NSW Opposition outlines details for small business commissioner role

NSW shadow small business minister Adam Searle has delivered a second reading of his Small Business Commissioner Bill, outlining further details about the scope of the proposed role.

Searle introduced the bill into State Parliament in May after accusing the NSW Government of failing to draft legislation for its small business commissioner role.

In July 2011, the NSW Government appointed former ACCC associate commissioner Yasmin King as the state’s first small business commissioner.

King is responsible for protecting the rights of NSW small businesses by providing a low-cost dispute-resolution mechanism.

But according to Searle, the O’Farrell government has “failed to deliver” with regard to legislation for the role of the commissioner.

In response, Searle introduced the Small Business Commissioner and Small Business Protection Bill 2012, which provides measures to protect small business from unfair commercial practices.

According to Searle, it also provides a comprehensive legal framework for the role and functions of the small business commissioner.

The bill was released for consultation with the small business community. Now, Searle has delivered a second reading of the bill.

At the second reading, a speech is given by the minister putting forward the bill. The second reading speech is particularly important as it offers additional details of the purpose of the bill.

StartupSmart obtained a copy of Searle’s second reading speech. According to Searle, the bill seeks to achieve three aims:

• To provide a proper, effective legal foundation for the small business commissioner, which would allow the commissioner to “act independently and with confidence”.

• To create a flexible legal architecture to ensure small businesses are treated fairly by other businesses, and by state and local government bodies.

• To confer on small businesses additional legal rights.

“Existing protections or rights for small business, whether arising at common law or under various statutes made by Parliament, are… not adequate or not readily available to small businesses,” Searle said.

“For example, fair trading and trade practices legislation is designed to protect consumers.”

Searle also flagged concerns within the franchising sector.

“A number of former franchise owners said they had been put out of business by the inherently unfair and unworkable franchise arrangements imposed on them on a ‘take it or leave it’ basis,’ Searle said.

“They also said that if legislation such as this had been in place, they would still have their businesses as they would have had backup and remedies available to them.”

The bill constitutes the office of the commissioner as an independent statutory officer.

“This will ensure that the role is independent. Often, the commissioner will need to address unsatisfactory government performances,” Searle said.

“There needs to be that independence if there is to be public confidence that the role will be properly fulfilled. It is not just good enough to have a public servant in the role.”

In addition to helping small businesses in their dealings with other businesses and government agencies, Searle said the commissioner will also disseminate information to small businesses.

“The commissioner also will have the responsibility of administering any codes of practice and will monitor, investigate and advise the minister about non-compliance with codes of practice,” he said.