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A Bill for an Act to define the roles and responsibilities of the Federal Small Business Commissioner, and for related purposes
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Registered 28 Feb 2013
Introduced Senate 25 Feb 2013

 

2010‑2011‑2012‑2013

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Small Business Commissioner Bill 2013

 

No.      , 2013

 

(Senator Whish‑Wilson)

 

 

 

A Bill for an Act to define the roles and responsibilities of the Federal Small Business Commissioner, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Definitions.......................................................................................... 2

Part 2—Office of the Small Business Commissioner                                        3

Division 1—Establishment                                                                                         3

4............ Guide to this Division......................................................................... 3

5............ Establishment...................................................................................... 3

Division 2—Functions and powers of the Commissioner                          4

6............ Guide to this Division......................................................................... 4

7............ Functions and powers of the Commissioner....................................... 4

8............ Dispute resolution functions and powers............................................ 4

9............ Reporting functions and powers......................................................... 5

10.......... Research and publication functions and powers.................................. 6

11.......... Sharing information............................................................................ 6

Division 3—Information gathering powers                                                      7

12.......... Guide to this Division......................................................................... 7

13.......... Power to obtain information and documents....................................... 7

Division 4—The Commissioner                                                                               9

14.......... Guide to this Division......................................................................... 9

15.......... Appointment....................................................................................... 9

16.......... Appointment of first Small Business Commissioner.......................... 9

17.......... General terms and conditions of appointment..................................... 9

18.......... Restriction on outside employment................................................... 10

19.......... Remuneration.................................................................................... 10

20.......... Leave of absence............................................................................... 10

21.......... Resignation....................................................................................... 10

22.......... Termination of appointment.............................................................. 10

23.......... Acting appointments......................................................................... 11

24.......... Disclosure of interests....................................................................... 11

25.......... Staff.................................................................................................. 12

26.......... Consultants....................................................................................... 12

27.......... Delegation by the Small Business Commissioner............................. 12

Division 5—Annual reports and regulations                                                  13

28.......... Guide to this Division....................................................................... 13

29.......... Annual report.................................................................................... 13

30.......... Regulations....................................................................................... 13

 


A Bill for an Act to define the roles and responsibilities of the Federal Small Business Commissioner, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Small Business Commissioner Act 2013.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 30

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Definitions

                   In this Act:

Commissioner means the Small Business Commissioner appointed under section 15 of this Act.

Office of the Small Business Commissioner means the Office established by subsection 5(1) of this Act.

small business means a business that has 19 or fewer employees.

Part 2Office of the Small Business Commissioner

Division 1Establishment

4  Guide to this Division

This Division establishes the Office of the Small Business Commissioner.

The Office of the Small Business Commissioner consists of the Commissioner and the staff.

The Commissioner is the head of the Office of the Small Business Commissioner (for the purposes of the Public Service Act 1999).

The Division sets out the functions of the Commissioner.

5  Establishment

             (1)  The Office of the Small Business Commissioner is established by this section.

             (2)  The Office of the Small Business Commissioner consists of:

                     (a)  the Commissioner; and

                     (b)  the staff of the Office of the Small Business Commissioner mentioned in section 25.

             (3)  For the purposes of the Public Service Act 1999:

                     (a)  the Commissioner and the staff of the Office of the Small Business Commissioner constitute a Statutory Agency; and

                     (b)  the Commissioner is the Head of that Statutory Agency.

Note:          The Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).


 

Division 2Functions and powers of the Commissioner

6  Guide to this Division

This Division provides details about the functions and powers of the Commissioner.

7  Functions and powers of the Commissioner

                   The Commissioner has the following functions and powers:

                     (a)  the dispute resolution functions and powers described in section 8;

                     (b)  the reporting functions and powers described in section 9;

                     (c)  the research and publication functions and powers described in section 10;

                     (d)  to share any information obtained in exercise of the functions and powers with the Australian Competition and Consumer Commission and the Australian Securities Commission in accordance with section 11;

                     (e)  to require an individual to attend and give evidence in accordance with Division 3 of this Part;

                      (f)  the power to do all things necessary or convenient to be done for or in connection with the performance of these functions and powers.

8  Dispute resolution functions and powers

Functions and powers

             (1)  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

                     (c)  to undertake any action appropriate for the purpose of facilitating the fair treatment of small business in their commercial arrangements with Departments, Statutory Agencies or Executive Agencies of the Commonwealth; and

                     (d)  subject to subsection (2), 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; and

                     (e)  to enter into agreement with the Commissioner of Small Business (or Department of Fair Trading or similar body) of a State or Territory to allow the Commissioner to provide advice and assistance in respect of any dispute that has national ramifications.

Constitutional limit

             (2)  Paragraph (1)(d) applies only to the extent that each party to the transaction is:

                     (a)  a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth; or

                     (b)  a business or corporation involved in trade or commerce between the States and Territories of Australia, or with other countries.

9  Reporting functions and powers

                   The Commissioner has the following reporting functions and powers:

                     (a)  to monitor and investigate market practices that may adversely impact small businesses; and

                     (b)  to report to the Minister about such market practices; and

                     (c)  to report to the Minister on the following matters:

                              (i)  any matter about small businesses for which the Minister has asked the Commissioner to prepare a report;

                             (ii)  any matter arising in respect of the functions of the Commissioner; and

                     (d)  to present an annual report to the Minister in accordance with section 29.

10  Research and publication functions and powers

                   The Commissioner has the following research and publication functions and powers:

                     (a)  to prepare and publish information for small business about entering into commercial arrangements with Departments, Statutory Agencies or Executive Agencies of the Commonwealth; and

                     (b)  to undertake research about small business.

11  Sharing information

                   The Commissioner may share information obtained in exercise of the functions or powers in this Division with:

                     (a)  the Australian Competition and Consumer Commission; and

                     (b)  the Australian Securities and Investments Commission.


 

Division 3Information gathering powers

12  Guide to this Division

This Division provides details about the Commissioner’s information gathering powers.

13  Power to obtain information and documents

             (1)  Where the Commissioner has reason to believe that a person is capable of giving information or producing documents relevant to a matter that is being inquired into by the Commissioner under this Act, the Commissioner may, by notice in writing given to the person, require the person, at such reasonable place and within such reasonable period as are specified in the notice:

                     (a)  to give to the Commissioner, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or

                     (b)  to produce to the Commissioner any such documents.

             (2)  Where documents are produced to the Commissioner in accordance with a requirement under subsection (1), the Commissioner:

                     (a)  may take possession of, and may make copies of or take extracts from, the documents; and

                     (b)  may retain possession of the documents for such period as is necessary for the purposes of the inquiry to which the documents relate; and

                     (c)  during that period shall permit a person who would be entitled to inspect any one or more of the documents if they were not in the possession of the Commissioner to inspect at all reasonable times such of the documents as the person would be so entitled to inspect.

             (3)  Where the Commissioner has reason to believe that a person is able to give information relevant to a matter that is being inquired into by the Commissioner under this Act, the Commissioner may, by notice in writing given to the person, require the person to attend before the Commissioner, at such reasonable time and place as are specified in the notice, to answer questions relevant to the matter under inquiry.

             (4)  The Commissioner may administer an oath or affirmation to a person required to attend before the Commissioner under subsection (3) and may examine the person on oath or affirmation.

             (5)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

             (6)  A person who after being given a notice under subsection (3), fails to comply with the notice to attend the place specified in the notice

is guilty of an offence punishable on conviction:

                     (a)  in the case of a natural person—by a fine not exceeding $2,000; or

                     (b)  in the case of a body corporate—by a fine not exceeding $5,000.

             (7)  Subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  Subsection (6) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

             (9)  A person is not liable to any penalty under the provisions of any law of the Commonwealth or of a Territory by reason only of the person having given information, produced a document or answered a question when required to do so under this section.

Division 4The Commissioner

14  Guide to this Division

This Division provides for the appointment of the Commissioner.

The Commissioner may engage staff and consultants.

The Commissioner may delegate all of his or her functions or powers, other than the preparation of reports and certain formal procedural steps.

15  Appointment

                   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.

16  Appointment of first Small Business Commissioner

                   The individual known as the Federal Small Business Commissioner at the date this Act receives the Royal Assent shall be appointed to be the first Small Business Commissioner, subject to any terms and conditions of appointment, as determined by the Governor‑General by written instrument.

17  General terms and conditions of appointment

             (1)  The Commissioner holds office for the period specified in the Commissioner’s instrument of appointment. The period must not exceed 5 years.

             (2)  The Commissioner holds office on a full‑time basis.

             (3)  The Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

18  Restriction on outside employment

                   The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

19  Remuneration

             (1)  The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

20  Leave of absence

             (1)  The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

21  Resignation

             (1)  The Commissioner may resign his or her appointment by giving the Governor‑General a letter of resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

22  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Commissioner if any of the following apply:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;

                     (d)  the Commissioner fails, without reasonable excuse, to comply with section 24 (disclosure of interests).

23  Acting appointments

                   The Minister may, by written instrument, appoint a person to act as the Commissioner:

                     (a)  during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

24  Disclosure of interests

                   The Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Small Business Commissioner has or acquires and that conflict, or could conflict, with the proper performance of the Commissioner’s functions.

25  Staff

                   The staff of the Office of the Small Business Commissioner must be persons engaged under the Public Service Act 1999.

26  Consultants

             (1)  The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the functions and the exercise of the powers of the Small Business Commissioner.

             (2)  However, a consultant engaged under subsection (1) may only perform a function, or exercise a power, if the function or power can be delegated to a member of staff of the Office of the Small Business Commissioner under section 27.

27  Delegation by the Small Business Commissioner

                   The Commissioner may delegate, in writing, all or any of his or her functions or powers to a member of staff of the Office of the Small Business Commissioner, other than the preparing the report mentioned in section 29.


 

Division 5Annual reports and regulations

28  Guide to this Division

This Part deals with a number of other matters relevant to the operation of the Office of the Small Business Commissioner. The matters are as follows:

               (a)     the requirements for annual reports; and

              (b)     the making of regulations.

29  Annual report

             (1)  The Commissioner must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the operations of the Office of the Small Business Commissioner during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is received.

30  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.