Small Business Commissioner’s Bill 2011 – South Australia

 

The South Australian Small Business Commissioner’s Bill passed through South Australian Parliament on the weekend of 21 October and it will see the creation of a Small Business Commissioner to advocate on behalf of small business in that State. It will also see the introduction of a State based Franchising Code of Conduct, in conjunction with the National Code.

 

The Bill provides for the creation of a Small Business Commissioner, as well as a legislative framework for prescribing Mandatory Codes of Conduct under the South Australian Fair Trading Act.

 

The Bill which was opposed by the Franchise Council of Australia and the Liberal Party was passed with a minor amendment moved by the Family First Party.

 

The amendment requires that any changes to the Code of Conduct can only be made after consultation with the industry, in other words, submissions and consultations will need to be made as regards any introduction of a State based Mandatory Code of Practice for an industry such as Franchising.

 

The Bills sets out the functions of the Commissioner which include:

 

1. To receive and investigate complaints by or on behalf of small businesses/franchises regarding their commercial dealings with other businesses and to facilitate resolution such as mediation.

 

2. To administer industry codes of the Fair Trading Act 1987 and the Australian Consumer Law (SA) to the extent that responsibility for such administration is assigned to the Commissioner under the Fair Trading Act 1987.

 

3. To monitor, investigate and advise the Minister about non compliance with industry codes that made adversely affect small businesses/franchises and market practices that may adversely affect small businesses.

 

4. To take any other action considered appropriate by the Commissioner for the purpose of facilitating or encouraging the fair treatment of small businesses/franchises in their commercial dealings with other businesses.

 

The Commissioner shall perform the above functions with a view to the development and maintenance in South Australia of relationships between small business and other businesses that are based on dealings conducted fairly and in good faith.

 

The Bill provides for civil monetary penalties for breaches of prescribed codes of conduct under the Fair Trading Act and for civil expiation penalties, i.e. infringement notices or “on the spot” fines.