EXPLANATORY STATEMENT
Issued by authority of the Minister for Small Business
Australian Small Business and Family Enterprise Ombudsman Act 2015
Australian Small Business and Family Enterprise Ombudsman Rules 2026
Section 96 of the Australian Small Business and Family Enterprise Ombudsman Act 2015 (the Act) provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Australian Small Business and Family Enterprise Ombudsman Rules 2026 (the Rules) is to remake the Australian Small Business and Family Enterprise Ombudsman Rules 2016 (the 2016 Rules) before the 2016 Rules ‘sunset’.
All legislative instruments, other than exempt instruments, progressively sunset according to the timetable in section 50 of the Legislation Act 2003. Legislative instruments generally cease to have effect after 10 years unless their operation is extended by remaking the instrument. The 2016 Rules are scheduled to sunset on 1 April 2026.
The Rules remake the 2016 Rules by repealing redundant provisions, simplifying language, and updating existing rules and requirements to ensure they continue to operate in accordance with current policy.
The Rules also prescribe the remuneration to be paid to witnesses who attend a hearing in accordance with a summons under the Act. Witnesses who appear at a hearing in accordance with a summons under subsection 48(1) of the Act will be remunerated $75 per day in accordance with section 51 of the Act.
The Rules also prescribe the entities to be recognised as an ‘agency’ of the Commonwealth or a State or Territory under the Act, and the entities to which the Australian Small Business and Family Enterprise Ombudsman (the Ombudsman) may disclose protected information.
The Ombudsman was established in 2016 by the Act. The Ombudsman provides Commonwealth-wide assistance and advocacy for Australian small businesses and family enterprises.
The Act does not specify any conditions that need to be satisfied before the power to make an instrument may be exercised.
Public consultation was not undertaken in relation to this instrument. Treasury consulted with the Commonwealth Ombudsman and extensively with the Ombudsman. The Ombudsman, as a sector leader routinely engages with bodies like the State Small Business Commissioners, IDCARE, the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission, as well as leading various sector forums. The Ombudsman’s inclusions are based on deep industry knowledge, case experience and bodies the Ombudsman refers to for small business assistance or information sharing. The instrument remakes an existing instrument that is due to sunset and does not make any substantive changes to policy or operation. As the instrument maintains the status quo and has no material change to its impact on stakeholders, public consultation was considered unnecessary.
The lists of agencies were developed in consultation with relevant Commonwealth, state and territory stakeholders, including the Ombudsman. The Ombudsman engages routinely with small businesses, industry associations and government bodies. None of these organisations have raised any significant issues with the operation of the Rules with the Ombudsman.
The Rules are a legislative instrument for the purposes of the Legislation Act 2003.
The Rules commenced on the day after registration on the Federal Register of Legislation.
The Rules are subject to disallowance, and sunset on 1 April 2036.
Details of the Rules are set out in Attachment A.
A statement of Compatibility with Human Rights is at Attachment B.
ATTACHMENT A
Details of the Australian Small Business and Family Enterprise Ombudsman Rules 2026
Part 1 - Preliminary
Section 1 – Name
This section provides that the name of the legislative instrument is the Australian Small Business and Family Enterprise Ombudsman Rules 2026 (the Rules).
Section 2 – Commencement
This section provides that the Rules commence the day after the instrument is registered on the Federal Register of Legislation.
Section 3 – Authority
The Rules are made under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (the Act).
Section 4 – Schedules
This section provides that each instrument that is specified in the Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule, and any other item in the Schedules to this instrument has effect according to its terms.
Section 5 – Definitions
Section 5 of the Rules defines ‘the Act’ to mean the Australian Small Business and Family Enterprise Ombudsman Act 2015.
A Note informs that, consistent with paragraph 13(1)(b) of the Legislation Act 2003, expressions have the same meaning in the Rules as in the Act as in force from time to time.
This section does not include a reference to the Australian Small Business and Family Enterprise Ombudsman (the Ombudsman), rather, using the Act’s definition of the Ombudsman as in force from time to time. Section 3 of the Australian Small Business and Family Enterprise Ombudsman Rules 2016 included a definition of Ombudsman to mean the Australian Small Business and Family Enterprise Ombudsman. The definitions are located in sections 4 to 9 and 80 to 81 of the Act.
Part 2 – Agencies of the Commonwealth, State and Territories and other prescribed bodies
A Note informs that the names of the bodies and agencies referred to in the Part correspond to their listing on the Australian Business Register.
Section 6 – Prescribed Commonwealth agencies
Subsection 8(1) of the Act provides for the meaning of ‘agency’ of the Commonwealth. Paragraph 8(1)(d) of the Act provides that a body is also an agency of the Commonwealth if the body (whether incorporated or not) is prescribed to be an agency of the Commonwealth.
Section 6 of the Rules updates the table of bodies prescribed for the purpose of paragraph 8(1)(d) of the Act from the table in the Australian Small Business and Family Enterprise Ombudsman Rules 2016 (the 2016 Rules). The table in the Rules:
- prescribes four bodies as Commonwealth agencies.
Where bodies prescribed to be agencies of the Commonwealth in the 2016 Rules are not prescribed in the Rules, this is because:
- the bodies have ceased to exist or have been renamed;
- the bodies have undergone internal restructuring and no longer need to receive protected information;
- the bodies are automatically considered to be agencies of the Commonwealth pursuant to paragraphs 8(1)(a) to (c) of the Act.
Notes 1 and 2 clarify that Commonwealth departments, authorities or bodies established for a public purpose by a law of the Commonwealth, and persons holding office or exercising power under a law of the Commonwealth are automatically agencies of the Commonwealth for the purposes of the Act. This is pursuant to paragraphs 8(1)(a) to (c) of the Act, which provides that the aforementioned entities are agencies of the Commonwealth.
Note 3 informs that a complete list of agencies, authorities, bodies and persons who are agencies of the Commonwealth, and may be relevant to the assistance function of the Ombudsman under the Act, can be found on the Ombudsman’s website and identifies the website address. The Ombudsman’s website address, identified by Note 3, is provided for information and is not incorporated by reference into the Rules as it does not establish operative rules within section 6 but instead assists users of the Rules to identify information on how the Ombudsman applies section 6. This website is freely available at https://www.asbfeo.gov.au
Section 7 – Prescribed State or Territory agencies
Subsection 8(2) of the Act provides for the meaning of an ‘agency’ of a State or a Territory. Paragraph (8)(2)(e) of the Act provides that a body is also an agency of a State or a Territory if the body (whether incorporated or not) is prescribed to be an agency of a State or Territory.
Section 7 of the Rules prescribes the bodies and persons for the purpose of paragraph 8(2)(e) of the Act. This is set out in table format. The table in the Rules:
- prescribes 20 bodies as agencies of a State or Territory;
- removes references to any bodies and persons who were prescribed in the 2016 Rules who are already an agency of a State or Territory for the purposes of the Act;
- groups bodies and persons alphabetically and by State or Territory.
Where bodies and persons were prescribed to be an agency of a State or Territory in the 2016 Rules are not prescribed as such in the Rules, this is because:
- these bodies and persons have ceased to exist or have been renamed;
- these bodies and persons have undergone internal restructuring and no longer need to receive protected information;
- these bodies and persons are automatically considered to be an agency of the State or Territory pursuant to paragraphs 8(2)(a) to (d) of the Act.
Notes 1 and 2 clarify that State or Territory departments, authorities or bodies established for a public purpose by a law of a State or Territory, and persons holding office or exercising power under a law of a State or Territory are automatically agencies of the State or Territory for the purposes of the Act. This is pursuant to paragraphs 8(2)(b) to (d) of the Act, which provides that the aforementioned entities are agencies of a State or Territory.
Note 3 informs that a complete list of agencies, authorities, bodies and persons who are agencies of a State or Territory and may be relevant to the assistance function of the Ombudsman under the Act can be found on the Ombudsman’s website and identifies the website address. The Ombudsman’s website address, identified by Note 3, is provided for information and is not incorporated by reference into the Rules as it does not establish operative rules within section 7 but instead assists users of the Rules to identify information on how the Ombudsman applies section 7. This incorporated website is freely available at https://www.asbfeo.gov.au.
Section 8 – Prescribed Commonwealth, State or Territory agencies – disclosure of protected information
This section supports the Ombudsman’s ability to disclose protected information to prescribed Commonwealth, State and Territory agencies in limited circumstances where the Ombudsman reasonably believes that providing the information will enable or assist the relevant agency to perform or exercise its functions or powers.
For the purposes of the Act, section 80 of the Act defines protected information as information relating to the affairs of a small business or family enterprise, disclosed to, or obtained by, a ‘person assisting’ a small business or family enterprise. Section 81 of the Act defines a person assisting a small business or family enterprise as:
- the Ombudsman;
- a delegate of the Ombudsman;
- staff of the Ombudsman;
- a person engaged as a consultant under section 34 of the Act;
- a person providing an alternative dispute resolution process in connection with a dispute in relation to a relevant action.
Subsections 86(1) and 86(2) of the Act provide that the Ombudsman may disclose protected information to bodies or persons identified in subsection 86(1) of the Act if the Ombudsman reasonably believes that providing that protected information will enable or assist that body or person to perform or exercise any of the functions or powers of the agency or body. The Ombudsman ensures that personal information collected is protected by the Privacy Act 1988.
Paragraph 86(1)(g) of the Act provides that any agency of the Commonwealth, a State or Territory prescribed pursuant to paragraph 86(1)(g) is a body or person to whom the Ombudsman may disclose protected information.
Section 8 of the Rules prescribes agencies of the Commonwealth, State or Territory that are authorised to receive protected information from the Ombudsman pursuant to paragraph 86(1)(g). This is set out in table format. The table in the Rules:
- prescribes 104 bodies and persons as Commonwealth, State or Territory agencies able to have protected information disclosed to them by the Ombudsman;
- groups bodies and persons alphabetically and by State or Territory.
Where bodies and persons were prescribed by the Rules to be agencies of a State or Territory in the 2016 Rules are not prescribed as such in the Rules, this is because:
- these bodies and persons have ceased to exist or have been renamed;
- these bodies and persons have undergone internal restructuring and no longer need to receive protected information.
For avoidance of doubt, bodies or persons that are prescribed by sections 6 or 7 of the Rules to be agencies for the purposes of section 8 of the Act do not, by that designation alone, have authority to receive protected information. These persons or bodies must also be prescribed by this section of the Rules for the purposes of paragraph 86(1)(g) of the Act.
The Act specifies that protected information can be disclosed or used by a person assisting a small business or family enterprise if the disclosure or use is for the purposes of the Act or a legislative instrument made under the Act.
The Act provides necessary safeguards to protect against unauthorised disclosure of protected information. Section 82 of the Act provides that, subject to specified exemptions, unauthorised disclosure, or use, of protected information by a person assisting small business or family enterprise carries a penalty of imprisonment for two years, or 120 penalty units to ensure protected information is handled appropriately.
Section 9 – Prescribed professional disciplinary bodies – disclosure of protected information
This section separately prescribes professional disciplinary bodies for the purposes of paragraph 86(1)(h) of the Act, recognising that disclosures to these bodies may be necessary to enable or assist the performance of their disciplinary functions (distinct from disclosures to prescribed agencies under paragraph 86(1)(g)).
Subsections 86(1) and (2) of the Act also permit the Ombudsman to disclose protected information to prescribed professional disciplinary bodies to assist those bodies to perform their functions.
Section 9 of the Rules prescribes the relevant professional disciplinary bodies that are authorised to receive protected information pursuant to paragraph 86(1)(h). This is set out in table format. The table in the Rules:
- prescribes 24 bodies as professional disciplinary bodies able to have protected information disclosed to them by the Ombudsman;
- groups bodies alphabetically and by State or Territory.
Where professional disciplinary bodies were prescribed in the 2016 Rules but are not prescribed as such in the Rules, this is because:
- these bodies have ceased to exist or have been renamed;
- these bodies have undergone internal restructuring and no longer need to receive protected information.
The Act specifies that protected information can be used by a person in a professional disciplinary body if the disclosure or use is for the purposes of the Act or a legislative instrument made under the Act. The Act provides necessary safeguards to protect against unauthorised disclosure of protected information. Section 86 of the Act provides that, subject to specified exemptions, a penalty of imprisonment for two years, or a fine to the value of 120 penalty units, applies to a person in a professional disciplinary body who discloses, or uses, the information provided by the Ombudsman without the Ombudsman’s consent, unless the disclosure or use is related to taking disciplinary action, to ensure protected information is handled appropriately.
Part 3 – Miscellaneous
Section 10 – Allowances to witnesses
As part of its advocacy function, the Ombudsman may be required to hold hearings for the purposes of an inquiry into the operation of relevant legislation, policies and practices regarding small businesses or family enterprises under section 42.
Subsection 48(1) of the Act provides that if the Ombudsman reasonably believes that a person has, or could take reasonable steps to obtain, information or documents relevant to the inquiry, the Ombudsman may summon a person, in writing, to appear at a hearing to give evidence and to produce documents specified in the summons. Section 51 of the Act provides that the Rules may prescribe an amount to be paid by the Commonwealth to a person who attends a hearing under a summons served under section 48 of the Act.
Pursuant to section 51, the Rules provide that witnesses who appear at a hearing in accordance with a summons under section 48 of the Act will be remunerated $75 per day. This is an increase from the previous rate of $50 per day or part day in the 2016 Rules.
Schedule 1 – Repeals
Item 1 of Schedule 1 to the Rules repeals the whole of the Australian Small Business and Family Enterprise Ombudsman Rules 2016 (2016 Rules). This is because the 2016 Rules are being replaced by the Rules.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Small Business and Family Enterprise Ombudsman Rules 2026
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Australian Small Business and Family Enterprise Ombudsman Rules 2026 (the Rules) is to remake the Australian Small Business and Family Enterprise Ombudsman Rules 2016 (the 2016 Rules) before the 2016 Rules ‘sunset’.
The Rules remake the 2016 Rules by repealing redundant provisions, simplifying language, and updating existing rules and requirements to ensure they continue to operate in accordance with current policy.
The Rules also prescribe the remuneration to be paid to witnesses who attend a hearing in accordance with a summons under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (the Act). Witnesses who appear at a hearing in accordance with a summons under subsection 48(1) of the Act will be remunerated $75 per day in accordance with section 51 of the Act.
The Rules also prescribe the entities to be recognised as an ‘agency’ of the Commonwealth or a State or Territory under the Act, and the entities to which the Australian Small Business and Family Enterprise Ombudsman (the Ombudsman) may disclose protected information.
Human rights implications
This Legislative Instrument engages the right to protection from arbitrary or unlawful interference with privacy recognised under Article 17 of the International Covenant on Civil and Political Rights (ICCPR). The right in Article 17 may be subject to permissible limitations, where these limitations are authorised by law and are not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.
Sections 8 and 9 of the Rules regulate the disclosure and use of protected information by specifying which agencies and professional disciplinary bodies can receive protected information from the Ombudsman. Providing these agencies with this power is proportionate as under section 86 of the Act the Ombudsman must reasonably believe that providing protected information will enable or assist that body or person to perform or exercise any of the functions or powers of the agency or body before disclosing the information. Without disclosure in these circumstances the Ombudsman would not be able to effectively carry out its functions to assist small business and family enterprises and provide dispute resolution services to small businesses and family enterprise.
Furthermore, sections 82 and 86 of the Act provides necessary safeguards against the unauthorised use or disclosure of protected information appropriately confining disclosure to prescribed recipients and purposes, and the inclusion of offence provisions for unauthorised disclosure or use of protected information. Personal information is not otherwise disclosed by the Ombudsman to other bodies or parties unless the individual has agreed to the disclosure, or where it is otherwise permitted, including where it is required or authorised by or under an Australian law, court, or tribunal order. Personal information collected by the Ombudsman is protected by the Privacy Act 1988.
Conclusion
This Legislative Instrument is compatible with human rights as, to the extent that the Legislative Instrument may limit human rights, those limitations are reasonable, necessary and proportionate.