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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