Frequently Asked Questions
Why isn’t ‘small business’ defined in the legislation?
Small Business was not defined in the legislation as there is no agreed definition of what a small business is. For example:
Australian Bureau of Statistics (ABS) uses 20 FTE or less; Fair Work Act (Cth) 15 FTE or less; Australian Taxation Office $2m turnover or less (potentially to change to $5m); In Europe 50 FTE; and some American States 500 FTE ( using the U.S. Small Business Administration definition and size standards).
Given these variances, it was decided not to have a definition as it was intended to give the greatest access for all businesses. It is a relative measure and will be dealt with on a case by case basis.
What does the ‘power to require information’ mean in the legislation?
It is anticipated that the majority of businesses involved in disputes will be willing to work with the Commissioner to resolve the situation. This power enables the Commissioner to properly investigate the issues associated with a dispute. Without the necessary information the Commissioner would not be able to have the best opportunity to assist the parties.
The Small Business Commissioner may request information by providing a written request under Secition 12 of the Small Business Commissioner Act 2011. A failure to respond to this request may lead to prosecution with a fine of up to $20,000. A court would determine any penalty. From the consultation process legal professional privilege was added to this section to put that beyond doubt. If the Commissioner is seen by a party to being unreasonable then that party may apply for judicial review or refer the matter to the Ombudsman.
‘To assist small businesses on request in their dealings with State and Local Government bodies’. How will this work?
The Commissioner is an independent statutory officer. If a complaint or dispute arises between a business and a State or Local government body, the Commissioner will liaise with the appropriate State or Local government body to assist in resolving the dispute. It was important to define the functions clearly about what the Commissioner can help small businesses with and there are disputes of this nature that occur. If the matter is with a Commonwealth department it will be referred to the appropriate Commonwealth contact.
What is the relationship between the ACCC and the Small Business Commissioner and will there will be duplication in functions?
The powers of the Small Business Commissioner are clearly defined in the legislation. The ACCC also has clearly defined functions under the Commonwealth legislation. The ACCC are rarely involved in individual disputes. The ACCC have already advised that they intend to work cooperatively and collaboratively with all of the various State-based Small Business Commissioners.