultimately be counterproductive:

... I have mentioned before that I am into substance rather than technicality, and I would not want my office wasting a couple of days trying to determine whether a matter that came in was brought in by somebody who had fewer than 20 employees, for example. If it is a matter which goes to the substance of an issue which affects the business community, and a resolution of that might enhance the business community for small businesses, I will take it on. So I do not care whether it is brought to me by big business, academia, media or whatever.[6]

3.8 However, the Australian Small Business Commissioner did indicate to the Productivity Commission that 'if pressed to adopt a particular definition', they would prefer adoption of the ABS definition as it has 'the advantage of popularity'. The Small Business Commissioner did add that some clarity around the ABS definition could be beneficial, such as whether casual or part time employees are included and over what period of time the 0–19 employee threshold is to be calculated.[7]

Structure of the agency

3.9 Clause 5 contains the provisions that would establish the Office of the Small Business Commissioner as a statutory agency with the Commissioner as the head of that agency. The agency also includes staff which, under clause 25, must be engaged under the Public Service Act 1999.

3.10 It is proposed that the Commissioner will be appointed by the Governor‑General on a full-time basis for a term of up to five years.[8] The first Commissioner, however, will be the 'individual known as the Federal Small Business Commissioner at the date this Act receives the Royal Assent', whose appointment will be subject to any terms and conditions stipulated in the instrument of appointment.[9]

3.11 The bill contains a number of other routine clauses regarding the terms and conditions of appointment for the agency head, the drafting of which largely mirror those found in other comparable legislation. Matters addressed by these clauses include restrictions on paid outside employment (unless the Minister gives their approval), remuneration (to be determined by the Remuneration Tribunal), resignation and termination of appointment, acting appointments, the disclosure of interests to the Minister, engaging consultants and delegation of the Commissioner's functions (all of which may be delegated with the exception of preparing the annual report).

Overview of functions and powers

3.12 The functions and powers of the Commissioner are outlined in clause 7 and expanded on in clauses 8 to 13. The proposed functions and/or powers relate to:

Dispute resolution (clause 8), namely to:
- receive, investigate and, where appropriate, facilitate the resolution of, complaints from small businesses about their commercial arrangements with 'Departments, Statutory Agencies and Executive Agencies of the Commonwealth';
- undertake any action appropriate for the purpose of facilitating the fair treatment of small business in their commercial arrangements with Commonwealth departments and agencies;
- undertake, subject to constitutional limits,[10] 'any action that is appropriate for the purpose of facilitating the fair treatment of small businesses in their commercial arrangements with other businesses'; and
- enter into agreement with state and territory small business commissioners or departments of fair trading to 'allow the Commissioner to provide advice and assistance in respect of any dispute that has national ramifications'.
Reporting (clause 9), namely to:
- monitor, investigate and report to the Minister about market practices that may adversely impact small businesses;
- report to the Minister on any matter about small businesses for which the Minister has asked the Commissioner to prepare a report or any matter arising in respect of the functions of the Commissioner; and
- present an annual report to the Minister.
Research and publication (clause 10), namely to:
- prepare and publish information for small business about entering into commercial arrangements with Commonwealth departments and agencies; and
- undertake research about small business.
Information gathering (clause 13): the bill proposes that the Commissioner be given the power to obtain information and documents, and to require the giving of evidence in person. These proposed powers are discussed further below.
Sharing information (clause 11): the Commissioner would be permitted to share information obtained in exercise of their functions or powers with the ACCC and ASIC.[11]

Scope of the proposed dispute resolution functions and powers

3.13 Proposed paragraphs 8(1)(c) and (d) would enable the Commissioner to undertake any action appropriate for the purpose of facilitating the fair treatment of small business in their commercial arrangements with Commonwealth departments and agencies, and, subject to constitutional constraints, to undertake any action that is appropriate for the purpose of facilitating the fair treatment of small businesses in their commercial arrangements with other businesses. The use of the words 'undertake any action appropriate' appear to provide the Commissioner with significant flexibility in taking action that they consider appropriate to perform or exercise their dispute resolution functions and powers. As the Senate Standing Committee for the Scrutiny of Bills noted:

These are broadly framed powers yet neither the limits of the powers nor the criteria for their exercise are specified. Regrettably, the explanatory memorandum merely repeats the text of these provisions without explaining their intended operation or why such broadly framed powers are necessary or appropriate.[12]

3.14 As at 13 March 2013, the Scrutiny of Bills Committee was requesting further information about these proposed powers from the senator who introduced the bill.

3.15 The scope of the proposed dispute resolution powers was also an issue discussed in submissions received by this committee. The Queensland Law Society indicated its support for the dispute resolution powers as they are currently drafted.[13] However, while supportive of the proposed functions and powers as they relate to disputes between small businesses and other businesses, the Law Council of Australia questioned the approach taken to interactions between small businesses and Commonwealth agencies. The Law Council recommended that the Australian Small Business Commissioner should:

have specific jurisdiction to deal with complaints from small business about the way in which Commonwealth Government agencies deal or interact with small businesses irrespective of the existence of a contractual relationship.[14] (emphasis added)

3.16 The Law Council added that the Commissioner should be given the role of conducting post-implementation regulatory impact assessments of the impact of new legislation on small businesses,[15] and that the Commissioner could receive submissions from small businesses about the negative impacts that new legislation may be having. The Law Council reasoned that the current process of assessing the likely impact before the legislation is enacted and implemented 'involves a high degree of crystal ball gazing'.[16] To support its argument, the Law Council noted an example where the New South Wales Small Business Commissioner successfully lobbied the ACCC about certain labelling requirements under the Australian Consumer Law.[17]

3.17 The TIO noted the potential for overlap between the proposed Australian Small Business Commissioner's powers and existing external dispute resolution schemes (such as the TIO). The TIO suggested that this could result in:

inefficiencies as, among other things, specialised schemes are likely to be more experienced and better placed to consider the dispute;
confusion among small businesses as to which organisation they should approach; and
forum shopping, as small businesses may have an incentive to choose the dispute resolution scheme they consider will achieve the most favourable result.

3.18 On the risk of forum shopping, the TIO argued that it 'could result in different small businesses, with similar disputes, achieving different results, merely because of the forum in which they chose to resolve their dispute'. The TIO added:

This would likely lead to the other party raising objections about the appropriateness of the forum that is selected by the small business to resolve the dispute—which may also unduly delay the effective resolution of the dispute.[18]

3.19 While the TIO noted situations where it may be desirable for the Small Business Commissioner to consider disputes that also fall within the jurisdiction of other schemes,[19] it suggested that the bill should clearly provide for the Commissioner to refer disputes to relevant external dispute resolution schemes where it is appropriate to do so.[20]

3.20 Other submissions envisaged a statutory office with further powers. The South Australian Small Business Commissioner noted that, in their experience, a commissioner needs to have the statutory power to enforce mandatory industry codes of conduct, 'given that such mandatory codes can be a cost effective and targeted way to deal with business to business disputes'.[21]

3.21 While it welcomes the bill, wholesale supplier of groceries SPAR Australia recommended that the Small Business Commissioner be given the power to refer matters to the ACCC and that the ACCC be required to investigate such referrals. SPAR suggested that, in particular, these referrals would include instances where the Small Business Commissioner has identified 'market abuse or anti-competitive behaviour in regards to a commercial arrangement of a small business in its dealings with a larger business that can bring undue influence to the arrangement by virtue of its size and market power'.[22]

Information gathering powers

3.22 Clause 13 proposes to give the Small Business Commissioner the power to:

compel the giving of information in writing and the production of documents relevant to a matter being inquired into by the Commissioner;[23] and
issue a notice requiring a person to appear before the Commissioner to answer questions relevant to the matter under inquiry.[24]

3.23 The exercise of these powers will be possible where the Commissioner has reason to believe that a person is capable of giving relevant information or producing relevant documents. For notices that require evidence to be given in person, the Commissioner will also be able to administer an oath or affirmation that the evidence the person will give will be true.

3.24 In addition to examining the proposed information gathering powers on their own merit, this report also compares the proposed regime with others already in place. While many agencies have coercive information gathering powers, the information gathering powers available to the Inspector‑General of Intelligence and Security (IGIS) and the ACCC[25] provide some useful guidance. Although not entirely the case, the clauses in the bill are broadly similar to those found in other legislation such as the Inspector-General of Intelligence and Security Act 1986 (IGIS Act). The IGIS Act may also be particularly relevant given that IGIS's focus is also on the actions of Commonwealth agencies. It is also useful to compare the proposed powers in the bill with those given to the ACCC, provided that it is recognised that the ACCC is charged with enforcing Australia's competition, fair trading, and consumer protection laws, whereas the Small Business Commissioner's functions focus on dispute resolution. The Small Business Commissioner's proposed powers relate to matters being 'inquired into'.[26] This could likely include matters that were less serious than a contravention or possible contravention of the law.

3.25 The following paragraphs discuss the need for the information gathering powers and examine more specific matters associated with the powers.

Need for formal information gathering powers

3.26 The South Australian Small Business Commissioner strongly argued that a legislative framework establishing a small business commissioner needs to provide the commissioner with the power to require information that assists the commissioner to carry out their functions.[27]

3.27 However, other bodies appear to be less convinced about the need for this. The Queensland Law Society expressed its concern about the 'very broad powers' proposed in the bill.[28] When asked in February 2013 about the need for such powers, the current Australian Small Business Commissioner expressed his view that, based on his past experience as the Victorian Small Business Commissioner, coercive powers were not vital to the office being effective:

Senator WHISH-WILSON: Can I just pick you up on 'voluntarily'. That has prompted something in my mind. Is it the South Australian business commissioner that has legislative powers to compel arbitration and subpoena documents? You said 'voluntarily'. Is that the difference in the roles?

Mr Brennan: I do not think you need to have such heavy-handed legislative powers. Again, when I was set up in Victoria there was a question as to whether the powers set up under legislation were sufficient. But, in practice, I very rarely resorted to the authority of the legislation. The commissioner can get by with credibility—and I mentioned credibility right at the start.[29]

Failure to provide information or documents or to answer questions

3.28 A strict liability offence is contained in subclause 13(6) for failure to comply with a notice requiring a person to give evidence in person.[30] The penalties proposed are a maximum fine of $2000 for an individual and $5000 for a body corporate. However, the offence does not apply to non-compliance with orders relating to the giving of information in writing or producing documents. That is, there does not appear to be a provision requiring that a person must not refuse or fail to comply with notices requiring the giving of information or production of documents. Accordingly, the Commissioner would not be able to enforce compliance with these notices.

3.29 Although not entirely the case, the clauses are broadly similar to those found in the IGIS Act. Paragraph 18(7)(a) of the IGIS Act expressly makes a failure to give information or produce a document when required to do so by a notice a strict liability offence.[31]

3.30 On the proposed fines contained in subclause 13(6) of the bill, the Law Council expressed its view that they 'are very low' and that the 'these fines have to be significantly increased to give [the Commissioner] greater ability to ensure that persons comply with notices'.[32]

'Reasonable excuse' defence

3.31 Subclause 13(7) provides that an offence is not committed if the person has a reasonable excuse for failing to comply with a notice requiring evidence to be given in person. Other than this, the bill does not provide guidance on what information, documents or answers to questions a person may object to providing. As the Parliamentary Joint Committee on Human Rights noted, in particular it is unclear:

whether the intended effect of the provisions requiring a person to provide information or documents or answer questions is to abrogate the privilege against self-incrimination'. If so, it is unclear whether subclause (9) provides for a use immunity (so that any information, documents or answers obtained as a direct consequence of the notice is not admissible in evidence against the person in other proceedings) and if so, whether it excludes a derivate use immunity (allowing the information, documents or answers to be indirectly used to look for evidence against the person).[33]

3.32 The Administrative Review Council's 2008 report of its review of the coercive information gathering powers available to Commonwealth agencies declared that:

Client legal privilege and the privilege against self-incrimination—including the privilege against self-exposure to penalty—are fundamental principles that should be upheld through legislation. Abrogation of the privileges should occur only rarely, in circumstances that are clearly defined, compelling and limited in scope. Legislation should clearly state whether or not the privileges are abrogated and when, how and from whom the privileges (including a use immunity) may be claimed.[34] (emphasis added)

3.33 Other Acts are more informative than the bill in this regard. Turning again to the IGIS Act, subsection 18(6) of that Act states that a person is not excused from giving any information, producing a document or answering a question on the grounds that doing so would: (a) contravene the provisions of any other Act; (b) would be contrary to the public interest; or (c) might tend to incriminate the person or make the person liable to a penalty. However, the subsection further provides that the information provided would not be admissible in evidence against the person. Paragraph 18(7)(b) provides that failure to comply with the notice or failure to answer a question that the Inspector-General requires the person to answer is a strict liability offence.[35]

3.34 The ACCC's general information gathering powers also have constraints on the types of information and documents that may be provided or how that information or document may be used. In particular, the provisions:

prevent the disclosure of matters that relate to the cabinet deliberations of a state or territory;[36]
explicitly do not excuse a person from giving evidence or producing a document on the ground that the information or document may tend to incriminate the person or expose the person to a penalty (but the evidence is not admissible against the individual in any criminal proceedings);[37] and
do not require a person to produce a document that would disclose information that is the subject of legal professional privilege.[38]

3.35 The lack of a specific exception for legal professional privilege (also referred to as client legal privilege) was noted in submissions. The Law Council recommended that a statutory safeguard of legal professional privilege be included in the bill. The Queensland Law Society suggested that information and documents where legal professional privilege applies be provided as an example where the 'reasonable excuse' defence for non‑compliance can be applied. The Queensland Law Society also added that other professions where confidentiality is required, such as accountancy, also be given as examples where a reasonable excuse can apply.[39]

3.36 The defence of a reasonable excuse is common in coercive information gathering power regimes.[40] In its 2008 report noted above, the Administrative Review Council considered the meaning of the phrase and its consequences for legal professional privilege. The Council indicated its view that:

The 'reasonable excuse' provisions the [Administrative Review] Council identified do not expressly state whether or not client legal privilege is available. In AWB Ltd v Honourable Terence Roderick Hudson Cole Young J said the term 'reasonable excuse' in the context of s 3(5) of the Royal Commissions Act 1902 'bears its ordinary meaning, and that meaning is wide enough to include the non-production of a document on the grounds that it is subject to legal professional privilege' [(2006) 152 FCR 382]. In the absence of express words to the contrary, a reasonable excuse provision is likely to encompass client legal privilege, and the result is that, unless privilege is abrogated ... a successful claim of client legal privilege can give an absolute right to refuse to answer questions or to provide information to an agency.[41]

Refusal to be sworn or to make an affirmation

3.37 Subclause 13(4) provides that the Commissioner may administer an oath or affirmation to a person required by a notice issued under subclause 13(3) to attend to answer questions. The oath or affirmation is that the evidence the person will give will be true (subclause 13(5)). However, the bill does not provide guidance on the consequences if a person refuses to take the oath or make an affirmation.

3.38 Again, the IGIS Act provides a useful model for comparison. Paragraph 18(7)(a) of the IGIS Act makes failure to be sworn or to make an affirmation a strict liability offence.

Information sharing

3.39 As discussed in chapter 2, there are a number of state small business commissioners and fair trading agencies. Paragraph 8(e) of the bill would enable the Australian Small Business Commissioner to enter into agreements with these bodies to allow the Commissioner to provide advice and assistance in respect of disputes with national ramifications. However, only clause 11 deals expressly with sharing information with other agencies, and it only allows for information sharing with the ACCC and ASIC.

3.40 The ACCC's information gathering powers also include explicit provisions regarding information sharing that are not contained in the bill. Reflecting the ACCC's role as a law enforcement agency, some may not be applicable for a Small Businesses Commissioner; however, they include provisions that:

prevent the disclosure of protected information [42] gathered by the statutory office holders or staff except in certain specified situations (for example, the ACCC chairman can authorise the that protected information be shared with other government agencies, such as the ABS, Australian Taxation Office and state and territory government bodies, if it is considered that doing so would enable or assist that agency to perform or exercise any of its functions or powers);[43]
facilitate persons other than a member of the ACCC (for example ACCC staff and consultants) to inspect, make copies of, or take extracts from documents.[44]

3.41 While the bill does not include a provision that would expressly prevent the disclosure of information gathered by the statutory office holders or staff, a general offence for the unauthorised disclosure of information by Commonwealth officers is contained in section 70 of the Crimes Act 1914. The APS Code of Conduct requires that public servants must not make improper use of inside information to gain or seek to gain a benefit or advantage for themselves or any other person.[45] Further, regulation 2.1 of the Public Service Regulations 1999 prohibits a public servant from disclosing information that they obtain or generate in connection with their employment if:

'it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs'; or
the information was, or is to be, communicated in confidence within the government; was received in confidence by the government from a person or persons outside the government; whether or not the disclosure would found an action for breach of confidence.[46]

Views in evidence

3.42 The TIO suggested that the Small Business Commissioner be permitted to share information with other external dispute resolution schemes.[47]

Other matters

3.43 Clause 29 would require the Small Business Commissioner to prepare an annual report, which the Minister must cause to be tabled in both houses of the Parliament within 15 sitting days of receipt. This is a typical form of an annual report requirement. The report would also need to comply with the government's requirements for annual reports.[48]

3.44 SPAR Australia suggested that the Commissioner should report directly to the Parliament, rather than through the Minister. SPAR also proposed that the Commissioner be made a statutory officer of the Parliament, to 'add weight and gravitas to the Office of the Small Business Commissioner and demonstrate the seriousness with which the Parliament sees small business and the role it plays in the community and economy at large'.[49]

Drafting issues

3.45 The committee has identified a number of drafting issues, varying from minor issues to those that are perhaps of a more consequential nature. While the minor drafting issues are relatively straightforward, the committee has not formed a view on the other aspects of the drafting which may, or may not, be intentional. Instead, they are outlined here to inform the Senate in the event that the bill is proceeded with.

Commonwealth agencies

3.46 In outlining the proposed Commissioner's dispute resolution functions, clause 8 relies on the words 'Departments, Statutory Agencies and Executive Agencies of the Commonwealth'. This phrase is not defined and the explanatory memorandum does not provide further guidance about the types of Commonwealth agencies intended to be targeted. While components of the phrase are used in other legislation, the phrase in its entirety does not appear to be used elsewhere. It may be preferable for a definition to be used that is more widely understood.

3.47 Definitions of government agencies are contained in different Acts and are used for diverse purposes, including for staffing, financial accountability, appropriations and freedom of information. The Public Service Act 1999 provides a useful starting point. Within that Act, the following definitions are used:

Department—'a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency';
Statutory Agency—'a body or group of persons declared by an Act to be a Statutory Agency for the purposes of this Act'; and
Executive Agency—'an Executive Agency established under section 65 [of the Public Service Act].[50]

3.48 However, there are Commonwealth departments that are not departments of state, namely the parliamentary departments established under the Parliamentary Service Act 1999. This distinction is recognised in the Financial Management and Accountability Act 1997 (FMA Act), which, for the purposes of that Act, defines an agency as:

(a) a Department of State:

(i) including persons who are allocated to the Department (for the purposes of this Act) by regulations made for the purposes of this paragraph; but

(ii) not including any part of the Department that is a prescribed Agency;

(b) a Parliamentary Department, including persons who are allocated to the Department (for the purposes of this Act) by regulations made for the purposes of this paragraph;

3.49 In addition to the FMA Act agencies, there is also the High Court and the Commonwealth authorities and companies under the Commonwealth Authorities and Companies Act 1997 (CAC Act). CAC Act authorities include the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and Tourism Australia; an example of a CAC Act company is NBN Co.

3.50 A definition which provides a useful overview of the framework is that contained in the Parliamentary Service Act for 'Commonwealth body', which is as follows:

(a) an Agency within the meaning of the Financial Management and Accountability Act 1997; or

(b) the High Court of Australia; or

(d) a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997.[52]

3.51 Section 4 of the Freedom of Information Act 1982 also comprehensively specifies the types of bodies intended to be covered by that Act.

Penalty for failure to comply with a notice to attend an examination

3.52 Subclause 13(6) provides that a maximum fine of $2000 for a natural person and $5000 for a body corporate will be imposed when a person is guilty of the offence outlined in the clause (failing to comply with a notice requiring them to attend an examination). It may be preferable for the fine to be expressed as a number of penalty units instead of as a particular dollar amount. Alternatively, information about the application of section 4AB of the Crimes Act 1914 could be included in the bill or the explanatory memorandum.[53]

Appointment of the first Small Business Commissioner

3.53 Clauses 15 and 17 outline how the Commissioner will usually be appointed, and the general terms and conditions of appointment. However, as noted earlier, clause 16 contains special arrangements to provide that the first Commissioner shall be the 'individual known as the Federal Small Business Commissioner at the date this Act receives the Royal Assent'.

3.54 Clauses 16 and 17 differ slightly in describing the terms and conditions of appointment that the Governor-General may determine. Subclause 17(3) provides that the Commissioner will hold office 'on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor-General'. Clause 16, however, does not include the words 'in relation to matters not covered by this Act' when describing the terms and conditions of appointment that the Governor‑General may determine in relation to the appointment of the first Small Business Commissioner.

Minor drafting issues

Clause 7

3.55 Paragraph 7(d) refers to the 'Australian Securities Commission' which is the former name of ASIC. ASIC is referred to correctly elsewhere in the bill.

Clause 8

3.56 In the description of the Commissioner's dispute resolution functions and powers, the word 'investigate' is used in both paragraphs 8(1)(a) and 8(1)(b), as shown below:

The Commissioner has the following dispute resolution functions and powers:

(a) to receive and investigate complaints from small businesses about their commercial arrangements with Departments, Statutory Agencies and Executive Agencies of the Commonwealth; and

(b) to investigate and, where appropriate, to facilitate the resolution of such complaints; and ... (emphasis added)

3.57 The words 'and investigate' could be removed from paragraph 8(1)(a).

Clause 15

3.58 Clause 15 states:

The Commissioner is to be appointed by the Governor-General by written instrument.

Note: The Small Business Commissioner is referred to in this Act as the Small Business Commissioner.

3.59 The short form of Small Business Commissioner actually used in the bill is 'Commissioner', which is defined in clause 3 as meaning the Small Business Commissioner appointed under clause 15. It may be preferable for the clause to be amended to read as follows:[54]

The Small Business Commissioner is to be appointed by the Governor‑General by written instrument.

Note: The Small Business Commissioner is referred to in this Act as the Commissioner.

Navigation: Previous Page | Contents | Next Page