Small Business Commission Act 2011

This Act may be cited as the Small Business Commission

Act 2011.

In this Act, unless the contrary intention appears—

alternative dispute resolution includes mediation, but does not include arbitration or expert determination;

Commission means the Small Business Commission established under section 3A;

Commissioner means the person holding or acting in the office of the Small Business Commissioner;

Deputy means the Deputy Small Business

Commissioner;

government agency means any of the following:

a person who holds an office established by an Act;

an administrative unit;

a council established under the Local Government

Act 1999;

any incorporated or unincorporated body—

established for a public purpose by an Act; or

established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations);

or

established or subject to control or direction by the Governor, a

Minister of the Crown or any instrumentality or agency of the Crown or a council (whether or not established by or under an Act); or

an entity prescribed by the regulations to be a government agency to which this Act applies, but does not include an entity excluded from the ambit of this definition by the regulations;

industry code has the same meaning as in

Part 3A of the Fair Trading

Act 1987 and includes a code whether or not prescribed for the purposes of that Act or any other Act of the State or the

Commonwealth.

The Small Business Commission is established.

The Commission is to be constituted by the Commissioner, and is an agency of the Crown.

There will be a Small Business

Commissioner.

The Commissioner will be appointed by the

Governor.

The objects of the Commission are to—

deal with issues concerning the small business sector in an independent manner; and

promote a fair operating environment in which small businesses can thrive; and

provide small businesses with general advice and assistance;

and

facilitate the timely and cost-effective resolution of disputes involving small businesses through appropriate forms of alternative dispute resolution.

The functions of the Commission are to—

facilitate the resolution of disputes involving small businesses through alternative dispute resolution; and

support small business owners in their dealings with other businesses or government agencies through the provision of general advice and assistance; and

collaborate with industry associations on matters impacting small businesses to ensure that optimal outcomes are achieved; and

identify issues and trends in the small business sector, and where appropriate, provide recommendations to the Minister or government agencies;

and

make representations or take any action on behalf of small businesses, either on the Commission's own initiative or at the request of a small business; and

administer Part 3A (Industry codes) of the

Fair Trading

Act 1987 and the Australian Consumer Law (SA) to the extent that responsibility for that administration is assigned to the

Commission under the Fair Trading

Act 1987; and

administer Part 3B (Regulation of motor vehicle insurers and repairers) of the Fair Trading

Act 1987 to the extent that responsibility for that administration is assigned to the Commission under that Act; and

monitor, investigate and advise the Minister about—

non-compliance with industry codes that may adversely affect small businesses; and

non-compliance with an applicable industry code of conduct declared under section 28I of the Fair Trading

Act 1987 that may adversely affect small businesses;

and

market practices that may adversely affect small businesses;

and

report to the Minister on any aspect of the Commission's functions at the request of the Minister or on the Commission's own initiative;

and

take any other action considered appropriate by the Commission for the purpose of facilitating and encouraging the fair treatment of small businesses; and

perform any other functions conferred on the Commission by or under this or any other Act.

The Commission is to perform the functions with a view to the development and maintenance in South Australia of relationships between small businesses and other businesses, and small businesses and State and local government bodies, that are based on dealings conducted fairly and in good faith.

The Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Subject to this section, the Minister may give directions to the

Commission.

The Minister—

may not give a direction in relation to the investigation, mediation or resolution of a particular complaint or dispute; and

must consult with the Commission before giving a direction.

A Ministerial direction to the Commission—

must be communicated to the Commission in writing;

and

must be included in the annual report of the Commission under the

Public Sector

Act 2009.

The Commissioner will be appointed for a term not exceeding

5 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment.

The appointment of the Commissioner may be terminated by the

Governor on the ground that the Commissioner—

has been guilty of misconduct; or

has been convicted of an offence punishable by imprisonment;

or

has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or

has been disqualified from managing corporations under

Chapter 2D Part 2D.6 of the Corporations Act 2001 of the

Commonwealth; or

has, because of mental or physical incapacity, failed to carry out duties of the position satisfactorily; or

is incompetent or has neglected the duties of the position.

The appointment of the Commissioner is terminated if the

Commissioner—

becomes a member, or a candidate for election as a member, of the

Parliament of a State or the Commonwealth or a Legislative Assembly of a

Territory of the Commonwealth; or

is sentenced to imprisonment for an offence.

The Commissioner may resign by notice in writing to the Minister of not less than 3 months (or such shorter period as is accepted by the

Minister).

The Minister may appoint a person (who may be a Public Service employee) to be the Deputy Small Business

Commissioner.

The Deputy may—

act as the Commissioner during any period for which—

no person is for the time being appointed as the Commissioner;

or

the Commissioner is absent from, or unable to discharge, official duties; and

when not so acting, perform functions or exercise powers of the

Commission by delegation from the Commission.

The Minister may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which—

no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties;

and

no person is for the time being appointed as the Deputy or the

Deputy is absent from, or unable to discharge, official duties.

The terms and conditions of appointment of the Deputy or other person appointed to act as the Commissioner will be determined by the

Minister.

The Commissioner has all the functions and powers of the

Commission.

All acts and things done by the Commissioner in the name of or on behalf of the Commission are taken to have been done by the

Commission.

The Commissioner, the Deputy and any other person appointed to act as the Commissioner are senior officials for the purposes of the

Public Sector (Honesty and Accountability)

Act 1995.

The Commission's staff consists of—

the Deputy and any acting Commissioner appointed under section 8; and

Public Service employees assigned to assist the Commission;

and

persons employed by the Commission, with the consent of the

Minister and on terms and conditions determined by the Minister, to assist the

Commission.

The Commissioner may, under an arrangement established by the

Minister administering an administrative unit of the Public Service, make use of the services or staff of that administrative unit.