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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-14 Daily Xml
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SMALL BUSINESS COMMISSIONER BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (21:55): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In South Australia there are over 136,000 small businesses. These range from one person owner-operators through to medium sized firms. The Government recognises the significant contribution that these businesses make to employment in this State and to the continued economic success of the State. The development of a more competitive and fairer environment for small businesses in South Australia is a goal of the Government.

It is with great pleasure and pride that I introduce this Bill into the House. It establishes a Small Business Commissioner and confers functions on the Commissioner that are designed to facilitate the continued viability and expansion of the small business sector.

In developing this Bill the Government has taken into account the lessons learned from the successful model provided by the Victorian Small Business Commissioner, which has been noted by the Small Business Ministerial Council as a best practice approach. The Victorian Commissioner has been very successful in resolving disputes through mediation. Some 6,800 matters were handled between 2003 and 2010 with a success rate of 80 per cent or more. This is a substantial alleviation of the burden that may otherwise fall on the Courts and a benefit to businesses that may not otherwise pursue a complaint.

One of the principal roles of the Small Business Commissioner is to provide those business operators who have limited bargaining power, time and resources with the ability to access a timely, low cost dispute resolution service designed to avoid the costly litigation processes that currently exist. It is intended that the Small Business Commissioner will deal with disputes and complaints in a hands-on, proactive and commonsense way using a range of dispute resolution services including:

initial advice and preliminary assistance;

referrals to other available dispute resolution options;

investigation of the circumstances of a dispute in more detail as required;

arranging and facilitating conciliation, mediation or other alternative dispute resolution mechanisms as appropriate.

These are voluntary mechanisms with parties free to take ordinary legal proceedings at their option.

It is recognised that when there is a breakdown in a business relationship the effects will often go beyond the individual business concerned to the entire network of suppliers, operators, employees and sometimes family members. The services of the Small Business Commissioner will therefore be valuable not just to the businesses concerned but to those involved in the wider network.

Small businesses often feel powerless when dealing with State and local government bodies. To this end, the Small Business Commissioner is given the function of assisting small businesses on request in their dealings with such bodies. It is envisaged that businesses would make use of existing mechanisms but that the Commissioner would become involved in instances where the provision of assistance would be useful and likely to lead to a better outcome.

The Small Business Commissioner is also given a role in disseminating information to small businesses. The information might, for example, be about understanding the pitfalls faced by businesses, and the rights and obligations of businesses, when entering into contracts, leases and the like. The provision of appropriate information could be expected to encourage and support good commercial decision making and the practice of due diligence on the part of small businesses.

This Government understands the frustrations experienced by many people involved in small businesses when they feel powerless to deal with unfair practices of landlords, franchisors or other businesses that resort to unscrupulous practices. The Small Business Commissioner is to have the function of monitoring, investigating and advising the Minister about such practices. In addition, the Minister may request the Commissioner to report on any specified matter affecting small businesses and the Commissioner may, on the Commissioner's own initiative, report to the Minister on any aspect of the Commissioner's functions.

It is contemplated that the Commissioner will build relationships with the various industry sectors and work with key industry associations and key groups in developing strategies to promote fair dealing and proper conduct in particular sectors. It is envisaged that this may include the promulgation of appropriate industry codes and the administration of the codes by the Small Business Commissioner and the Bill amends the Fair Trading Act 1987 to that end. Consultation with stakeholders on a draft of the Bill disclosed a desire in some sectors for such an approach. In order to ensure that industry codes can be effectively enforced, the Bill introduces a scheme of civil penalties that may be applied to particular contraventions by the regulations.

Under the Bill, the Small Business Commissioner is also given specific responsibility for the administration of the Retail and Commercial Leases Act 1985. The Commissioner will have a role in the resolution of retail tenancy disputes and in promoting fairness between tenants and landlords in the important retail sector.

Enforcement powers and remedies relating to a contravention of a prescribed industry code or the Retail and Commercial Leases Act 1995 continue to be located in the Fair Trading Act 1987. The Commissioner is given a power to require provision of information necessary for the performance of the Commissioner's functions.

The Small Business Commissioner will be expected to provide independent advice and recommendations to Government. The Commissioner will investigate business complaints, review and provide comment on matters affecting small businesses, make submissions to relevant inquiries, and make representations to the Minister for Small Business on a range of matters. Over time it is expected that the Commissioner will be in a position to greatly assist the Minister for Small Business and the Government of the day with an evidence based analysis of key issues affecting small business.

The Bill expressly provides that the overarching objective of the Small Business Commissioner in the performance of the Commissioner's functions is 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.

To ensure the integrity of the position, the Small Business Commissioner will be a statutory officer. The Commissioner will be required under the Public Sector Act 2009 to produce an annual report which will be tabled in Parliament and is to be taken to be a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995.

In conclusion, this Bill evidences the Government's commitment to providing a fair and competitive environment for small businesses in this State.

I commend the Bill to the House.

Explanation of Clauses

1—Short title

This clause is formal.

2—Commencement

This clause provides for operation of the measure to commence on a day to be fixed by proclamation.

3—Interpretation

This clause provides definitions of three terms used in the Bill:

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

the Deputy is the Deputy Small Business Commissioner;

industry code has the same meaning as in Part 3A of the Fair Trading Act 1987. That is, an industry code is a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. The term 'industry code' is not limited to codes that have been prescribed for the purposes of the Fair Trading Act 1987 or another Act.

4—Small Business Commissioner

This clause provides that there will be a Small Business Commissioner who will be appointed by the Governor and is an agency of the Crown.

5—Functions

This clause sets out the Small Business Commissioner's functions as follows:

to receive and investigate complaints by or on behalf of small businesses regarding their commercial dealings with other businesses and to facilitate resolution of such complaints through measures considered appropriate by the Commissioner such as mediation or making representations on behalf of small businesses;

to assist small businesses on request in their dealings with State and local government bodies;

to disseminate information to small businesses to assist them in making decisions relevant to their commercial dealings with other businesses and their dealings with State and local government bodies;

to administer Part 3A of the Fair Trading Act 1987 (which relates to industry codes) and the Australian Consumer Law (SA) to the extent that responsibility for that administration is assigned to the Commissioner under the Fair Trading Act 1987;

to monitor, investigate and advise the Minister about—

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

market practices that may adversely affect small businesses;

to report to the Minister on matters affecting small businesses at the request of the Minister;

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

to take any other action considered appropriate by the Commissioner for the purpose of facilitating and encouraging the fair treatment of small businesses in their commercial dealings with other businesses or assisting small businesses in their dealings with State or local government bodies;

any other functions conferred on the Commissioner by or under the Small Business Commissioner Act 2011 or any other Act.

The clause also provides that the Commissioner is to perform his or her 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.

6—Ministerial direction

Clause 6 provides that the Minister may give directions to the Commissioner. However, a direction may not be given to the Commissioner by the Minister relating to the investigation, mediation or resolution of a particular complaint or dispute. The Minister is to consult with the Commissioner before giving a direction.

A Ministerial direction is to be communicated to the Commissioner in writing. There is also a requirement for a Ministerial direction to be included in the Commissioner's annual report.

7—Terms and conditions of appointment

Although the maximum term of appointment for the Commissioner is five years, a person will be eligible for reappointment at the end of a term. The Commissioner's conditions of appointment are to be determined by the Governor.

Under clause 7(2), the appointment of the Commissioner may be terminated by the Governor on any of the following grounds:

the Commissioner has been guilty of misconduct;

the Commissioner has been convicted of an offence punishable by imprisonment;

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

the Commissioner has been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth;

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

the Commissioner is incompetent or has neglected the duties of the position.

It is also provided that the appointment of the Commissioner is terminated if he or she becomes a member, or a candidate for election as a member, of an Australian Parliament or Legislative Assembly. The appointment will also be terminated if the Commissioner is sentenced to imprisonment for an offence.

8—Deputy and Acting Commissioner

A person may be appointed by the Minister to be the Deputy Small Business Commissioner. That person may be a public servant. The Deputy may act as the Commissioner if no person is appointed as the Commissioner or when the Commissioner is absent from, or unable to discharge, official duties. When the Deputy is not acting as the Commissioner, he or she may perform functions or exercise powers of the Commissioner by delegation from the Commissioner.

A person may be appointed by the Minister to act as the Commissioner if—

there is no person appointed as the Commissioner, or the Commissioner is absent from, or unable to discharge, official duties; and

there is no person appointed as the Deputy, or the Deputy is absent from, or unable to discharge, official duties.

9—Honesty and accountability

This clause applies the provisions of the Public Sector (Honesty and Accountability) Act 1995 relating to the honesty and accountability of senior officials to the Commissioner, the Deputy and any other person appointed to act as the Commissioner.

10—Staff etc

The Commissioner's staff consists of Public Service employees assigned to assist the Commissioner in addition to persons employed by the Commissioner. Such persons are to be employed with the consent of the Minister to assist the Commissioner.

This clause also provides that the Commissioner may make use of the services or staff of an administrative unit of the Public Service under an arrangement established by the Minister administering the unit.

11—Delegation

This clause authorises the Commissioner to delegate a function or power under the Small Business Commissioner Act 2011 or any other Act, other than a prescribed function or power. A function or power cannot be delegated to a person who is not a Public Service employee without the consent of the Minister.

A delegation—

is to be by instrument in writing; and

may be absolute or conditional; and

does not derogate from the power of the delegator to act in a matter; and

is revocable at will.

12—Power to require information

Under this clause, the Commissioner can require a person to give the Commissioner information in the person's possession that the Commissioner requires for the performance of his or her functions. The requirement is to be made by written notice served personally or by post. The notice must specify a reasonable time for compliance with the requirement.

If a person who is required to give information fails to do so within the time stated in the notice, he or she is guilty of an offence. The maximum penalty is a fine of $20,000.

A person cannot be compelled to give information under the clause if the information might tend to incriminate him or her of an offence or if the information is privileged on the ground of legal professional privilege.

13—Confidentiality

This clause prohibits a person from divulging or communicating personal information, information relating to trade secrets or business processes or financial information if the information is acquired by reason of being, or having been, employed or engaged in, or in connection with, the administration of the Small Business Commissioner Act 2011. However, such information can be divulged or communicated—

with the consent of the person to whom it relates; or

as authorised by the Commissioner or the person's employer; or

in connection with the administration of the Act; or

to a police officer or a member of the police force of another State, a Territory or the Commonwealth; or

to a person concerned in the administration of another law of the State, or a law of another State, a Territory or the Commonwealth relating to trade or commercial practices or the protection of consumers; or

for the purposes of legal proceedings.

The maximum penalty is a fine of $20,000.

14—Regulations

This clause authorises the making of regulations that are contemplated by, or necessary or expedient for the purposes of, the Act. The regulations may fix fees in respect of measures designed to resolve a complaint taken by the Commissioner. The regulations may also provide for the payment, recovery or waiver of fees.

Schedule 1—Associated amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Fair Trading Act 1987

2—Amendment of long title

This clause substitutes a new long title for the Fair Trading Act 1987. The proposed long title states that the Act is to—

provide for the appointment and functions of the Commissioner for Consumer Affairs;

provide for the administration of certain aspects of the Fair Trading Act 1987 by the Small Business Commissioner;

apply the Australian Consumer Law as a law of South Australia;

make provision for industry codes;

otherwise regulate unfair or undesirable practices affecting business and other consumers.

3—Amendment of section 3—Interpretation

This clause amends the interpretation provision of the Fair Trading Act 1987 by inserting new definitions of Commissioner for Consumer Affairs and Small Business Commissioner. A new definition of contravene is also inserted. This definition makes it clear that a contravention includes a failure to comply. Other changes to definitions are consequential.

Subsection (3) currently allows the regulations to exclude a person or class of persons from the ambit of the definition of consumer for the purposes of the Act. This clause amends the subsection to make it clear that a person or class can be excluded from specified provisions of the Act rather than the Act as a whole. (An exclusion from the definition does not apply in relation to the Australian Consumer Law (SA).)

4—Insertion of section 4B

This clause inserts a new section.

4B—Administration of Act

Proposed section 4B deals with the administration of the Fair Trading Act 1987 and provides that the Commissioner for Consumer Affairs is responsible for the administration of the Act. This includes the Australian Consumer Law (SA) (the ACL). However, because aspects of the ACL relate to business consumers, the section also allows for the Small Business Commissioner to administer the ACL to the extent specified by the Minister for Consumer Affairs by notice in the Gazette. A notice is to be made on the recommendation of the Minister responsible for the administration of the Small Business Commissioner Act 2011.

The Small Business Commissioner is to be responsible for the administration of Part 3A of the Act in relation to an industry code or provisions of an industry code if the regulations declare that the Commissioner is to have that responsibility. Under Part 3A, an industry code or the provisions of an industry code may be prescribed by regulation for the purposes of the Part. The regulations are also to declare whether the Commissioner for Consumer Affairs or the Small Business Commissioner is to be responsible for the administration of the Part in relation to the code or provisions.

The Small Business Commissioner may only be assigned responsibility for administration of the ACL or an industry code insofar as the ACL or code applies to persons who acquire or propose to acquire goods or services for the purpose of trade or commerce, or insofar as the ACL or code regulates the conduct of traders towards other traders.

Proposed section 4B also makes it clear that, to the extent that the Commissioner for Consumer Affairs is responsible for the administration of the Fair Trading Act 1987, he or she is subject to the direction of the Minister to whom responsibility for administration of that Act is committed. To the extent that the Small Business Commissioner is responsible for the administration of the Fair Trading Act 1987, he or she is subject to direction by the Minister to whom the administration of the Small Business Commissioner Act 2011 is committed.

5—Substitution of heading to Part 2

This clause substitutes a new heading for Part 2 to reflect the fact that administration of the Act is to be dealt with in new section 4B while Part 2 is to deal with matters relating exclusively to the Commissioner for Consumer Affairs.

6—Repeal of sections 6 and 7

Section 6, which relates to the administration of the Act, is to be repealed because administration is the subject of proposed section 4B.

Section 7, which relates to the appointment of authorised officers, is to be repealed because the Bill proposes the insertion of a new section relating to authorised officers into Part 7 (Enforcement and remedies)—see clause 24.

7—Amendment of section 8—Functions of Commissioner for Consumer Affairs

8—Amendment of section 8A—Conciliation

9—Amendment of section 9—Co-operation

10—Amendment of section 10—Delegations

The purpose of the consequential amendments made by these clauses is to make it clear that references to the Commissioner in the amended sections are references to the Commissioner for Consumer Affairs.

11—Repeal of section 11

This clause repeals section 11, which relates to confidentiality, because the Bill proposes the insertion of a new confidentiality provision—see clause 32.

12—Amendment of section 12—Annual report

The amendments to section 12 make it clear that the annual reporting requirements under the section apply to the Commissioner for Consumer Affairs.

13—Amendment of section 16—Meaning of generic terms used in Australian Consumer Law

This clause substitutes a new definition of regulator for the purposes of the ACL. Under the new definition, the regulator continues to be the Commissioner for Consumer Affairs. However, if the Small Business Commissioner is responsible for the administration of any aspect of the ACL, the Small Business Commissioner is also the regulator.

14—Insertion of Part 3A

Part 3A, inserted by this clause, relates to the prescription of industry codes by regulation.

Part 3A—Industry codes

28D—Interpretation

An industry code, for the purposes of Part 3A, is a code regulating the conduct of participants in an industry towards other participants in the industry or towards persons to whom goods or services are or may be supplied by participants in the industry.

28E—Contravention of industry codes

Proposed section 28E provides that a person must not, in trade or commerce, contravene a prescribed industry code or a prescribed provision of an industry code.

28F—Regulations relating to industry codes

Under proposed section 28F, an industry code, or provisions of an industry code, may be prescribed by regulation for the purposes of the Part. The regulations may also declare whether the Commissioner for Consumer Affairs or the Small Business Commissioner is to be responsible for the administration of the code or provisions.

The regulations may also—

declare that a contravention of section 28E of a particular class is to be subject to a civil penalty under Part 7 Division 3A (to be inserted by clause 28); and

fix expiation fees for alleged civil penalty contraventions within the meaning of Part 7 Division 3A.

The maximum civil expiation fees are $6,000 for a body corporate and $1,200 for a natural person.

A specified activity may be declared by the regulations to be taken to be an industry for the purposes of Part 3A, and persons of a specified class may be declared to be taken to be participants in the industry.

It is made clear in the section that a proposal for regulations under the section may be initiated by either the Minister responsible for the administration of the Fair Trading Act 1987 or the Minister responsible for the administration of the Small Business Commissioner Act 2011. If the Commissioner for Consumer Affairs is to be responsible for the administration of Part 3A in relation to a prescribed code or provisions, the proposal may be initiated by the Minister responsible for the administration of the Fair Trading Act 1987. If the Small Business Commissioner is to be responsible for the administration of Part 3A in relation to a prescribed code or provisions, the proposal may be initiated by the Minister responsible for the administration of the Small Business Commissioner Act 2011.

15—Amendment of section 36—Offences

This amendment is consequential on the insertion of a definition of contravene into section 3.

16—Amendment of section 37—Powers of District Court

17—Amendment of section 41—Advertisements must not state or imply approval of consumer affairs authority

18—Amendment of section 42—Recreational services

19—Amendment of section 45A—Power of Minister to prohibit third-party trading schemes

The amendments made by these clauses are consequential. References to 'the Commissioner' are amended so that the sections as amended refer to the Commissioner for Consumer Affairs.

20—Substitution of heading to Part 7

The heading to Part 7 currently refers only to enforcement. The substituted heading refers also to remedies and therefore better reflects the contents of the Part.

21—Insertion of Part 7 Division A1

This clause inserts a new Division.

Division A1—Interpretation

46—Interpretation

Proposed section 46 provides definitions of the terms Commissioner and Minister that apply for the purposes of Part 7. A reference in the Part to the Commissioner is a reference to the Commissioner for Consumer Affairs or the Small Business Commissioner. 'Minister' means the Minister responsible for the administration of the Fair Trading Act 1987 or the Minister responsible for the administration of the Small Business Commissioner Act 2011.

22—Substitution of heading to Part 7 Division 1

This clause substitutes a new heading for Division 1 of Part 7. The new heading, which is 'Legal proceedings and warnings', more accurately reflects the contents of the Division.

23—Redesignation of section 76—Conduct of legal proceedings on behalf of consumers

Section 76 of the Act, which authorises the Commissioner to conduct legal proceedings on behalf of a consumer, is redesignated by this clause as section 47.

24—Insertion of Part 7 Division 1A heading and section 76

This clause inserts a new Division heading and a section dealing with the appointment of authorised officers.

Division 1A—Authorised officers

76—Authorised officers

Under proposed section 76, the Commissioner for Consumer Affairs, the Small Business Commissioner, the Deputy Small Business Commissioner and persons appointed under the section are authorised officers for the purposes of the Act.

Public service employees may be appointed to be authorised officers by the Minister responsible for the administration of the Fair Trading Act 1987 or the Minister responsible for the administration of the Small Business Commissioner Act 2011. Other persons employed by the Small Business Commissioner may also be appointed to be authorised officers.

An appointment may be subject to specified conditions and may be revoked at any time by the relevant Minister.

It is a requirement of the section that an authorised officer be issued with an identity card, which must be produced by the officer at the request of a person in relation to whom the officer intends to exercise powers under the Act.

25—Amendment of section 78—Entry and inspection

Section 78(4) is redundant because of new section 76 and is therefore deleted by this clause.

26—Amendment of section 80—Registration of deeds of assurance

Section 80 as amended by this clause will require each Commissioner to maintain a register of assurances accepted by him or her.

27—Amendment of heading to Part 7 Division 3

The heading to Division 3 of Part 7 as amended by this clause will more accurately reflect the contents of the Division. The heading currently refers only to contraventions of the Fair Trading Act 1987 despite the fact that section 83 (Injunctions) also applies in relation to contraventions of related Acts.

28—Insertion of Part 7 Division 3A

This clause inserts a new Division into Part 7 of the Act. Division 3A deals with civil penalties and civil expiation notices in relation to industry codes.

Division 3A—Civil penalties and civil expiation notices for contravention of industry codes

Subdivision 1—Interpretation

86A—Interpretation

Proposed section 86A provides that a person commits a civil penalty contravention if the person contravenes section 28E and the contravention is of a class declared by regulation to be subject to a civil penalty. A person also commits a civil penalty contravention by attempting or being involved in such a contravention.

Subdivision 2—Civil penalties

86B—Civil penalties

Proposed section 86B provides for the making of civil penalty orders by the Magistrates Court. A civil penalty order may be made by the Court if it is satisfied that a person has committed a civil penalty contravention. The Court may order the person to pay an amount not exceeding $50,000 in the case of a body corporate or $10,000 in the case of a natural person. Currently, the maximum penalty allowed under the Act for contravention of a code of practice is the maximum that can be imposed for contravention of a regulation, that is, $2,500.

Proceedings for a civil penalty order may be commenced by the Commissioner by application to the Court made within three years after the date of the alleged civil penalty contravention.

The proposed section lists matters to which the Court is to have regard in determining the amount to be paid by a person as a civil penalty. Those matters are—

the nature and extent of the contravention and any loss or damage suffered as a result of the contravention;

the circumstances in which the contravention was committed;

any financial saving or other benefit that the person stood to gain by committing the contravention;

whether the person has previously been found by a court in proceedings under this Act to have committed similar contraventions;

any other matter the Court considers relevant.

The proposed section also provides that if conduct constitutes two or more civil penalty contraventions, an amount may be recovered from the person in relation to any one or more of the contraventions. However, the person is not liable to pay more than one amount as a civil penalty in respect of the same conduct.

Subsections (5) and (6) provide defences. Under subsection (5), a person will not be liable to a civil penalty if he or she establishes facts and circumstances that would have amounted to a defence under section 88 had the civil penalty contravention constituted an offence against the Act. Section 88 provides a defence where a contravention was due to a reasonable mistake or reasonable reliance on information supplied by another person. A defence is also available under section 88 if a contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control and the defendant took reasonable precautions and exercised due diligence to avoid the contravention. Section 88 contains various other relevant provisions.

Subsection (6) provides that if the Court is satisfied that a natural person acted honestly and reasonably and ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to a civil penalty.

Subdivision 3—Civil expiation notices

86C—Certain civil penalty contraventions may be expiated

Proposed section 86C provides for the giving of civil expiation notices to persons alleged to have committed a civil penalty contravention if the regulations fix an expiation fee for the contravention. If a civil expiation notice is given to a person, the contravention may be expiated in accordance with Subdivision 3.

86D—Civil expiation notices

Proposed section 86D sets out certain rules and requirements relating to civil expiation notices:

a civil expiation notice may only be given to a person by the Commissioner or by an authorised officer authorised in writing by the Commissioner;

a civil expiation notice may relate to up to three alleged civil penalty contraventions arising out of the same incident, cannot be given more than 12 months after the date on which the civil penalty contravention or contraventions were alleged to have occurred and cannot be given to a person if proceedings have been commenced against the person for a civil penalty order;

if a civil expiation notice is given to a person alleged to have committed a civil penalty contravention, no further civil expiation notice can be given to the person in respect of any other alleged civil penalty contravention arising out of the same incident;

a civil expiation notice is to—

be identified by a unique number; and

state the date of the notice; and

state the name and address of the person to whom it is given; and

state that the notice is given on behalf of the Commissioner; and

state how the Commissioner may be contacted; and

give details of the civil penalty contravention or contraventions allegedly committed by the person, including the date of the alleged contravention or contraventions; and

state the maximum civil penalty that the person could be ordered to pay in respect of the alleged civil penalty contravention or contraventions; and

specify the expiation fee that is payable in relation to the alleged civil penalty contravention or each alleged contravention; and

state that the expiation fee is to be paid within 28 days from (and including) the date of the notice; and

state that the expiation fee is payable to the Commissioner; and

explain how payment of the expiation fee is to be made; and

include any information prescribed by the regulations.

86E—Late payment

Proposed section 86E authorises the Commissioner to accept late payment of an expiation fee any time before proceedings are commenced for a civil penalty order for the alleged contravention to which the payment relates.

86F—Effect of expiation

Proposed section 86F sets out the effect of expiation. If a civil penalty contravention to which a civil expiation notice relates is expiated, proceedings cannot be commenced against the person to whom the notice was given for the contravention or any other expiable civil penalty contravention arising out of the same incident.

Importantly, the section makes it clear that the expiation of a civil penalty contravention does not constitute an admission of guilt or of any civil liability. Moreover, expiation of a civil penalty contravention will not be regarded as evidence tending to establish guilt or any civil liability. Expiation of a civil penalty contravention cannot be referred to in a report furnished to a court for the purposes of determining sentence for an offence.

86G—Commencement of proceedings if expiation fee not paid

Proposed section 86G provides that proceedings for a civil penalty order may be commenced against a person for a contravention that has not been expiated in accordance with the Subdivision.

86H—Withdrawal of civil expiation notices

This proposed section authorises the Commissioner to withdraw a civil expiation notice with respect to all or any of the alleged civil penalty contraventions to which the notice relates if—

the Commissioner is of the opinion that the person to whom the notice was given did not commit the contravention or contraventions or that the notice should not have been given for the contravention or contraventions; or

the notice is defective; or

the Commissioner decides that proceedings should be commenced for a civil penalty order against the person for the contravention or contraventions.

Subsection (2) provides that a civil expiation notice may be withdrawn despite payment of a civil expiation fee. If this occurs, the amount paid must be refunded. However, if an expiation fee has been paid for a contravention and the period of 60 days from the date of the notice has expired, the notice cannot be withdrawn for the purposes of commencing proceedings for a civil penalty order.

The fact that a person has paid a civil expiation fee in relation to a civil expiation notice that has subsequently been withdrawn is not admissible as evidence against a person in proceedings for a civil penalty order for a civil penalty contravention to which the notice related.

The Commissioner is required under subsection (5) to withdraw a civil expiation notice if it becomes apparent that the person to whom the notice was given did not receive the notice until after the period for payment of the expiation fee, or has never received it, as a result of error on the part of the Commissioner or failure of the postal system. However, a civil expiation notice cannot be withdrawn if the expiation fee has been paid or proceedings have been commenced for a civil penalty order against the person to whom the notice was given.

There is a requirement for a notice of withdrawal to specify the reason for the withdrawal. The notice must also include any information required by the regulations.

If a civil expiation notice has been withdrawn by the Commissioner and the notice of withdrawal does not specify that the notice is withdrawn for the purposes of commencing proceedings for a civil penalty order against the person, proceedings can be commenced for a civil penalty order only if the person has been given a fresh civil expiation notice and allowed the opportunity to expiate the contravention.

86I—Service of civil expiation notice or withdrawal notice

Proposed section 86I sets out the requirements for service of a civil expiation notice or a withdrawal notice.

29—Redesignation of section 86A—Application of Division

This clause redesignates section 86A as section 86J.

30—Redesignation and amendment of sections 91A and 91B

Under section 91A, which is to be redesignated by this clause as section 48, the Minister or the Commissioner may issue public warning statements. This clause amends the section so that a public warning statement can be issued about conduct that the Commissioner has reasonable grounds to suspect may constitute a civil penalty contravention for the purposes of Division 3A that has resulted in or is likely to result in one or more persons suffering detriment.

A consequential amendment is also made to section 91B, which is to be redesignated as section 49.

31—Redesignation of sections 93, 93A and 94

This clause redesignates sections 93, 93A and 94 as sections 78D, 78E and 78F respectively.

32—Insertion of section 96A

This clause proposes the insertion of two new sections.

96A—Confidentiality

Proposed section 96A prohibits a person from divulging or communicating personal information, information relating to trade secrets or business processes or financial information acquired by reason of being, or having been, employed or engaged in, or in connection with, the administration of the Fair Trading Act 1987 or a related Act. The section includes exceptions to this prohibition, allowing information to be disclosed—

with the consent of the person to whom the information relates; or

as authorised by the Commissioner for Consumer Affairs or the Small Business Commissioner or the person's employer; or

in connection with the administration of the Fair Trading Act 1987 or a related Act; or

to a police officer or a member of the police force of another State, a Territory of the Commonwealth or the Commonwealth; or

to a person concerned in the administration of another law of the State, or a law of another State, a Territory of the Commonwealth or the Commonwealth, relating to trade or commercial practices or the protection of consumers; or

for the purposes of legal proceedings.

The maximum penalty is a fine of $20,000.

96B—Delegation by Minister responsible for administration of Small Business Commissioner Act

Proposed section 96B authorises the Minister responsible for the administration of the Small Business Commissioner Act 2011 to delegate a function or power under the Fair Trading Act 1987 (except a prescribed function or power).

33—Amendment of section 97—Regulations

This clause amends section 97 to enable regulations to be made fixing fees in respect of any matter under the Act and providing for their payment, recovery or waiver.

A provision of the section that authorises the prescription of codes of practice is to be deleted by this clause because proposed Part 3A will allow for the prescription of industry codes.

Currently, section 97 allows the regulations to fix expiation fees up to a maximum of $1,200 for alleged offences against the Act or the regulations. As amended, the maximum expiation fee for an offence against the Act will continue to be $1,200 but the maximum expiation fee for offences against the regulations will be $210. This does not affect the power under section 28F for the regulations to fix expiation fees.

A new subsection inserted by this clause will provide that if a document formulated or published by any body or authority as in force at a particular time or from time to time is incorporated, adopted, applied or referred to in the regulations—

a copy of the document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and

evidence of the contents of the document may be given in any legal proceedings by production of a document apparently certified by the Minister or the Minister responsible for the administration of the Small Business Commissioner Act 2011 to be a true copy of the document.

Part 3—Amendment of Retail and Commercial Leases Act 1995

34—Amendment of section 3—Interpretation

This amendment to the Retail and Commercial Leases Act 1995 has the effect of making the Small Business Commissioner responsible for the administration of the Act.

35—Repeal of section 8

This clause repeals section 8, which relates to Ministerial control and direction. The section is not required because section 6 of the Small Business Commissioner Act 2011 deals with direction of the Commissioner by the Minister.

36—Amendment of section 78—Annual reports

This amendment is consequential.

Part 4—Transitional provisions

37—Provisions relating to Fair Trading Act 1987

The transitional provisions provide that—

a person holding office as an authorised officer under section 7 of the Fair Trading Act 1987 will continue to hold office as an authorised officer as if the person had been appointed by the Minister responsible for the administration of that Act under section 76 of that Act as amended; and

a code of practice prescribed by the regulations under the Fair Trading Act 1987 will be taken to have been prescribed as an industry code under Part 3A of that Act as amended by this Act and the Commissioner for Consumer Affairs will be taken to have been declared to be responsible for the administration of the code.

Debate adjourned on motion of Hon. S.G. Wade.


At 21:56 the council adjourned until Thursday 15 September 2011 at 14:15.


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