Hansard debates

                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

 Page 4522


        (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