Footnotes


Footnotes

Chapter 1 - Introduction

[1]        Journals of the Senate, 2010–13, no. 136 (28 February 2013), pp. 3690–91.

[2]        Senator Whish-Wilson, Proof Senate Hansard, 25 February 2013, pp. 70–71.

[3]        Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 3 of 2013, pp. 8–11.

[4]        Human Rights (Parliamentary Scrutiny) Act 2011, paragraph 7(a).

[5]        Parliamentary Joint Committee on Human Rights, Third report of 2013, 13 March 2013, pp. 49–51.

Chapter 2 - An overview of small business disputes and issues relevant to the bill

[1]        ABS cat. 8165.0. This figure is based on July 2011 data and the definition of a small business being a business that employs less than 20 people.

[2]        ABS cat. 8155.0.

[3]        Council of Small Business Organisations of Australia, Submission 4, pp. 1–2.

[4]        Council of Small Business Organisations of Australia, Submission 15 to the Productivity Commission's study on regulator engagement with small business, 18 March 2013, www.pc.gov.au/__data/assets/pdf_file/0017/122444/sub015-small-business.pdf (accessed 20 March 2013), p. 3

[5]        Lattimore, R, Martin, B, Madge, A and Mills J, Design Principles for Small Business Programs and Regulations, Productivity Commission Staff Research Paper, August 1998; cited in Productivity Commission, Issues paper: Regulator engagement with small business, January 2013, p. 2.

[6]        Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 54.

[7]        This issue has been examined by a number of parliamentary inquiries. Inquiries that have addressed this issue directly include the Senate Economics References Committee's 2010 inquiry into the access of small business to finance and the Parliamentary Joint Committee on Corporations and Financial Services' 2011 inquiry into the access for small and medium business to finance. Other inquiries which have examined small business finance while analysing broader issues in the financial sector include the Senate Economics References Committee's inquiries into competition within the Australian banking sector (2011) and the post-GFC banking sector (2012).

[8]        Serious disputes are defined as disputes where legal action is taken or a third party becomes involved. It also includes when a small business considers taking legal action or involving a third party.

[9]        Orima Research, Summary Report: Department of Innovation, Industry, Science and Research (Industry and Small Business Policy Division)—Small Business Dispute Resolution, June 2010, p. 14.

[10]      Orima Research, Summary Report: Department of Innovation, Industry, Science and Research (Industry and Small Business Policy Division)—Small Business Dispute Resolution, June 2010, p. 15.

[11]      Council of Small Business of Australia, Submission to Small Business Dispute Options Paper, 30 June 2011, www.innovation.gov.au/SmallBusiness/SmallBusinessCommissioner/
Documents/COSBOA.pdf (accessed 6 March 2013), p. 2.

[12]      Australian Competition and Consumer Commission, Small business in focus: small business, franchising and industry codes half year report, no. 5 (July–December 2012), p. 1.

[13]      Australian Competition and Consumer Commission, Small business in focus: small business, franchising and industry codes half year report, no. 5 (July–December 2012), p. 1. These disputes were primarily from franchisees, although some disputes were received from franchisors.

[14]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 2.

[15]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 2.

[16]      Council of Small Business of Australia, Submission to Small Business Dispute Options Paper, 30 June 2011, www.innovation.gov.au/SmallBusiness/SmallBusinessCommissioner/
Documents/COSBOA.pdf (accessed 6 March 2013), p. 1.

[17]      Council of Small Business of Australia, Submission to Small Business Dispute Options Paper, 30 June 2011, www.innovation.gov.au/SmallBusiness/SmallBusinessCommissioner/
Documents/COSBOA.pdf (accessed 6 March 2013), p. 1.

[18]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 2.

[19]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 2.

[20]      Clause 8 of the bill. This clause is discussed further in chapter 3.

[21]      Department of Finance and Deregulation, 'Procurement On-Time Payment Policy for Small Business', Finance circular, no. 2012/02, p. 1.

[22]      Australian Government, Australian Government payments to small business: Performance report, 13th survey, 1 July 2010 to 30 June 2011, p. 3.

[23]      Council of Small Business Organisations of Australia, Submission 4, p. 2.

[24]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 8.

[25]      Telecommunications Industry Ombudsman, Submission 2, p. 2.

[26]      Law Council of Australia (SME Business Law Committee, Business Law Section), Submission 6, p. 3.

[27]      Parliament of Victoria, Law Reform Committee, Inquiry into alternative dispute resolution and restorative justice, May 2009, p. xlv; cited in Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 4.

[28]      Australian Government, Options paper: Resolution of small business disputes, May 2011, p. 3.

[29]      Telecommunications Industry Ombudsman, Submission 2, p. 3.

[30]      Small Business Commissioner Act 2003 (Vic), s. 5(2).

[31]      Office of the Victorian Small Business Commissioner, Annual report 2003–04, September 2004, pp. 4, 23.

[32]      Western Australian Small Business Development Corporation, 'The Government Appoints a Small Business Commissioner', Media release, 21 December 2011, www.smallbusiness.wa.gov.au/the-government-appoints-a-small-business-commissioner (accessed 4 March 2013); 'Small Business Commissioner Fact Sheet' www.smallbusiness.wa.gov.au/small-business-commissioner-fact-sheet/ (accessed 4 March 2013).

[33]      South Australia Small Business Commissioner, 'About us', www.sasbc.sa.gov.au/about_us (accessed 4 March 2013).

[34]      New South Wales Government, 'First NSW Small Business Commissioner appointed' 5 July 2011, www.smallbiz.nsw.gov.au/news/pages/SmallBusinessCommissioner.aspx (accessed 4 March 2013).

[35]      Small Business Commissioner Bill 2012 (NSW).

[36]      Schaper, M. 'Developments in the Australian Small Business Sector Since 1970', paper presented to the International Council for Small Business World Conference 2012, Wellington, New Zealand, 12 June 2012, http://sbaer.uca.edu/research/icsb/2012/Schaper%20140.pdf (accessed 13 March 2013).

[37]      The Hon Rachel Nolan MP, Queensland Minister for Finance and the Arts, 'Business Commissioner to cut red tape', Media release, 15 June 2011, http://statements.qld.gov.au/
Statement/Id/75251 (accessed 4 March 2013).

[38]      Australian Government, Options paper: Resolution of small business disputes, May 2011.

[39]      The Hon Julia Gillard MP and the Hon Brendan O’Connor MP, 'Government appoints Small Business Commissioner', Joint media release, 14 March 2012.

[40]      The Hon Brendan O'Connor MP, 'Mark Brennan appointed Australian Small Business Commissioner', Media release, 17 October 2012.

[41]      Australian Small Business Commissioner, eNewsletter, issue no. 1, 13 February 2013, http://australiansmallbusinesscommissioner.createsend4.com/t/ViewEmail/t/64B94CB91F14569E/B35FC4DEF4EC622A2540EF23F30FEDED (accessed 5 March 2013).

[42]      Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 54.

[43]      Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 54.

[44]      Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, pp. 54–55.

[45]      Association of Professional Engineers, Scientists and Managers Australia, Submission 1, p. 2.

[46]      South Australian Small Business Commissioner, Submission 5, [p. 1].

[47]      Council of Small Business Organisations of Australia, Submission 4, p. 1.

[48]      Council of Small Business Organisations of Australia, Submission 4, p. 2.

[49]      Telecommunications Industry Ombudsman, Submission 2, pp. 5–6.

[50]      Telecommunications Industry Ombudsman, Submission 2, p. 7.

[51]      Queensland Law Society, Submission 3, p. 1.

[52]      Law Council of Australia, Submission 6, p. 1.

[53]      Chamber of Commerce and Industry of Western Australia, Submission 9, p. 1.

Chapter 3 - Provisions of the bill

[1]        Clause 3 of the bill.

[2]        The Hon David Bradbury MP, Senator the Hon Penny Wong, the Hon Brendan O'Connor MP, 'Productivity Commission to Undertake National Study on Regulator Engagement with Small Business', Joint media release, 6 December 2012.

[3]        Telecommunications Industry Ombudsman, Submission 2, p. 2.

[4]        Telecommunications Industry Ombudsman, Submission 2, p. 6.

[5]        Law Council of Australia, Submission 6, p. 5.

[6]        Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 61.

[7]        Office of the Australian Small Business Commissioner, Submission 10 to the Productivity Commission inquiry into regulator engagement with small business, 15 March 2013, www.pc.gov.au/__data/assets/pdf_file/0014/122432/sub010-small-business.pdf (accessed 20 March 2013),, p. 6.

[8]        Clauses 15 and 17 of the bill.

[9]        Clause 16 of the bill.

[10]      Subclause 8(2) stipulates that this only applies to the extent that each party to the transaction is either: (a) a foreign corporation, or a trading or financial corporation formed within Australia; (b) or a business or corporation involved in trade or commerce between the states and territories, or with other countries. This subclause recognises the specific heads of power for Commonwealth legislation expressed in paragraphs 51(i) and (xx) of the Constitution.

[11]      Clause 11 of the bill.

[12]      Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 3 of 2013, pp. 8–9.

[13]      Queensland Law Society, Submission 3, p. 5.

[14]      Law Council of Australia, Submission 6, p. 3.

[15]      The Law Council suggested that to enable this, the Commissioner could receive submissions from small business about the negative impacts that new legislation may be having.

[16]      Law Council of Australia, Submission 6, p. 4.

[17]      Law Council of Australia, Submission 6, p. 5. See www.smallbusiness.nsw.gov.au/small-business-advocacy/examples-of-success-of-small-business-advocacy/case-3-the-devil-really-is-in-the-detail.

[18]      Telecommunications Industry Ombudsman, Submission 2, p. 7.

[19]      Examples given by the TIO include intra‑industry disputes and disputes that involve a small telecommunications service provider and its wholesale or upstream provider that is a larger corporation.

[20]      Telecommunications Industry Ombudsman, Submission 2, p. 7.

[21]      South Australian Small Business Commissioner, Submission 5, p. 9.

[22]      SPAR Australia, Submission 7, p. 4.

[23]      Subclause 13(1) of the bill.

[24]      Subclause 13(3) of the bill.

[25]      Specifically, the ACCC's general information gathering powers contained in section 155 of the Competition and Consumer Act 2010 (CCA). Subsection 155(1) provides that where the ACCC, its chairperson or deputy chairperson has reason to believe that a person has information, documents or evidence about a matter that constitutes, or may constitute, a contravention of the CCA (or certain other specified matters), a member of the ACCC can issue a notice requiring the person to provide the information, documents or evidence.

[26]      It is not clear whether the Small Business Commissioner's powers are limited to dispute resolution functions in clause 8, or whether they could be used for reporting functions under clause 9, where the Commissioner is required to monitor and investigate market practices that may adversely impact small business. The term 'investigate' is used in both clauses 8 and 9.

[27]      South Australian Small Business Commissioner, Submission 5, p. 5.

[28]      Queensland Law Society, Submission 3, p. 5.

[29]      Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 60.

[30]      Subsection 13(7) provides that an offence is not committed if the person has a reasonable excuse for failing to comply with the notice.

[31]      The penalty for this offence is, in the case of a natural person, a fine not exceeding $1000 or imprisonment for a period not exceeding six months, or both. For a body corporate a fine not exceeding $5000 applies.

[32]      Law Council of Australia, Submission 6, p. 7.

[33]      Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, third report of 2013 (March), p. 50.

[34]      Administrative Review Council, The coercive information-gathering powers of government agencies, May 2008, p. 57 [principle 17].

[35]      The penalty for this offence is, in the case of a natural person, a fine not exceeding $1000 or imprisonment for a period not exceeding six months, or both. For a body corporate a fine not exceeding $5000 applies.

[36]      Competition and Consumer Act 2010, s. 155(7A).

[37]      Competition and Consumer Act 2010, s. 155(7).

[38]      Competition and Consumer Act 2010, s. 155(7B).

[39]      Queensland Law Society, Submission 3, p. 5.

[40]      See Administrative Review Council, The coercive information-gathering powers of government agencies, May 2008, pp. 72–93 for a selection of information gathering powers held by Commonwealth agencies (as at December 2007), including whether a reasonable excuse defence is available.

[41]      Administrative Review Council, The coercive information-gathering powers of government agencies, May 2008, p. 55.

[42]      Among other things, protected information includes information given in confidence to the ACCC and information obtained by ACCC as a result of its coercive information gathering powers contained in section 155 of the CCA.

[43]      Competition and Consumer Act 2010, s. 155AAA.

[44]      Competition and Consumer Act 2010, s. 156.

[45]      Public Service Act 1999, s. 13(10).

[46]      Public Service Regulations 1999, r. 2.1(3) and (4). Subregulation 2.1(5) provides that these prohibitions do not apply if the information is: (a) disclosed in the course of the APS employee's duties; (b) the information is disclosed in accordance with an authorisation given by an Agency Head; (c) disclosure is otherwise authorised by law; or (d) the information that is disclosed is already in the public domain or can be disclosed without disclosing other information the disclosure of which would be prohibited.

[47]      Telecommunications Industry Ombudsman, Submission 2, p. 7.

[48]      See Department of the Prime Minister and Cabinet, Requirements for annual reports for departments, executive agencies and FMA Act bodies, 28 June 2012.

[49]      SPAR Australia, Submission 7, p. 5.

[50]      Public Service Act 1999, s. 7.

[51]      Financial Management and Accountability Act 1997, s. 5.

[52]      Parliamentary Service Act 1999, s. 7.

[53]      Section 4AB of the Crimes Act 1914 provides for fines expressed in dollar amounts to be converted to penalty units. The number of penalty units is obtained by dividing the dollar fine by 100 and rounding up to the nearest whole number. The $2000 fine for a natural person proposed by subclause 13(6) would, therefore, be equal to 20 penalty units. With one penalty unit currently equal to $170, this would be a fine of $3400.

[54]      This would be more consistent with other legislation; see, for example, subsection 14(1) of the Australian Information Commissioner Act 2010.

Chapter 4 - Committee view

[1]        See, for example, Council of Small Business of Australia, 'Historic Moment as National Small Business Commissioner Appointed', Media release, 16 October 2012, www.cosboa.org.au/
Post/HistoricMomentasNationalSmallBusinessCommissionerAppointed (accessed 25 March 2013); Australian Chamber of Commerce and Industry, 'Appointment of Small Business Commissioner', Media release, 17 October 2012, http://acci.asn.au/Research-and-Publications/Media-Centre/Media-Releases-and-Transcripts/Economics-Industry/Appointment-of-Small-Business-Commissioner (accessed 25 March 2013).

[2]        See Mr Mark Brennan, Australian Small Business Commissioner, Proof Committee Hansard, Additional Budget Estimates 2012–13, 13 February 2013, p. 60.

Dissenting report from Senator Whish-Wilson and Senator Xenophon

[1] South Australian Small Business Commissioner, submission 5, p.3

[2] South Australian Small Business Commissioner, submission 5, p. 6.