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12 March 1991 - Current

 
SMALL BUSINESS COMMISSIONER AMENDMENT BILL 2013
Page 4521
11 December 2013
ASSEMBLY Statement of Compatibility ASHER
                SMALL BUSINESS COMMISSIONER AMENDMENT BILL 2013
                           Statement of compatibility
Ms ASHER (Minister for Innovation, Services and Small Business) tabled following
statement in  accordance with Charter of  Human Rights and  Responsibilities Act
2006:
  In  accordance  with   section  28  of  the   Charter  of  Human  Rights   and
  Responsibilities  Act  2006   (charter   act),   I   make  this  statement  of
  compatibility with respect to the Small Business  Commissioner  Amendment Bill
  2013.

  In  my  opinion,  the  Small Business  Commissioner  Amendment Bill  2013,  as
  introduced to  the Legislative Assembly,  is compatible with  the human rights
  protected by the charter act. I  base my  opinion on  the reasons  outlined in
  this statement.
  Overview of bill
  The main purposes of this bill are to:
        (a) amend the functions and powers of the small business commissioner to
                promote the efficient investigation and resolution of commercial
                disputes involving small businesses;

        (b)  improve   alternative   dispute  resolution   services  for   small
                businesses,  particularly in  the  dealings of  those businesses
                with larger businesses and with government; and


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(c) confer powers on the small business commissioner to publish information relating to disputes in certain circumstances. Human rights issues Section 13 of the charter act provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with, and not to have his/her reputation unlawfully attacked. An interference with privacy and reputation will not be unlawful if it is permitted by a law that is accessible and precise. An interference with privacy will not be arbitrary if the restrictions it imposes are reasonable, just and proportionate to the end sought. Clause 7 of the bill inserts a new section 6A into the act. Section 6A provides a power for the commissioner to issue certificates certifying that alternative dispute resolution has failed to resolve a dispute. The certificates may also specify the details of a business or government party that has unreasonably refused to participate in alternative dispute resolution. The commissioner must give written notice that a party's details may be published prior to providing the services. If a party unreasonably fails to attend or participate, that party will be provided with another opportunity to do so. If a party has still not made reasonable endeavours to participate, the commissioner may issue a certificate verifying that the particular party has unreasonably refused to participate in alternative dispute resolution. A party will also be able to make submissions to the commissioner giving reasons why their details should not be published. Clause 11 of the bill provides that, having given the parties an opportunity to write to the commissioner giving reasons why their details should not be published, the commissioner may consider those reasons before publishing the details of the certificates in a report to the minister. That report may be published in hard copy format, as well as on a website. This measure has been proposed to encourage parties to resolve their disputes cooperatively and to facilitate improved reporting as to the outcome of alternative dispute resolution under the act. The details of the parties may specify the name of the business or government entity but should not include the names of the individual or individuals representing that business or government entity. When considering any written submissions, the commissioner may also consider whether the details of a sole trader should not be included, particularly if that information might be adverse to the reputation of the person in whose name the business is to continue to trade. Corporations are not defined as persons under the charter act, which does not apply to them. Finally, the bill may be relevant to the right to a fair hearing with respect to the commissioner's power to certify the outcome of disputes. Section 24(1) of the charter act provides that a party to a civil proceeding has the right to have a proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The bill does not restrict the right of any party to seek review of a decision by a court or tribunal and nor does the bill restrict or limit rights to access a court or tribunal to determine the relevant dispute. For the purpose of the Administrative Law Act 1978 (Vic.), the commissioner's decisions are reviewable. A certificate issued for the purpose of certifying whether a party has made reasonable endeavours to resolve a dispute will constitute prima facie evidence to a court or tribunal that the dispute was mediated, but such a certificate will not necessarily be conclusive evidence. Conclusion For the reasons given in this statement, I consider that the bill is compatible with the Charter of Human Rights and Responsibilities Act 2006. The Hon. Louise Asher, MP Minister for Innovation, Services and Small Business