Dissenting report from Senator Whish-Wilson and Senator Xenophon

1.1        Small business is an important part of the Australian economy. As stated in the Committee report, they make a substantial contribution to the Australian economy through employing almost 5 million people.

1.2        This important contribution is exactly why we believe it is important for these businesses to have a statutory office holder and agency to represent and advocate for them.  As outlined in the Committee report, statutory small business commissioners currently operate in Victoria, Western Australia and South Australia. New South Wales is currently considering legislation to back up their small business commissioner.

1.3        These commissioners play an important role at the State level. However there is also a role for a Commissioner to play at the Commonwealth level. This is why we supported the Government’s decision last year to appoint a small business commissioner. However merely appointing a commissioner is not sufficient for the appropriate representation of this important sector.  

1.4        As the committee’s report made clear, the evidence received from the submissions provided to the inquiry supported the idea of a legislated Office of the Small Business Commissioner. Any future inquiries into the role and responsibilities of the small business commissioner should ensure these submissions are taken into account.

1.5        Many of the submissions also pointed out where the bill could be improved or modified. Many of the issues raised are constructive and would improve the functioning and implementation of the office of the small business commissioner. It is disappointing that the committee’s one recommendation is not to pass the bill, despite the overwhelming support the bill has from the submissions.

1.6        The reasons given by the committee to not pass the bill include avoiding

• ‘changes that would overlap the responsibilities of...existing agencies or create confusion for small businesses as to what body they should approach for assistance’ (4.1) and
• That the credibility of the office is more important than having coercive statutory powers available. (4.2)

1.7        Both of these reasons fundamentally ignore the idea that the commissioner and the office have already been established and are fully resourced. If anything legislation would clarify exactly what the commissioner and staff are and aren’t allowed to work on and investigate, rather than being able to pick and choose the issues they want to become involved in. Secondly the credibility of the office is obviously important and we would suggest this would only be enhanced by coercive powers rather than be diminished. Coercive powers will be able to help a new agency finding its place to have the appropriate backing to ensure its role is taken seriously.

1.8        How credible is an office that has no ability to bring people to the table to discuss and resolve issues? Statutory powers sitting in the background are essential to ensure the commissioner can represent and advocate appropriately. This is especially necessary where there may be a perceived power imbalance between a small business and large Government Departments and Agencies.

1.9        As outlined by office of the South Australian Small Business Commissioner in their submission:

In practice, our statutory independence, as well as a statutory power to require information, has undoubtedly contributed to the excellent levels of cooperation we have received from State Government Departments and Agencies. This, in turn, has enabled our Office to achieve very high levels of success in resolving potential disputes with State Government Departments and Agencies.^[1]

1.10      Although the office has been in operation for only 11 months, the South Australian Small Business Commissioner has had an outstanding dispute resolution success rate. Of the 356 cases taken on by the Commission since its inception, 271 (or 87.7 percent) were resolved successfully. This clearly demonstrates the benefits of statutory powers in assisting with dispute resolution. 

1.11      As stated by the office of the South Australian Small Business Commissioner:

The monetary value of these successfully resolved disputes and the additional savings of legal costs for these small businesses vary considerably from disputes involving hundreds of dollars up to those involving millions of dollars.^[2]

1.12      It is therefore clear a Small Business Commissioner that is equipped with appropriate powers has the ability to save small businesses from the high costs associated with formal legal proceedings. 

1.13      We accept the committee’s opinion that the bill requires further refinement.  However the committee also makes it clear that the bill should not be passed based on the issues discussed above, so regardless of any refinements that could be made to the bill, it seems the committee would not recommend the passing of the bill in any circumstances.

Recommendation 1

1.14             That the bill be amended to take into account some of the issues raised in the submissions.

Recommendation 2

1.15             That the bill be passed by the Senate.

 

Senator Peter Whish-Wilson
Senator for Tasmania

 

Senator Nick Xenophon
Senator for South Australia

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