Untitled document

Small Business Commissioner Amendment Act 2014

No. 14 of 2014

table of provisions

Section  Page

1Purpose

2Commencement

3Principal Act

4Definitions

5Functions and powers of Commissioner

6New sections 5A and 5B inserted

5ACommissioner may refuse to deal with certain complaints

5BCommissioner's alternative dispute resolution
function

7New section 6A inserted

6APower to issue certificates

8Further powers

9New section 11A inserted

11AAdvisory opinions

10New section 12A inserted

12AImmunity for the alternative dispute resolution
function

11Reporting

12Repeal of amending Act

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Endnotes

Small Business Commissioner Amendment Act 2014

No. 14 of 2014

[Assented to 18 March 2014]

The Parliament of Victoria enacts:

1Purpose

The purpose of this Act is to amend the Small Business Commissioner Act 2003—

(a)to amend the functions and powers of the Small Business Commissioner in order to promote the efficient resolution of commercial disputes involving small businesses; and

(b)to improve alternative dispute resolution services for small businesses; and

(c)to confer powers on the Commissioner to publish information relating to disputes in certain circumstances; and

(d)to make other amendments to improve the operation of that Act.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 August 2014, it comes into operation on that day.

3Principal Act

In this Act, the Small Business Commissioner Act 2003 is called the Principal Act.

4Definitions

(1)In the heading to section 3 of the Principal Act, for "Definition" substitute "Definitions".

(2)In section 3 of the Principal Act insert the following definitions—

"alternative dispute resolution includes mediation and preliminary assistance;

Council has the same meaning as in the Local Government Act 1989;

dispute means a dispute between a small business and one or more of the following—

(a)another business;

(b)a public entity;

(c)a public service body;

(d)a Council;

(e)a non-profit organisation;

non-profit organisation means an organisation having as its whole or dominant purpose a charitable, benevolent, philanthropic or patriotic purpose but does not include a school, an educational institution, an educational company or an instrumentality of the State;

public entity has the same meaning as in the Public Administration Act 2004;

public service body has the same meaning as in the Public Administration Act 2004.".

(3)In section 3 of the Principal Act, in the definition of Commissioner, for "section 4." substitute "section 4;".

5Functions and powers of Commissioner

(1)In section 5(2)(a) of the Principal Act, after "marketplace" insert "and with public entities, public service bodies, Councils and non-profit organisations".

(2)In section 5(2)(b) of the Principal Act, after "businesses" (where secondly occurring) insert "and with public entities, public service bodies, Councils and non-profit organisations".

(3)For section 5(2)(c) of the Principal Act substitute—

"(c)to receive and investigate complaints by small businesses regarding unfair market practices or commercial dealings, and provide alternative dispute resolution between the parties involved in the complaint;".

(4)After section 5(2)(d) of the Principal Act insert—

"(da)to provide alternative dispute resolution to small businesses in disputes with other businesses and with public entities, public service bodies, Councils and non-profit organisations;".

(5)In section 5(2)(j) of the Principal Act, after "codes" insert "of practice and to assist with the development and provision of industry codes of practice that promote alternative dispute resolution".

6New sections 5A and 5B inserted

After section 5 of the Principal Act insert—

"5A   Commissioner may refuse to deal with certain complaints

(1)The Commissioner may refuse to deal with a complaint received by the Commissioner if he or she is satisfied that—

(a)the complaint is trivial or vexatious; or

(b)the complaint is unlikely to be resolved through alternative dispute resolution; or

(c)the complaint could be more appropriately dealt with by a public entity, public service body or other person.

(2)If the Commissioner refuses to deal with a complaint under subsection (1), the Commissioner must give written notice to the person who made the complaint and, if applicable, details of the public entity, public service body or person to be contacted regarding the complaint.

5BCommissioner's alternative dispute resolution function

(1)In performing his or her alternative dispute resolution function under this Act, the Commissioner may determine the form of alternative dispute resolution to be used in the dispute.

(2)The Commissioner may charge fees and expenses for performing his or her alternative dispute resolution function, which must not be more than the maximum amount (if any) prescribed by the regulations.

(3)Subsection (2) does not affect the power of the Commissioner to charge fees and expenses under any other Act.".

7New section 6A inserted

After section 6 of the Principal Act insert—

"6A   Power to issue certificates

(1)The Commissioner may certify in writing that alternative dispute resolution performed under this Act has failed to resolve a dispute or is unlikely to resolve a dispute.

(2)A certificate issued under subsection (1) must include details of the parties involved in the dispute.

(3)The Commissioner may certify that a party to the dispute has unreasonably refused to participate in alternative dispute resolution.

(4)A certificate issued under this section may be admitted in evidence in proceedings before VCAT or a court.

(5)The Commissioner is not required to give a party to the dispute an opportunity to be heard or make submissions to the Commissioner before issuing a certificate under this section.".

8Further powers

For section 10(a) of the Principal Act substitute—

"(a)request assistance or information from any public entity, public service body or Council;".

9New section 11A inserted

After section 11 of the Principal Act insert—

"11A   Advisory opinions

(1)The Commissioner may refer a matter to VCAT for an advisory opinion under section 125 of the Victorian Civil and Administrative Tribunal Act 1998.

(2)For the purposes of subsection (1), the Commissioner may refer any matter relating to the performance of his or her functions or the exercise of his or her powers under this Act or under any other Act.

(3)Before referring a matter to VCAT, the Commissioner must be satisfied that the referral of the matter is in the public interest.".

10New section 12A inserted

After section 12 of the Principal Act insert—

"12A   Immunity for the alternative dispute resolution function

The Commissioner or another person who performs an alternative dispute resolution function of the Commissioner under this Act or under any other Act is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a)in the performance of the function; or

(b)in the reasonable belief that the act or omission was in the performance of the function.".

11Reporting

After section 14(2) of the Principal Act insert—

"(3)Subject to subsection (4), a report submitted to the Minister may include details of a certificate issued under section 6A(1) certifying that a party to a dispute has unreasonably refused to participate in alternative dispute resolution.

(4)Before the details of the certificate are included in the report, the Commissioner must give written notice to the party specifying—

(a)the Commissioner's intention to include the details of the certificate in the report; and

(b)that the party may make submissions to the Commissioner within 21 days giving reasons why details of the certificate should not be included in the report.

(5)If a party makes any submissions to the Commissioner within 21 days after receiving the notice, the Commissioner must consider those submissions.

(6)If the Commissioner intends to include in a report submitted to the Minister a comment or opinion that is adverse to any person, other than the details of a certificate referred to in subsection (3), the Commissioner must first give the person a reasonable opportunity to respond to the adverse material and fairly set out the response in the report.

(7)The Commissioner must not include in the report any information that would identify any person who is not the subject of any adverse comment or opinion unless the Commissioner—

(a)is satisfied that it is necessary or desirable to do so in the public interest; and

(b)is satisfied that it will not cause unreasonable damage to the person's reputation, safety or wellbeing; and

(c)states in the report that the person is not the subject of any adverse comment or opinion.".

12Repeal of amending Act

This Act is repealed on 1 August 2015.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Minister's second reading speech—

Legislative Assembly: 11 December 2013

Legislative Council: 20 February 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Small Business Commissioner Act 2003 to amend the functions and powers of the Small Business Commissioner, to improve alternative dispute resolution services, to confer powers on the Commissioner to publish information relating to disputes and for other purposes."