Small Business Commissioner Act 2004 (ACT)

Small Business Commissioner Act 2004 (repealed)   

A2004-70

Republication No 2

Effective:  2 July 2006

Republication date: 2 July 2006

As repealed by A2006-30 s 4 (1) (d)

Unauthorised version prepared by ACT Parliamentary Counsel’s Office

About this republication

The republished law

This is a republication of the Small Business Commissioner Act 2004 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 2 July 2006. 

The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.

Kinds of republications

The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">

authorised republications to which the Legislation Act 2001 applies

unauthorised republications.

The status of this republication appears on the bottom of each page.

Editorial changes

The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication.  Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.

This republication does not include amendments made under part 11.3 (see endnote 1).

Uncommenced provisions and amendments

If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol  U  appears immediately before the provision heading.  The text of the uncommenced provision or amendment appears only in the last endnote.

Modifications

If a provision of the republished law is affected by a current modification, the symbol  M  appears immediately before the provision heading.  The text of the modifying provision appears in the endnotes.  For the legal status of modifications, see Legislation Act 2001, section 95.

Penalties

The value of a penalty unit for an offence against this republished law at the republication date is—

(a)if the person charged is an individual—$100; or

(b)if the person charged is a corporation—$500.

Small Business Commissioner Act 2004 (repealed)

Contents

Page

Part 1Preliminary

1. Name of Act  2

2. Object of Act  2

3. Dictionary  2

4. Notes  2

Part 2The commissioner

1. Office of commissioner  3

2. Appointment of commissioner  3

3. Term of appointment of commissioner  3

4. Conditions of appointment of commissioner  3

5. Ending commissioner’s appointment  3

6. Functions  4

7. Directions by Minister  6

8. Government entities to assist commissioner  6

9. Staff  6

10. Consultants  7

11. Delegation  7

Part 3Miscellaneous

1. Protection of officials from liability  8

2. Approved forms  8

3. Determination of fees  8

4. Regulation-making power  9

5. Review of Act  9

Dictionary10

Endnotes

1. About the endnotes  11

2. Abbreviation key  11

3. Legislation history  12

4. Amendment history  12

5. Earlier republications  xii

Small Business Commissioner Act 2004 (repealed)

An Act to provide for a small business commissioner

Part 1Preliminary

1. Name of Act

   This Act is the Small Business Commissioner Act 2004.

2. Object of Act

   The main object of this Act is to enhance a competitive, cooperative and fair operating environment for small business in the ACT.

3. Dictionary

   The dictionary at the end of this Act is part of this Act.

   Note 1The dictionary at the end of this Act defines certain terms used in this Act.

   Note 2A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4. Notes

   A note included in this Act is explanatory and is not part of this Act.

   NoteSee Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 2The commissioner

1. Office of commissioner

   There is to be a Small Business Commissioner.

2. Appointment of commissioner

   The Minister must appoint a person to be the commissioner.

   Note 1For the making of appointments (including acting appointments), see Legislation Act, pt 19.3.

   Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

   Note 3Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

3. Term of appointment of commissioner

   The commissioner must be appointed for a term of not longer than 5 years.

   NoteA person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

4. Conditions of appointment of commissioner

   The commissioner’s conditions of appointment are the conditions agreed between the Minister and the commissioner, subject to any determination under the Remuneration Tribunal Act 1995.

5. Ending commissioner’s appointment

   (1)The Minister may end the appointment of the commissioner—

   (a)if the commissioner contravenes a Territory law; or

   (b)for misbehaviour; or

   (c)if the commissioner becomes bankrupt, or executes a personal insolvency agreement; or

   (d)if the commissioner is convicted, in the ACT, of an offence punishable by imprisonment for at least 1 year; or

   (e)if the commissioner is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year; or

   (f)in accordance with the commissioner’s employment conditions.

   (2)The Minister must end the commissioner’s appointment for physical or mental incapacity, if the incapacity substantially affects the exercise of the commissioner’s functions.

   NoteA person’s appointment also ends if the person resigns (see Legislation Act, s 210).

6. Functions

   (1)The commissioner has the following functions:

   (a)to facilitate and encourage the fair treatment of small businesses in commercial dealings with other businesses in the marketplace;

   (b)to promote informed decision-making by small businesses to minimise disputes with other businesses;

   (c)to facilitate the resolution of complaints by small businesses about unfair market practices and promote mediation between the parties involved in the complaints;

   (d)to make representations to appropriate entities on behalf of any small business with a complaint mentioned in paragraph (c);

   (e)to monitor and report to the Minister on any emerging trends in market practices that have an adverse effect on small businesses;

   (f)to develop small business service charters within government entities to ensure small businesses receive high quality services from government entities;

   (g)to monitor the operation and effectiveness of the small business charters;

   (h)as required by the Minister, to monitor and report on the impact of legislation, government procedures and administration on small businesses;

   (i)to promote laws, policies and practices that support the objects of this Act;

   (j)to disseminate information about the operation of this Act and the functions of the commissioner;

   (k)to advise the Minister on the operation of this Act or any issue relating to small businesses, whether at the Minister’s request or on the commissioner’s own initiative;

   (l)to exercise any other function given to the commissioner under this Act or another Territory law.

   NoteA provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

   (2)To remove any doubt, the commissioner must not investigate or continue to investigate anything arising in a complaint mentioned in paragraph (1) (c), if the commissioner becomes aware that it is the subject of an investigation, or a proceeding in a court or tribunal, in relation to an offence or disciplinary matter.

7. Directions by Minister

   (1)The Minister may give a written direction to the commissioner about the exercise of the commissioner’s functions.

   (2)The commissioner must comply with a direction given to the commissioner under this section.

   (3)A report by the commissioner under the Annual Reports (Government Agencies) Act 2004 for a financial year must include—

   (a)a copy of any direction given under this section during the year; and

   (b)a statement by the commissioner about action taken during the year to give effect to any direction given (whether before or during the year) under this section.

   NoteFinancial year has an extended meaning in the Annual Reports (Government Agencies) Act 2004.

   (4)A direction is a notifiable instrument.

   NoteA notifiable instrument must be notified under the Legislation Act.

8. Government entities to assist commissioner

   The chief executive of a government entity must cooperate with any request by the commissioner for information or assistance reasonably required by the commissioner for the exercise of the commissioner’s functions.

9. Staff

   The staff assisting the commissioner are to be employed under the Public Sector Management Act 1994.

10. Consultants

    (1)The commissioner may, on behalf of the Territory, engage consultants.

    (2)However, the commissioner must not enter into a contract of employment under this section.

11. Delegation

    The commissioner may delegate any of the commissioner’s functions under this Act or another Territory law to a public servant.

    NoteFor the making of delegations and the exercise of delegated functions, see Legislation Act, pt 19.4.

Part 3Miscellaneous

1. Protection of officials from liability

   (1)In this section:

   official means—

   (a)the commissioner; or

   (b)any member of the staff assisting the commissioner; or

   (c)anyone else exercising a function under this Act.

   (2)An official does not incur civil liability for an act or omission done honestly and without recklessness for this Act.

   (3)Any civil liability that would, apart from this section, attach to an official attaches instead to the Territory.

   NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

2. Approved forms

   (1)The commissioner may, in writing, approve forms for this Act.

   (2)If the commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

   (3)An approved form is a notifiable instrument.

   Note A notifiable instrument must be notified under the Legislation Act.

3. Determination of fees

   (1)The Minister may, in writing, determine fees for this Act.

   NoteThe Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3)

   (2)A determination is a disallowable instrument.

   NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

4. Regulation-making power

   The Executive may make regulations for this Act.

   NoteRegulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

5. Review of Act

   (1)The Minister must review the operation of this Act as soon as practicable after the end of its 2nd year of operation.

   (2)The Minister must present a report on the review to the Legislative Assembly within 3 months after the day the review is started.

   (3)The Minister must seek views on the exercise of the commissioner’s functions from—

   (a)small businesses in the ACT; and

   (b)any relevant advisory body for the ACT.

   (4)The review must include consideration of—

   (a)any views given to the Minister under subsection (3); and

   (b)the performance of the commissioner in exercising the commissioner’s functions; and

   (c)the extent to which the object of the Act is being achieved.

   (5)This section expires 3 years after the day it commences.

Dictionary

(see s 4)

Note 1The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2For example, the Legislation Act, dict, pt 1, defines the following terms:

·     administrative unit

·     chief executive (see s 163)

·     Minister (see s 162)

·     public servant

·     tribunal

·     statutory office-holder.

business includes—

(a)a business not carried on for profit; and

(b)a trade or profession.

chief executive, in relation to a statutory office, means the holder of the office.

commissioner means the Small Business Commissioner.

government entity means—

(a)an administrative unit; or

(b)a statutory office-holder and the staff assisting the statutory officer-holder.

Endnotes

1. About the endnotes

   Amending and modifying laws are annotated in the legislation history and the amendment history.  Current modifications are not included in the republished law but are set out in the endnotes.

   Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.

   Uncommenced amending laws and expiries are listed in the legislation history and the amendment history.  These details are underlined.  Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.

   If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. 

   The endnotes also include a table of earlier republications.

2. Abbreviation key

am = amended	ord = ordinance
amdt = amendment	orig = original
ch = chapter	par = paragraph/subparagraph
def = definition	pres = present
dict = dictionary	prev = previous
disallowed = disallowed by the Legislative	(prev...) = previously
Assembly	pt = part
div = division	r = rule/subrule
exp = expires/expired	renum = renumbered
Gaz = gazette	reloc = relocated
hdg = heading	R[X] = Republication No
IA = Interpretation Act 1967	RI = reissue
ins = inserted/added	s = section/subsection
LA = Legislation Act 2001	sch = schedule
LR = legislation register	sdiv = subdivision
LRA = Legislation (Republication) Act 1996	sub = substituted
mod = modified/modification	SL = Subordinate Law
o = order	underlining = whole or part not commenced
om = omitted/repealed	or to be expired

1. Legislation history

   Small Business Commissioner Act 2004 A2004-70

   notified LR 9 September 2004
   s 1, s 2 commenced 9 September 2004 (LA s 75 (1))

   remainder commenced 10 September 2004 (s 2)

   as repealed by

   Administrative (Miscellaneous Amendments) Act 2006 A2006-30 s 4 (1) (d)

   notified LR 16 June 2006
   s 1, s 2 commenced 16 June 2006 (LA s 75 (1))

   s 4 (1) (d) commenced 1 July 2006 (s 2 (1))

2. Amendment history

   Commencement

   s 2om LA s 89 (4)

   Review of Act

   s 21exp 10 September 2007 (s 21 (5))

3. Earlier republications

   Some earlier republications were not numbered. The number in column 1 refers to the publication order. 

   Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register.  A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1.  Electronic and printed versions of an authorised republication are identical.

Republication No and date	Effective	Last amendment made by	Republication for
R1 10 Sept 2004	10 Sept 2004– 1 July 2006	not amended	new Act