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Consultation has concluded. Thanks for your contributions.
Share your views on proposed amendments to the Small Business Commissioner Act 2011 aimed to enhance dispute resolution for small businesses in South Australia.
What's being decided?
We are seeking your feedback on a proposal to amend the Small Business Commissioner Act 2011.
The purpose of the reforms is to:
provide clarity around the advocacy, dispute resolution and compliance functions undertaken by the South Australian Small Business Commissioner (SASBC)
provide distinction between other government agencies involved in the small business sector
support the future strategic direction of our agency.
Background
The Small Business Commissioner Act 2011 commenced on 22 March 2012 and established the office of the South Australian Small Business Commissioner (SASBC) and its functions.
Changes to the operating environment for small businesses has prompted our office to consider how we can better support businesses requiring our services.
Get involved
We invite your feedback on the proposed amendments to ensure they achieve the objective of assisting small businesses to succeed.
Following consultation, we will consider all feedback received and finalise the Bill to be introduced into Parliament in early 2024.
Share your views on proposed amendments to the Small Business Commissioner Act 2011 aimed to enhance dispute resolution for small businesses in South Australia.
What's being decided?
We are seeking your feedback on a proposal to amend the Small Business Commissioner Act 2011.
The purpose of the reforms is to:
provide clarity around the advocacy, dispute resolution and compliance functions undertaken by the South Australian Small Business Commissioner (SASBC)
provide distinction between other government agencies involved in the small business sector
support the future strategic direction of our agency.
Background
The Small Business Commissioner Act 2011 commenced on 22 March 2012 and established the office of the South Australian Small Business Commissioner (SASBC) and its functions.
Changes to the operating environment for small businesses has prompted our office to consider how we can better support businesses requiring our services.
Get involved
We invite your feedback on the proposed amendments to ensure they achieve the objective of assisting small businesses to succeed.
Feedback about advocacy and support for small business in SA
Please provide any thoughts or comments you may have on the Small Business Commissioner Amendment Bill 2023.
Consultation has concluded. Thanks for your contributions.
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In each of the four pieces of feedback – the response has been structured in the following way: reference path to clause of interest. Followed by the section of the clause of interest. Followed by our feedback relating to that clause.
(i) Re: Part 3 – Dispute Resolution - Division 2—General - 12B—Alternative dispute resolution (2) & Division 1—Alternative dispute resolution—general 34—Amendment of section 63—Responsibility of the Commissioner to arrange for mediation of disputes. (3) Section 63—after its present contents as amended by this section (now to be designated as subsection1))insert: (4) The Commission may charge fees and expenses for performing its alternative dispute resolution functions. Our feedback is that the services provided to small businesses should remain free of charge, especially where a dispute is considered and the party raising it, may already be vulnerable.
(ii) Re: Part 3 – Dispute Resolution - Division 3 – Designated alternative dispute resolution 12E – Commission may require attendance at alternative dispute resolution processes and production of documents (2) & Part 3 Amendment of Retail and Commercial Leases Act 1995 - 39—Insertion of Part 9 Division 1B Part 9—before Division 2 insert: Division 1B— Designated alternative dispute resolution— 66A—Commission may require attendance at alternative dispute resolution processes and production of documents (2) A person who, without reasonable excuse, refuses or fails to comply with a requirement in a notice under this section is guilty of an offence. Maximum penalty: $20 000. Expiation fee: $1 200. Our feedback is that the penalties and fees proposed again are of concern from a similar perspective to above. Suggested this may not be the best avenue for application of financial measures, perhaps this should be left to the courts.
(iii) Re: Part 3 - Dispute Resolution 20—Insertion of sections 12A, 12B, 12C, 12D and 12E After section 12 insert: Division 3—Designated alternative dispute resolution 12F—Power to issue certificates (5) & Part 3 Amendment of Retail and Commercial Leases Act 1995 - 39—Insertion of Part 9 Division 1B Part 9—before Division 2 insert: Division 1B— Designated alternative dispute resolution—66B-Power to issue certificates (5) - The Commission is not required to give a party to the dispute an opportunity to be heard or make submissions to the Commission before issuing a certificate under subsection (1). Our feedback is that it seems a determination can be made without all the facts being presented or an opportunity to present those facts (i.e. a lack of natural justice) – and that per previous clauses discussed, financial penalties may be consequently imposed. We suggest that the Commission reconsider the proposed wording to enable natural justice to occur.
(iv) Re: Part 3—Amendment of Retail and Commercial Leases Act 1995 Division 1—Alternative dispute resolution—general 34—Amendment of section 63—Responsibility of the Commissioner to arrange for mediation of disputes. (3) Section 63—after its present contents as amended by this section (now to be designated as subsection (1)) insert: (3) The Commission may refuse to deal with a dispute if— (a) the dispute does not arise from, or relate to, a retail shop lease; or (b) the dispute does not relate to any other matter relevant to the occupation of premises, or to business conducted at the premises, the subject of a retail shop lease; or… Our feedback is that whilst we haven’t yet been able to think through the variety of businesses/applications this affects, it seems to limit the support to physical retail operations only. This cuts out a large number of small businesses and doesn’t appear to align with the conduct of current business avenues.
In each of the four pieces of feedback – the response has been structured in the following way: reference path to clause of interest. Followed by the section of the clause of interest. Followed by our feedback relating to that clause.
(i) Re: Part 3 – Dispute Resolution - Division 2—General - 12B—Alternative dispute resolution (2) &
Division 1—Alternative dispute resolution—general 34—Amendment of section 63—Responsibility of the Commissioner to arrange for mediation of disputes.
(3) Section 63—after its present contents as amended by this section (now to be designated as subsection1))insert: (4)
The Commission may charge fees and expenses for performing its alternative dispute resolution functions.
Our feedback is that the services provided to small businesses should remain free of charge, especially where a dispute is considered and the party raising it, may already be vulnerable.
(ii) Re: Part 3 – Dispute Resolution - Division 3 – Designated alternative dispute resolution 12E – Commission may require attendance at alternative dispute resolution processes
and production of documents (2) &
Part 3 Amendment of Retail and Commercial Leases Act 1995 - 39—Insertion of Part 9 Division 1B Part 9—before Division 2 insert: Division 1B— Designated alternative dispute resolution— 66A—Commission may require attendance at alternative dispute resolution processes and production of documents (2)
A person who, without reasonable excuse, refuses or fails to comply with a requirement in a notice under this section is guilty of an offence. Maximum penalty: $20 000. Expiation fee: $1 200.
Our feedback is that the penalties and fees proposed again are of concern from a similar perspective to above. Suggested this may not be the best avenue for application of financial measures, perhaps this should be left to the courts.
(iii) Re: Part 3 - Dispute Resolution 20—Insertion of sections 12A, 12B, 12C, 12D and 12E After section 12 insert: Division 3—Designated alternative dispute resolution 12F—Power
to issue certificates (5) &
Part 3 Amendment of Retail and Commercial Leases Act 1995 - 39—Insertion of Part 9 Division 1B Part 9—before Division 2 insert: Division 1B— Designated alternative dispute resolution—66B-Power to issue certificates (5) - The Commission is not required to give a party to the dispute an opportunity to be heard or make submissions to the Commission before issuing a certificate under subsection (1).
Our feedback is that it seems a determination can be made without all the facts being presented or an opportunity to present those facts (i.e. a lack of natural justice) – and that per previous clauses discussed, financial penalties may be consequently imposed. We suggest that the Commission reconsider the proposed wording to enable natural justice to occur.
(iv) Re: Part 3—Amendment of Retail and Commercial Leases Act 1995 Division 1—Alternative dispute resolution—general 34—Amendment of section 63—Responsibility of the Commissioner to arrange for mediation of disputes.
(3) Section 63—after its present contents as amended by this section (now to be designated as subsection (1)) insert: (3) The Commission may refuse to deal with a dispute if— (a) the dispute does not arise from, or relate to, a retail shop lease; or (b) the dispute does not relate to any other matter relevant to the occupation of premises, or to business conducted at the premises, the subject of a retail shop lease; or…
Our feedback is that whilst we haven’t yet been able to think through the variety of businesses/applications this affects, it seems to limit the support to physical retail operations only. This cuts out a large number of small businesses and doesn’t appear to align with the conduct of current business avenues.