AUSTRALIAN SMALL BUSINESS AND FAMILY ENTERPRISE OMBUDSMAN BILL 2015

2013-2014-2015

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Australian Small Business and Family

Enterprise Ombudsman Bill 2015

No. , 2015

(Treasury)

A Bill for an Act to establish the Australian Small

Business and Family Enterprise Ombudsman, and

for related purposes

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Contents

Part 1--Preliminary

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Simplified outline of this Act ............................................................. 2

Definitions ......................................................................................... 4

Meaning of small business ................................................................. 5

Meaning of family enterprise ............................................................. 6

Meaning of action .............................................................................. 6

Meaning of agency of the Commonwealth, a State or a

Territory ............................................................................................. 6

Meaning of confidential information ................................................. 7

Act binds the Crown .......................................................................... 8

Extension to Territories ..................................................................... 8

Part 2--Australian Small Business and Family Enterprise

Ombudsman

Division 1--Establishment and functions and powers of the

Australian Small Business and Family Enterprise

Ombudsman

Establishment ..................................................................................... 9

Functions of the Ombudsman ............................................................ 9

The advocacy function ....................................................................... 9

The assistance function .................................................................... 10

General policy guidelines ................................................................ 10

Flexibility and range of working methods in performance of

the Ombudsman's functions ............................................................ 11

Ombudsman's powers ...................................................................... 11

Delegation by the Ombudsman ........................................................ 12

Directions from the Minister ............................................................ 12

Minister may require reports ............................................................ 12

Ombudsman is an official for the purposes of the finance law ........ 13

Annual report ................................................................................... 13

Division 2--Appointment and terms and conditions of the

Australian Small Business and Family Enterprise

Ombudsman

Appointment .................................................................................... 15

Remuneration ................................................................................... 15

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Leave of absence .............................................................................. 16

Outside work .................................................................................... 16

Resignation ...................................................................................... 16

Disclosure of interests ...................................................................... 16

Termination of appointment ............................................................ 17

Other terms and conditions .............................................................. 18

Acting appointments ........................................................................ 18

Division 3--Persons assisting the Australian Small Business and

Family Enterprise Ombudsman

Staff ................................................................................................. 19

Consultants ...................................................................................... 19

Part 3--Advocating for small businesses and family enterprises

Division 1--Preliminary

Constitutional connection--meaning of relevant legislation,

policies and practices ...................................................................... 20

Division 2--Research and inquiries on Ombudsman's own

initiative

Research and inquiries ..................................................................... 22

Notice to person to provide information and documents ................. 22

Documents produced in relation to research or inquiry ................... 23

Limitation on powers ....................................................................... 23

Reports to the Minister .................................................................... 23

Minister may publish Ombudsman's report ..................................... 24

Division 3--Minister may refer matter to Ombudsman for

inquiry

Subdivision A--Referral by Minister

Minister may refer a matter for inquiry ........................................... 26

Subdivision B--Notice of inquiry

Notice of inquiry .............................................................................. 27

Subdivision C--Hearings

Application of this Subdivision ....................................................... 27

Notice of hearings ............................................................................ 27

Procedure at hearings ....................................................................... 27

Notice to person to provide information and documents ................. 28

Summons to person to attend hearing .............................................. 28

Refusal to answer questions or produce documents ........................ 29

Documents produced in relation to inquiry ...................................... 29

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Allowances to witnesses .................................................................. 30

Restrictions on publication of evidence ........................................... 30

Written statements etc. to be made public ....................................... 30

Limitation on powers ....................................................................... 31

Subdivision D--Report of inquiry

Ombudsman must prepare a report on the inquiry ........................... 31

Report of inquiry to be tabled .......................................................... 31

Division 4--Providing advice to the Minister

Minister may refer a matter for advice ............................................. 33

Minister may publish Ombudsman's advice .................................... 33

Division 5--National strategies

Working co-operatively with Commonwealth, State and

Territory agencies ............................................................................ 35

Secretariat services and research services ........................................ 35

Division 6--Other advocacy functions

Contributing to inquiries into relevant legislation, policies

and practices .................................................................................... 36

Reviewing proposals relating to relevant legislation, policies

and practices .................................................................................... 36

Minister may publish advice given as a result of a review .............. 37

Promoting best practice ................................................................... 38

Part 4--Assisting a small business or family enterprise

Division 1--Preliminary

Constitutional connection--meaning of relevant action ................. 40

Division 2--Responding to requests for assistance

Requests for assistance .................................................................... 42

Circumstances in which Ombudsman authorised to deal with

a request for assistance .................................................................... 42

Circumstances in which Ombudsman may decide not to

provide assistance ............................................................................ 43

Circumstances in which the Ombudsman must transfer a

request for assistance to another agency .......................................... 44

Circumstances in which the Ombudsman may work

co-operatively with another agency to give assistance .................... 46

Division 3--Assistance in a dispute

Ombudsman may recommend alternative dispute resolution

process ............................................................................................. 48

List of alternative dispute resolution providers ................................ 49

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Alternative dispute resolution processes not to be conducted

by the Ombudsman .......................................................................... 49

Publishing failure to participate in alternative dispute

resolution process ............................................................................ 50

Division 4--Gathering information about requests for assistance

Inquiries in relation to a request for assistance ................................ 51

Notice to person to provide information and documents ................. 51

Documents produced in relation to inquiry ...................................... 52

Limitation on powers ....................................................................... 53

Part 5--General requirements

Division 1--Concurrent operation of State Law

Concurrent operation of State law ................................................... 54

Division 2--Secrecy

Meaning of protected information ................................................... 55

Meaning of person assisting small business/family enterprise ........ 55

Use or disclosure of protected information ...................................... 55

Disclosure or use for the purposes of this Act ................................. 56

Disclosure to the Minister ................................................................ 56

Disclosure to the Secretary etc. ........................................................ 57

Disclosure to certain agencies, bodies and persons ......................... 57

Disclosure with consent ................................................................... 58

Disclosure to reduce threat to life or health ..................................... 59

Disclosure of publicly available information ................................... 59

Disclosure of summaries or statistics ............................................... 59

Disclosure for purposes of law enforcement and national

security ............................................................................................. 59

Division 3--Review of decisions

Review by the Administrative Appeals Tribunal ............................. 62

Division 4--Other matters

Privileges not abrogated ................................................................... 63

Provisions of other Acts in relation to information and

documents ........................................................................................ 63

Review of assistance function .......................................................... 63

Legislative instrument ...................................................................... 64

Part 1 Preliminary

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2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Simplified outline of this Act

There is to be an Australian Small Business and Family Enterprise

Ombudsman.

The Ombudsman has an advocacy function and an assistance

function.

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Under the advocacy function, the Ombudsman:

•

undertakes research and inquiries into legislation, policies and

practices affecting small businesses and family enterprises;

•

reports and gives advice to the Minister on those matters;

•

contributes to inquiries by others into those matters;

•

contributes to developing national strategies on those matters;

•

reviews proposals relating to those matters and advises the

Minister on them;

•

promotes best practice in dealing with small businesses and

family enterprises.

Under the assistance function, the Ombudsman responds to

requests for assistance by an operator of a small business or family

enterprise. The Ombudsman will not duplicate the operations of

other agencies. The Ombudsman must transfer a request for

assistance to another Commonwealth, State or Territory agency, if

that agency could deal with the request and it would be more

effective and convenient for that agency to do so. The Ombudsman

may also work co-operatively with other agencies of the

Commonwealth, the States and the Territories if it is more

convenient and effective to do so.

The assistance requested may relate to a dispute with another

entity. In that case, the Ombudsman may recommend that an

alternative dispute resolution process be undertaken. If an entity

does not undertake that process, or withdraws from that process,

the Ombudsman may publish that fact. The Ombudsman may keep

a list of alternative dispute resolution providers, to assist small

businesses and family enterprises in accessing alternative dispute

resolution.

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To assist the Ombudsman in carrying out the Ombudsman's

functions, the Ombudsman has information-gathering powers.

Where the Minister directs the Ombudsman to inquire into a

matter, this includes the power to conduct, and take evidence in,

hearings.

4 Definitions

In this Act:

action has a meaning affected by section 7.

advocacy function: see sections 13 and 14.

agency: see section 8.

alternative dispute resolution processes means procedures and

services for the resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(d) case appraisal; and

(e) conciliation; and

(f) prescribed procedures or services;

but does not include:

(g) arbitration; or

(h) court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of

this definition.

assistance function: see sections 13 and 15.

Australia, when used in a geographical sense, includes the external

Territories.

confidential: see section 9.

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constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

enterprise includes a business, activity, project, undertaking or

arrangement.

family enterprise: see section 6.

formal request: see subsection 66(5).

Ombudsman means the Australian Small Business and Family

Enterprise Ombudsman.

paid work means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

person assisting small business/family enterprise: see section 81.

prescribed means prescribed by legislative instrument under

section 96.

protected information: see section 80.

quarter means a period of 3 months starting on 1 January, 1 April,

1 July or 1 October.

relevant action: see section 65.

relevant legislation, policies and practices: see section 35.

small business: see section 5.

5 Meaning of small business

(1) A business is a small business at a particular time in a financial

year (the current year) if:

(a) it has fewer than 100 employees at that time; or

(b) either:

(i) its revenue for the previous financial year is $5,000,000

or less; or

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(ii) if there was no time in the previous financial year when

the business was carried on--its revenue for the current

year is $5,000,000 or less.

(2) For the purposes of this section, business includes an enterprise,

activity, project, undertaking or arrangement.

(3) In counting employees for the purposes of the definition of small

business in subsection (1), take part-time employees into account

as an appropriate fraction of a full-time equivalent.

(4) Revenue is to be calculated for the purposes of this section in

accordance with accounting standards in force at the relevant time.

6 Meaning of family enterprise

A small business operated as a family enterprise is a family

enterprise for the purposes of this Act.

7 Meaning of action

A reference to the taking of action includes a reference to:

(a) an activity or series of activities; and

(b) a project, development or undertaking; and

(d) formulating a proposal; and

(e) requiring that communications with an entity be in a

particular manner or form; and

(f) an alteration of any of the things, including decisions,

proposals and requirements, mentioned in paragraphs (a) to

(e); and

(g) failure or refusal to do any of the things mentioned in

paragraphs (a) to (f).

8 Meaning of agency of the Commonwealth, a State or a Territory

(1) A body is an agency of the Commonwealth if the body is one of

the following:

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(a) a Department of State of the Commonwealth;

(b) an agency, authority or body (whether incorporated or not)

established for a public purpose by or under a law of the

Commonwealth;

the Commonwealth;

(d) a body (whether incorporated or not) prescribed for the

purposes of this paragraph.

(2) A body is an agency of a State or a Territory if the body is one of

the following:

(a) a Department of State of the State or the Territory;

(b) a local government body of the State or the Territory;

not) established for a public purpose by or under a law of the

State or the Territory;

(d) a person holding office, or exercising power, under a law of

the State or the Territory;

(e) a body (whether incorporated or not) prescribed for the

purposes of this paragraph.

9 Meaning of confidential information

(1) Information is confidential for the purposes of a provision of this

Act requiring or permitting a person (the decision-maker) to table

the information, publish the information or otherwise make the

information publicly available if:

(a) the decision-maker is satisfied that the disclosure of the

information in that way would cause undue distress or

embarrassment to a person; or

(b) the decision-maker is satisfied in accordance with

subsection (2) that the information is

commercial-in-confidence; or

information in that way would be contrary to the public

interest.

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(2) The decision-maker may be satisfied that information is

commercial-in-confidence if a person demonstrates to the

decision-maker that:

(a) the disclosure of the information could unreasonably affect

the person, or a business or action related to the person, in an

adverse manner; and

(b) the information is not in the public domain; and

law of the Commonwealth, a State or a Territory; and

(d) the information is not readily discoverable.

10 Act binds the Crown

This Act binds the Crown in each of its capacities. However, this

Act does not make the Crown liable to be prosecuted for an

offence.

11 Extension to Territories

This Act extends to every external Territory.

Note:

External Territories include Norfolk Island, the Territory of Cocos

(Keeling) Islands and the Territory of Christmas Island.

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Part 2--Australian Small Business and Family

Enterprise Ombudsman

Division 1--Establishment and functions and powers of the

Australian Small Business and Family Enterprise

Ombudsman

12 Establishment

There is to be an Australian Small Business and Family Enterprise

Ombudsman.

13 Functions of the Ombudsman

The functions of the Ombudsman are:

(a) to advocate for small businesses and family enterprises in

relation to relevant legislation, policies and practices (the

advocacy function); and

(b) to give assistance in relation to relevant actions if requested

to do so (the assistance function); and

by any Act or legislative instrument.

14 The advocacy function

The following functions are included in the advocacy function:

(a) to identify the concerns of those operating small businesses

and family enterprises arising out of relevant legislation,

policies and practices;

(b) to conduct research and make inquiries on the Ombudsman's

own initiative in relation to relevant legislation, policies and

practices under Division 2 of Part 3;

Minister under Division 3 of Part 3;

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(d) to provide advice to the Minister on matters referred to the

Ombudsman under Division 4 of Part 3;

(e) to work co-operatively, as far as is possible, with the

appropriate agencies of the Commonwealth, States and

Territories to develop national strategies in relation to

legislation, policies and practices that affect, or may affect,

small businesses or family enterprises under Division 5 of

Part 3;

(f) to provide information to, make submissions or

recommendations to, and otherwise contribute to the conduct

of inquiries into relevant legislation, policies and practices

under Division 6 of Part 3;

(g) to review proposals in relation to relevant legislation, policies

and practices, and give the Minister advice in relation to

proposals of that kind, under Division 6 of Part 3;

(h) to promote best practice in interactions with small businesses

and family enterprises under Division 6 of Part 3.

15 The assistance function

The following functions are included in the assistance function:

(a) to respond under Division 2 of Part 4 to requests for

assistance in relation to relevant actions, including by

referring requests to another agency of the Commonwealth, a

State or a Territory or by working co-operatively with

another agency of the Commonwealth, a State or a Territory

to give assistance;

(b) where a request for assistance relates to a dispute in relation

to a relevant action, to make recommendations under

Division 3 of Part 4 about how the dispute may be managed,

including recommendations that an alternative dispute

resolution process be used to manage the dispute.

16 General policy guidelines

In performing the Ombudsman's functions, the Ombudsman must:

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(a) perform the Ombudsman's functions in the most convenient

and effective way possible; and

(b) avoid duplicating the operations of any other agency of the

Commonwealth, a State or a Territory that performs a

function that wholly or partly overlaps with a function of the

Ombudsman; and

of the Commonwealth, the States and the Territories to

perform the Ombudsman's functions; and

(d) comply with all other laws of the Commonwealth.

17 Flexibility and range of working methods in performance of the

Ombudsman's functions

(1) The Ombudsman is not required to act in a formal manner in the

performance of the Ombudsman's functions, unless otherwise

required to do so under this Act, or any other Act or legislative

instrument.

(2) In the performance of the Ombudsman's functions, the

Ombudsman may:

(a) inform himself or herself on any matter in any way the

Ombudsman thinks fit; and

(b) consult with anyone the Ombudsman thinks fit; and

18 Ombudsman's powers

The Ombudsman has power to do all things necessary or

convenient to be done for or in connection with the performance of

the Ombudsman's functions.

Note:

The Secretary may enter into contracts and other arrangements on

behalf of the Commonwealth to assist the Ombudsman in performing

the Ombudsman's functions. See section 23 of the Public Governance,

Performance and Accountability Act 2013.

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19 Delegation by the Ombudsman

(1) The Ombudsman may, by written instrument, delegate the

functions and powers of the Ombudsman to:

(a) an SES employee, or acting SES employee, in the

Department; or

(b) an APS employee who holds or performs the duties of an

Executive Level 1 or 2 position, or an equivalent position, in

the Department.

(2) In exercising powers or performing functions under a delegation,

the delegate must comply with any written directions by the

Ombudsman.

20 Directions from the Minister

(1) The Minister may, by legislative instrument, give written directions

to the Ombudsman about the performance of the Ombudsman's

functions.

Note:

Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative

Instruments Act 2003 do not apply to the direction (see sections 44

and 54 of that Act).

(2) The direction must be of a general nature only.

(3) The Ombudsman must comply with the direction.

21 Minister may require reports

(1) The Minister may, in writing, direct the Ombudsman to give the

Minister specified reports relating to the Ombudsman's functions.

(2) The Ombudsman must comply with the direction.

(3) The direction, or the report (if made in writing), is not a legislative

instrument.

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22 Ombudsman is an official for the purposes of the finance law

The Ombudsman is an official of the Department for the purposes

of the finance law (as defined for the purposes of the Public

Governance, Performance and Accountability Act 2013).

Note:

The Ombudsman's responsibilities as an official under the Public

Governance, Performance and Accountability Act 2013 include duties

in relation to exercising due care and diligence, acting in good faith

and for a proper purpose, not improperly using information or position

and disclosing material interests (see Division 3 of Part 2-2 of that

Act).

23 Annual report

The annual report prepared by the Department and given to the

Minister under section 46 of the Public Governance, Performance

and Accountability Act 2013 for a period must include:

(a) the number and title of reports tabled by the Minister under

section 56 or published by the Minister under section 40A

during the period; and

(b) the kinds of national strategies in relation to legislation,

policies and practices that affect, or may affect, small

businesses or family enterprises developed during the period;

and

Ombudsman has made submissions, recommendations or

other contributions during the period; and

(d) the number of proposals in relation to relevant legislation,

policies and practices that the Ombudsman has reviewed

during the period; and

(e) the kinds of action taken to promote best practice during the

period; and

(f) the number of visits to the Ombudsman's website during the

period; and

(g) the number of requests for assistance made to the

Ombudsman; and

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(h) the number of requests for assistance that resulted in one of

the following for the period, broken down for each of the

following:

(i) a formal request for assistance;

(ii) a recommendation by the Ombudsman that parties to a

dispute take part in an alternative dispute resolution

process;

(iii) the resolution of a dispute;

(iv) the resolution of a dispute through an alternative dispute

resolution process recommended by the Ombudsman;

and

(i) the number and kind of requests for assistance transferred to

other agencies of the Commonwealth during the period; and

(j) the number and kind of requests for assistance transferred to

agencies of the States and Territories during the period; and

(k) the number and kind of requests for assistance that the

Ombudsman resolved co-operatively with other agencies of

the Commonwealth, the States and the Territories during the

period; and

(l) the number and kind of requests for assistance in relation to

which the Ombudsman recommended an alternative dispute

resolution process.

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Appointment and terms and conditions of the Australian Small Business and Family

Enterprise Ombudsman Division 2

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Division 2--Appointment and terms and conditions of the

Australian Small Business and Family Enterprise

Ombudsman

24 Appointment

(1) The Australian Small Business and Family Enterprise Ombudsman

is to be appointed by the Governor-General by written instrument.

(2) Before the Governor-General appoints a person as the Australian

Small Business and Family Enterprise Ombudsman, the Minister

must be satisfied that the person:

(a) has suitable qualifications or experience; and

(b) is of good character.

(3) The Ombudsman holds office on a full-time basis.

(4) The Ombudsman holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Note:

The Ombudsman may be reappointed: see section 33AA of the Acts

Interpretation Act 1901.

25 Remuneration

(1) The Ombudsman is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the Ombudsman is to

be paid the remuneration that is prescribed under subsection (4).

(2) The Ombudsman is to be paid the allowances that are prescribed

under subsection (4).

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

(4) The Minister may, by legislative instrument, prescribe:

(a) remuneration for the purposes of subsection (1); and

(b) allowances for the purposes of subsection (2).

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26 Leave of absence

(1) The Ombudsman has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant to the Ombudsman leave of absence, other

than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

27 Outside work

The Ombudsman must not engage in any paid work outside the

duties of the Ombudsman's office without the Minister's approval.

28 Resignation

(1) The Ombudsman may resign his or her appointment by giving the

Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

29 Disclosure of interests

Disclosure before appointment

(1) Before starting to hold office, the Ombudsman must give to the

Minister a written statement of any material personal interest that

the Ombudsman has that relates to the functions of the

Ombudsman.

Note:

The Ombudsman, once appointed, must also disclose interests under

section 29 of the Public Governance, Performance and Accountability

Act 2013.

Disclosure after appointment

(2) A disclosure by the Ombudsman under section 29 of the Public

Governance, Performance and Accountability Act 2013 (which

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deals with the duty to disclose interests) must be made to the

Minister.

(3) Subsection (2) applies in addition to any rules made for the

purposes of that section.

(4) For the purposes of this Act and the Public Governance,

Performance and Accountability Act 2013, the Ombudsman is

taken not to have complied with section 29 of that Act if the

Ombudsman does not comply with subsection (2) of this section.

30 Termination of appointment

(1) The Minister may terminate the appointment of the Ombudsman:

(a) for misbehaviour; or

(b) if the Ombudsman is unable to perform the duties of his or

her office because of physical or mental incapacity.

(2) The Minister may terminate the appointment of the Ombudsman if:

(a) the Ombudsman:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of one or more of his or her creditors; or

(b) the Ombudsman is absent, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or

approval, in paid work outside the duties of his or her office

(see section 27); or

(d) the Ombudsman fails, without reasonable excuse, to comply

with section 29 of the Public Governance, Performance and

Accountability Act 2013 (which deals with the duty to

disclose interests) or rules made for the purposes of that

section.

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Division 2 Appointment and terms and conditions of the Australian Small Business and

Family Enterprise Ombudsman

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31 Other terms and conditions

The Ombudsman holds office on the terms and conditions (if any)

in relation to matters not covered by this Act that are determined

by the Minister.

32 Acting appointments

The Minister may, by written instrument, appoint a person to act as

the Australian Small Business and Family Enterprise Ombudsman:

(a) during a vacancy in the office (whether or not an

appointment has previously been made to the office); or

(b) during any period, or during all periods, when the

Ombudsman:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the Acts Interpretation Act 1901.

Australian Small Business and Family Enterprise Ombudsman Part 2

Persons assisting the Australian Small Business and Family Enterprise Ombudsman

Division 3

Section 33

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 3--Persons assisting the Australian Small

Business and Family Enterprise Ombudsman

33 Staff

The staff necessary to assist the Ombudsman are to be persons

engaged under the Public Service Act 1999 and made available for

the purpose by the Secretary of the Department.

34 Consultants

The Secretary may, on behalf of the Commonwealth, engage

consultants to assist in the performance of the Ombudsman's

functions.

Part 3 Advocating for small businesses and family enterprises

Division 1 Preliminary

Section 35

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Part 3--Advocating for small businesses and family

enterprises

Division 1--Preliminary

35 Constitutional connection--meaning of relevant legislation,

policies and practices

The following are relevant legislation, policies and practices:

(a) past, present or proposed legislation, policies or practices of

Commonwealth agencies, to the extent that they affect or

may affect small businesses or family enterprises;

(b) past, present or proposed legislation, policies or practices of

Territory agencies, to the extent that they affect or may affect

small businesses or family enterprises;

constitutional corporations, to the extent that they affect or

may affect small businesses or family enterprises;

(d) past, present or proposed policies or practices of small

businesses or family enterprises that are constituted as, or

operated by, a constitutional corporation;

(e) past, present or proposed policies or practices of any entity,

to the extent that those policies or practices affect, or may

affect, small businesses or family enterprises in the course of

trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or

between 2 Territories;

(f) past, present or proposed policies or practices of any entity in

relation to one or more of the following:

(i) insurance;

(ii) banking;

(iii) telecommunications;

Advocating for small businesses and family enterprises Part 3

Preliminary Division 1

Section 35

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(iv) copyright, patents, designs or trade marks;

to the extent that those policies or practices also affect, or

may affect, small businesses or family enterprises;

(g) past, present or proposed policies or practices of any entity,

to the extent that they affect or may affect small businesses or

family enterprises:

(i) that are operated by an individual or individuals resident

in a Territory; or

(ii) that are, or are operated by, a body corporate or body

corporates, the principal place of business of which is in

a Territory; or

(iii) that are located in a Territory.

Part 3 Advocating for small businesses and family enterprises

Division 2 Research and inquiries on Ombudsman's own initiative

Section 36

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 2--Research and inquiries on Ombudsman's own

initiative

36 Research and inquiries

The Ombudsman may, on the Ombudsman's own initiative,

conduct research or make inquiries into:

(a) the effect of relevant legislation, policies and practices on

small businesses or family enterprises, or a class of small

businesses or family enterprises; and

(b) ways in which relevant legislation, policies and practices

might be improved to assist small businesses or family

enterprises, or a class of small businesses or family

enterprises.

37 Notice to person to provide information and documents

(1) If the Ombudsman reasonably believes that a person has, or could

take reasonable steps to obtain, information or documents relevant

to research or an inquiry under this Division, the Ombudsman may,

by notice, require the person to send to the Ombudsman:

(a) a statement setting out the specified information; and

(b) specified documents.

(2) The notice must:

(a) be in writing; and

(b) specify the period within which the statement and documents

referred to in subsection (1) must be sent to the Ombudsman;

and

(3) The period specified in the notice must be a period of at least 10

business days commencing on the day the notice is served.

(4) A person who is served a notice under this section must comply

with the notice.

Advocating for small businesses and family enterprises Part 3

Research and inquiries on Ombudsman's own initiative Division 2

Section 38

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Penalty: 30 penalty units.

(5) A person is not subject to a requirement under subsection (4) if:

(a) the person does not have the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

38 Documents produced in relation to research or inquiry

If documents are produced or given to the Ombudsman under this

Division, the Ombudsman:

(a) may take possession of, and make copies of, or take extracts

from, the documents; and

(b) may keep possession of the documents for so long as is

necessary for the purposes of the research or inquiry to which

they relate; and

permit them to be inspected at all reasonable times by people

who would be entitled to inspect them if they were not in the

possession of the Ombudsman.

39 Limitation on powers

Nothing in this Division allows a power to be exercised to the

extent that it would impair the capacity of a State to exercise its

constitutional powers.

40 Reports to the Minister

(1) The Ombudsman must give the Minister a report in relation to each

quarter that:

(a) outlines the research conducted and inquiries made during

the quarter; and

(b) if the Ombudsman reasonably believes that relevant

legislation, policies and practices have had, are having or are

reasonably likely to have an adverse effect on small

Part 3 Advocating for small businesses and family enterprises

Division 2 Research and inquiries on Ombudsman's own initiative

Section 41

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

businesses or family enterprises--outlines that fact and the

reasons for the Ombudsman's conclusion.

(2) The report must be given within 20 business days after the end of

the quarter.

(3) The Ombudsman may at any time give the Minister a report in

relation to research conducted or inquiries made into any relevant

legislation, policies and practices.

(4) A report given to the Minister under this section may include

recommendations by the Ombudsman in relation to any matter

included in the report.

41 Minister may publish Ombudsman's report

(1) The Minister may publish a report, or any part of a report, given to

the Minister under section 40 in any way he or she thinks fit.

(2) If the publication of information or a recommendation contained in

the report, or the part of the report, would be likely to adversely

affect the interests of any person, the Minister must, before

publishing the report, or the part of the report, direct the

Ombudsman:

(a) to notify the person that the information or recommendation

is contained in the report, or the part of the report; and

(b) to give the person a reasonable period (not exceeding 30

days) to make representations, either orally or in writing, in

relation to the information or recommendation, and its

publication.

(3) Before publishing the report, or the part of the report, the Minister:

(a) may delete any information or recommendation from the

report, or the part of the report, if:

(i) the information or recommendation would be likely to

adversely affect the interests of any person; and

(ii) the Minister reasonably believes that it is in the public

interest to delete the information or recommendation;

and

Advocating for small businesses and family enterprises Part 3

Research and inquiries on Ombudsman's own initiative Division 2

Section 41

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(b) must delete from the report, or the part of the report, any

confidential information.

(4) In making a decision under subparagraph (3)(a)(ii), the Minister

must take into account any representations made by the person in

response to a notification under subsection (2).

(5) A direction under subsection (2) (if made in writing) is not a

legislative instrument.

Part 3 Advocating for small businesses and family enterprises

Division 3 Minister may refer matter to Ombudsman for inquiry

Section 42

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 3--Minister may refer matter to Ombudsman for

inquiry

Subdivision A--Referral by Minister

42 Minister may refer a matter for inquiry

(1) The Minister may refer the following matters to the Ombudsman

for inquiry:

(a) the effect of relevant legislation, policies and practices on

small businesses or family enterprises, or a class of small

businesses or family enterprises;

(b) ways in which relevant legislation, policies and practices

might be improved to assist small businesses or family

enterprises, or a class of small businesses or family

enterprises.

(2) In referring a matter to the Ombudsman for inquiry, the Minister

may, for the purpose of ensuring that the inquiry is conducted in

the manner appropriate to that inquiry, do any or all of the

following:

(a) require the Ombudsman to hold hearings for the purposes of

the inquiry;

(b) specify a period within which the Ombudsman must submit

the Ombudsman's report on the inquiry to the Minister;

the public during an inquiry;

(d) require the Ombudsman to make recommendations in

relation to the matter.

(3) The Ombudsman must comply with a requirement imposed by the

Minister under subsection (2).

(4) The Minister may withdraw or amend the reference at any time

before the Minister has received the report on the inquiry from the

Ombudsman.

Advocating for small businesses and family enterprises Part 3

Minister may refer matter to Ombudsman for inquiry Division 3

Section 43

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(5) If the Minister refers a matter to the Ombudsman for inquiry, the

Ombudsman may also make recommendations in the report on any

matters relevant to the matter referred.

Subdivision B--Notice of inquiry

43 Notice of inquiry

As soon as practicable after the Ombudsman receives a reference

to hold an inquiry, the Ombudsman must give reasonable notice in

each State and Territory, by advertisement published in a

newspaper circulating in the State or Territory, of the intention to

hold the inquiry.

Subdivision C--Hearings

44 Application of this Subdivision

This Subdivision applies if the Ombudsman is required under

section 42 to hold hearings for the purposes of an inquiry.

45 Notice of hearings

(1) Before the Ombudsman begins to hold hearings, the Ombudsman

must give reasonable notice in each State and Territory of the

intention to hold the hearings, the subject of the hearings and the

time and place at which the first of the hearings is to begin.

(2) The notice must be given by advertisement published in a

newspaper circulating in each State and Territory.

46 Procedure at hearings

(1) A hearing must be held in public except in the circumstances set

out in subsection (2).

(2) If the Ombudsman reasonably believes that it is in the public

interest not to hold the hearing, or a part of it, in public the

Ombudsman may:

Part 3 Advocating for small businesses and family enterprises

Division 3 Minister may refer matter to Ombudsman for inquiry

Section 47

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

(a) direct that the hearing, or that part of it, take place in private;

and

(b) give directions as to who may be present.

47 Notice to person to provide information and documents

(1) If the Ombudsman reasonably believes that a person has, or could

take reasonable steps to obtain, information or documents relevant

to the inquiry, the Ombudsman may, by notice, require the person

to send to the Ombudsman:

(a) a statement setting out the specified information; and

(b) specified documents.

(2) The notice must:

(a) be in writing; and

(b) specify the period within which the statement and documents

referred to in subsection (1) must be sent to the Ombudsman;

and

(3) The period specified in the notice must be a period of at least 10

business days commencing on the day the notice is served.

(4) A person who is served a notice under this section must comply

with the notice.

Penalty: 30 penalty units.

(5) A person is not subject to a requirement under subsection (4) if:

(a) the person does not have the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

48 Summons to person to attend hearing

(1) If the Ombudsman reasonably believes that a person has, or could

take reasonable steps to obtain, information or documents relevant

Advocating for small businesses and family enterprises Part 3

Minister may refer matter to Ombudsman for inquiry Division 3

Section 49

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

to the inquiry, the Ombudsman may summon a person, in writing,

to appear at a hearing to give evidence and to produce documents

specified in the summons.

(2) A person served with a summons to appear at a hearing must not:

(a) fail to attend as required by the summons; or

(b) fail to attend from day to day.

Penalty: 30 penalty units.

(3) Paragraph (2)(b) does not apply if the person is excused, or

released from further attendance, by the Ombudsman.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

49 Refusal to answer questions or produce documents

(1) A person appearing as a witness at a hearing must not refuse or

fail:

(a) to answer a question as required by the Ombudsman; or

(b) to produce a document as required by a summons served on

the person under section 48.

Penalty: 30 penalty units.

(2) A person is not subject to a requirement under subsection (1) if:

(a) the person does not have the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

50 Documents produced in relation to inquiry

If documents are produced or given to the Ombudsman under this

Subdivision, the Ombudsman:

(a) may take possession of, and make copies of, or take extracts

from, the documents; and

Part 3 Advocating for small businesses and family enterprises

Division 3 Minister may refer matter to Ombudsman for inquiry

Section 51

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

(b) may keep possession of the documents for so long as is

necessary for the purposes of the inquiry to which they relate;

and

permit them to be inspected at all reasonable times by people

who would be entitled to inspect them if they were not in the

possession of the Ombudsman.

51 Allowances to witnesses

A person who attends a hearing under a summons served under

section 48 is entitled to be paid by the Commonwealth such

allowances and expenses as are prescribed.

52 Restrictions on publication of evidence

(1) If the Ombudsman directs that a hearing, or a part of it, take place

in private, the Ombudsman may give directions prohibiting or

restricting the publication of:

(a) evidence given before the hearing (including evidence given

prior to a direction that part of the hearing take place in

private); or

(b) matters contained in documents given to the Ombudsman in

connection with the hearing.

(2) A person must not contravene a direction given under this section.

Penalty: 30 penalty units.

53 Written statements etc. to be made public

(1) The Ombudsman must make available to the public the contents of:

(a) any written evidence given to the Ombudsman in connection

with the inquiry; and

(b) any document produced to the Ombudsman in connection

with the inquiry.

Advocating for small businesses and family enterprises Part 3

Minister may refer matter to Ombudsman for inquiry Division 3

Section 54

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(2) However, the Ombudsman must delete any confidential

information from the evidence or document before making it

publicly available.

(3) The Ombudsman may make the evidence or document publicly

available in any way the Ombudsman thinks fit.

54 Limitation on powers

Nothing in this Subdivision allows a power to be exercised to the

extent that it would impair the capacity of a State to exercise its

constitutional powers.

Subdivision D--Report of inquiry

55 Ombudsman must prepare a report on the inquiry

If the Minister refers a matter to the Ombudsman for inquiry, the

Ombudsman must make a written report to the Minister on the

inquiry, unless the Minister withdraws the reference to the

Ombudsman.

56 Report of inquiry to be tabled

(1) The Minister must cause a copy of the Ombudsman's report on an

inquiry to be tabled in each House of the Parliament:

(a) within 25 sitting days of that House after the day on which

the Minister receives it; or

(b) if the Ombudsman recommends that the tabling of the report,

or part of the report, be delayed for a specified period--

within 25 sitting days of that House after the end of that

period.

(2) If the publication of information or an opinion in the report would

be likely to adversely affect the interests of any person, the

Minister must, before tabling the report, direct the Ombudsman:

(a) to notify the person that the information or opinion is

contained in the report; and

Part 3 Advocating for small businesses and family enterprises

Division 3 Minister may refer matter to Ombudsman for inquiry

Section 56

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

(b) to give the person a reasonable period (not exceeding 30

days) to make representations, either orally or in writing, in

relation to the information or opinion, and its publication.

(3) Before tabling the report on an inquiry, the Minister:

(a) may delete any information or opinion from the report if:

(i) the information or opinion would be likely to adversely

affect the interests of any person; and

(ii) the Minister reasonably believes that it is in the public

interest to delete the information or opinion; and

(b) must delete from the report any confidential information.

(4) In making a decision under subparagraph (3)(a)(ii), the Minister

must take into account any representations made by the person in

response to a notification under subsection (2).

(5) A direction under subsection (2) (if made in writing) is not a

legislative instrument.

Advocating for small businesses and family enterprises Part 3

Providing advice to the Minister Division 4

Section 57

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 4--Providing advice to the Minister

57 Minister may refer a matter for advice

(1) The Minister may refer the following matters to the Ombudsman

for advice:

(a) the effect of relevant legislation, policies and practices on

small businesses or family enterprises, or a class of small

businesses or family enterprises;

(b) ways in which relevant legislation, policies and practices

might be improved to assist small businesses or family

enterprises, or a class of small businesses or family

enterprises.

(2) If the Minister refers a matter to the Ombudsman for advice, the

Minister may specify any or all of the following:

(a) that the advice is to be in writing;

(b) a period within which the advice is to be given;

giving the advice.

(3) The Ombudsman must comply with a requirement imposed by the

Minister under subsection (2).

(4) The Minister may withdraw or amend the referral at any time

before the Ombudsman gives the advice.

(5) If the Minister refers a matter to the Ombudsman for advice, the

Ombudsman may also advise the Minister on any matters the

Ombudsman considers relevant to the matter.

58 Minister may publish Ombudsman's advice

(1) The Minister may publish advice given by the Ombudsman under

section 57 in any way he or she thinks fit.

(2) If the publication of information or an opinion in the advice would

be likely to adversely affect the interests of any person, the

Part 3 Advocating for small businesses and family enterprises

Division 4 Providing advice to the Minister

Section 58

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Minister must, before publishing the advice, direct the

Ombudsman:

(a) to notify the person that the information or opinion is

contained in the advice; and

(b) to give the person a reasonable period (not exceeding 30

days) to make representations, either orally or in writing, in

relation to the information or opinion, and its publication.

(3) Before publishing the advice, the Minister:

(a) may delete any information or opinion from the advice if:

(i) the information or opinion would be likely to adversely

affect the interests of any person; and

(ii) the Minister reasonably believes that it is in the public

interest to delete the information or opinion; and

(b) must delete from the advice any confidential information.

(4) In making a decision under subparagraph (3)(a)(ii), the Minister

must take into account any representations made by the person in

response to a notification under subsection (2).

(5) A direction under subsection (2) (if made in writing) is not a

legislative instrument.

Advocating for small businesses and family enterprises Part 3

National strategies Division 5

Section 59

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 5--National strategies

59 Working co-operatively with Commonwealth, State and

Territory agencies

The Ombudsman must work co-operatively, as far as is possible,

with the appropriate agencies of the Commonwealth, States and

Territories for the purpose of developing national strategies in

relation to legislation, policies and practices that affect, or may

affect, small businesses or family enterprises.

60 Secretariat services and research services

The Ombudsman may provide secretariat services or research

services to joint Commonwealth, State and Territory bodies formed

for the purpose of developing national strategies in relation to

legislation, policies and practices that affect, or may affect, small

businesses or family enterprises.

Part 3 Advocating for small businesses and family enterprises

Division 6 Other advocacy functions

Section 61

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 6--Other advocacy functions

61 Contributing to inquiries into relevant legislation, policies and

practices

The Ombudsman may provide information to, make submissions

or recommendations to, and otherwise contribute to the conduct of

inquiries into relevant legislation, policies and practices.

62 Reviewing proposals relating to relevant legislation, policies and

practices

Ombudsman may review on own initiative

(1) The Ombudsman may review a proposal for relevant legislation,

policies and practices, or to change relevant legislation, policies

and practices, to determine:

(a) the effect on small businesses and family enterprises if the

proposal is carried out; and

(b) ways in which the proposal might be improved to assist small

businesses and family enterprises.

Minister may refer to Ombudsman for review

(2) The Minister may refer a proposal for relevant legislation, policies

and practices, or to change relevant legislation, policies and

practices, to the Ombudsman for review.

(3) If the Minister refers a proposal to the Ombudsman for review:

(a) the Ombudsman must review the proposal to determine:

(i) the effect on small businesses and family enterprises if

the proposal is carried out; and

(ii) ways in which the proposal might be improved to assist

small businesses and family enterprises; and

(b) the Ombudsman must give the Minister advice on the

proposal, based on the review.

Advocating for small businesses and family enterprises Part 3

Other advocacy functions Division 6

Section 63

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(4) The Minister may specify any or all of the following:

(a) that the advice is to be in writing;

(b) a period within which the review is to be carried out and the

advice is to be given;

carrying out the review or giving the advice.

(5) The Ombudsman must comply with a requirement imposed by the

Minister under subsection (4).

(6) The Minister may withdraw or amend the referral at any time

before the Ombudsman gives the advice.

63 Minister may publish advice given as a result of a review

(1) The Minister may publish advice given by the Ombudsman under

section 62 in any way he or she thinks fit.

(2) If the publication of information or an opinion in the advice would

be likely to adversely affect the interests of any person, the

Minister must, before publishing the advice, direct the

Ombudsman:

(a) to notify the person that the information or opinion is

contained in the report; and

(b) to give the person a reasonable period (not exceeding 30

days) to make representations, either orally or in writing, in

relation to the information or opinion, and its publication.

(3) Before publishing the advice, the Minister:

(a) may delete any information or opinion from the advice if:

(i) the information or opinion would be likely to adversely

affect the interests of any person; and

(ii) the Minister reasonably believes that it is in the public

interest to delete the information or opinion; and

(b) must delete from the advice any confidential information.

(4) In making a decision under subparagraph (3)(a)(ii), the Minister

must take into account any representations made by the person in

response to a notification under subsection (2).

Part 3 Advocating for small businesses and family enterprises

Division 6 Other advocacy functions

Section 64

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

(5) A direction under subsection (2) (if made in writing) is not a

legislative instrument.

64 Promoting best practice

The Ombudsman may, on the Ombudsman's own initiative, take

steps to promote best practice in interactions:

(a) between:

(i) Commonwealth agencies; and

(ii) small businesses or family enterprises; and

(b) between:

(i) Territory agencies; and

(ii) small businesses or family enterprises; and

(i) constitutional corporations; and

(ii) small businesses or family enterprises; and

(d) between:

(i) constitutional corporations that are small businesses or

family enterprises; and

(ii) other entities; and

(e) between entities, in the course of trade and commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory; or

(iv) between a State and a Territory or between 2 Territories;

and

(f) between:

(i) small businesses or family enterprises that are operated

by individuals who are resident in a Territory; and

(ii) other entities; and

(g) between:

(i) small businesses or family enterprises that are, or are

operated by, body corporates the principal place of

business of which is in a Territory; and

(ii) other entities; and

Part 4 Assisting a small business or family enterprise

Division 1 Preliminary

Section 65

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Part 4--Assisting a small business or family

enterprise

Division 1--Preliminary

65 Constitutional connection--meaning of relevant action

Each of the following is a relevant action:

(a) action by an agency of the Commonwealth that affects, or

may affect, a small business or family enterprise;

(b) action by a constitutional corporation that affects, or may

affect, a small business or family enterprise;

enterprise that is a constitutional corporation;

(d) action by any entity that affects, or may affect, a small

business or family enterprise in the course of trade or

commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or

between 2 Territories;

(e) action in relation to one or more of the following:

(i) insurance;

(ii) banking;

(iii) telecommunications;

(iv) copyright, patents, designs or trade marks;

where that action is by, affects or may affect a small business

or family enterprise;

(f) an action by or that affects or may affect a small business or

family enterprise:

(i) that is operated by an individual or individuals resident

in a Territory; or

Part 4 Assisting a small business or family enterprise

Division 2 Responding to requests for assistance

Section 66

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 2--Responding to requests for assistance

66 Requests for assistance

(1) Any person may request assistance from the Ombudsman in

relation to a relevant action.

(2) The request may be made to the Ombudsman orally or in writing.

(3) If the request is made orally to the Ombudsman, the Ombudsman

may:

(a) reduce the request to writing; or

(b) at any time require the person who made the request to

reduce the request to writing.

(4) If the Ombudsman requires a person to reduce a request for

assistance to writing, the Ombudsman may decline to deal with the

request, or to deal with the request further, until the person reduces

the request to writing.

(5) A request for assistance in relation to a relevant action made to the

Ombudsman in writing, or reduced to writing, is a formal request.

67 Circumstances in which Ombudsman authorised to deal with a

request for assistance

(1) The Ombudsman is authorised to deal with a request for assistance

in relation to a relevant action.

(2) However, the Ombudsman is not authorised to deal with a request

for assistance in relation to a relevant action if any of the following

apply:

(a) the request for assistance does not relate to a relevant action;

(b) the action is taken by a Minister of the Commonwealth, or of

a State or a Territory;

Assisting a small business or family enterprise Part 4

Responding to requests for assistance Division 2

Section 68

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

(d) the action is an order, direction or decision by a judge, justice

or magistrate of a court created by the Parliament or of a

court of a State or Territory or a member of a tribunal;

(e) the action is taken by an officer of such a court or a tribunal

exercising powers of the court or tribunal;

(f) the action is taken as part of:

(i) proceedings of, or the proceedings of a committee of, a

Parliament; or

(ii) proceedings of a commission or inquiry under a law of

the Commonwealth, or of a State or a Territory;

(g) the action consists of enforcement of a judgment or order of a

court or tribunal.

(3) If a formal request for assistance is made and the Ombudsman

decides not to give assistance, or further assistance, because the

Ombudsman is not authorised to deal with the request for

assistance, the Ombudsman must give the person who requested

assistance notice in writing setting out:

(a) the Ombudsman's decision; and

(b) the reasons for the Ombudsman's decision.

68 Circumstances in which Ombudsman may decide not to provide

assistance

(1) The Ombudsman may decide not to give assistance in response to a

request, or decide not to give further assistance in response to a

request, if:

(a) the Ombudsman reasonably believes that the person who

requested assistance became aware of the action more than

12 months before the request was made; or

(b) the Ombudsman reasonably believes that:

(i) the request is frivolous or vexatious; or

(ii) the request was not made in good faith; or

(iii) the person who made the request does not have a

sufficient interest in the subject matter of the request; or

(iv) providing assistance in response to the request is not

warranted having regard to all the circumstances; or

Part 4 Assisting a small business or family enterprise

Division 2 Responding to requests for assistance

Section 69

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section 69.

(2) If a formal request for assistance is made and the Ombudsman

decides not to give assistance, or further assistance, under this

section, the Ombudsman must give the person who requested

assistance notice in writing setting out:

(a) the Ombudsman's decision; and

(b) the reasons for the Ombudsman's decision.

69 Circumstances in which the Ombudsman must transfer a request

for assistance to another agency

(1) The Ombudsman must not give assistance in response to a request

for assistance in relation to a relevant action, or give further

assistance in response to such a request, if:

(a) the Ombudsman reasonably believes that:

(i) the request could have been made to another agency of

the Commonwealth, a State or a Territory; and

(ii) the request could be more conveniently or effectively

dealt with by the other agency; and

(b) the other agency has the legal power to deal with the request.

(2) The Ombudsman must not give assistance in relation to an aspect

of a request for assistance in relation to a relevant action, or give

further assistance in relation to an aspect of such a request, if:

(a) the Ombudsman reasonably believes that:

(i) that aspect of the request for assistance could have been

made to another agency of the Commonwealth, a State

or a Territory; and

(ii) that aspect of the request for assistance could be more

conveniently or effectively dealt with by the other

agency; and

(b) the other agency has the legal power to deal with that aspect

of the request.

(3) The Ombudsman must not make a decision under subsection (1) or

(2) unless:

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(a) the Ombudsman has consulted with the other agency about

whether it would be more convenient or effective for the

other agency to deal with the request, or the relevant aspect

of the request; or

(b) the Ombudsman has consulted with the other agency about

whether it would be more convenient or effective for the

other agency to deal with a particular class of requests, or a

particular class of aspects of requests, and the request or

aspect of the request is one of that class.

(4) If the Ombudsman makes a decision not to give assistance, or

further assistance, under subsection (1) or (2), the Ombudsman

must transfer the request, or the relevant aspect of the request, to

the other agency.

(5) The Ombudsman must:

(a) transfer the request, or the relevant aspect of the request, as

soon as is reasonably practicable; and

(b) give the other agency any information or documents relating

to the request, or the relevant aspect of the request, that are in

the possession, or under the control, of the Ombudsman; and

made the request notice that the request, or the relevant

aspect of the request, has been transferred to the other

agency.

(6) If the request is a formal request, the notice under paragraph (5)(c)

must be in writing.

(7) If a request for assistance, or an aspect of a request for assistance,

is transferred to another agency under this section:

(a) the request for assistance, or that aspect of the request for

assistance, is taken to have been made to the other agency

under the law of the Commonwealth, State or Territory under

which the other agency has power to deal with the request, or

the aspect of the request (however described under that law);

and

Part 4 Assisting a small business or family enterprise

Division 2 Responding to requests for assistance

Section 70

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No. , 2015

(b) paragraph (a) applies, despite any requirement under that law

that the request or that aspect of the request be made to the

other agency in a particular manner or form.

70 Circumstances in which the Ombudsman may work

co-operatively with another agency to give assistance

(1) The Ombudsman may enter into an arrangement with another

agency of the Commonwealth, a State or a Territory, to work

co-operatively with the other agency:

(a) to deal with a request for assistance in relation to a relevant

action; and

(b) to deal with a class of requests for assistance in relation to

relevant actions.

(2) The Ombudsman may only enter into an arrangement with another

agency under subsection (1), if:

(a) the Ombudsman reasonably believes that:

(i) a request for assistance to which the arrangement

relates, or an aspect of a request for assistance to which

the arrangement relates, could have been made to the

other agency; and

(ii) the other agency is willing to work co-operatively with

the Ombudsman to give assistance; and

(iii) assistance could be more conveniently or effectively

given if the Ombudsman worked co-operatively with

that agency; and

(b) under the law of the Commonwealth or of a State or a

Territory, the other agency has the power to deal with a

request to which the arrangement relates, or an aspect of a

request for assistance to which the arrangement relates.

(3) If the Ombudsman receives a request for assistance in relation to

which the Ombudsman has entered into an arrangement under

subsection (1), or that is of a class in relation to which the

Ombudsman has entered into an arrangement under subsection (1),

the Ombudsman must:

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(a) if, under the arrangement, any aspect of the request for

assistance is to be transferred to the other agency--transfer

that aspect of the request as soon as is reasonably practicable;

and

(b) give the other agency any information or documents:

(i) that relate to the request and are relevant to the aspect of

the request to be dealt with by the agency; and

(ii) that are in the possession, or under the control, of the

Ombudsman; and

made the request notice that the Ombudsman will work

co-operatively, as far as is possible, with the other agency to

deal with the request.

(4) If the request is a formal request, the notice under paragraph (3)(c)

must be in writing.

(5) If an aspect of a request for assistance is transferred to another

agency under this section:

(a) that aspect of the request for assistance is taken to have been

made to the other agency under the law of the

Commonwealth, State or Territory under which the other

agency has power to deal with the aspect of the request

(however described under that law); and

(b) paragraph (a) applies, despite any requirement under that law

that the aspect of the request be made to the other agency in a

particular manner or form.

Part 4 Assisting a small business or family enterprise

Division 3 Assistance in a dispute

Section 71

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 3--Assistance in a dispute

71 Ombudsman may recommend alternative dispute resolution

process

(1) If a person requests the Ombudsman to give assistance in a dispute

in relation to a relevant action, the Ombudsman may make

recommendations on how the dispute may be managed.

(2) Without limiting subsection (1):

(a) the Ombudsman may recommend that the parties to the

dispute should take part in an alternative dispute resolution

process, or alternative dispute resolution processes, of the

kind specified in the recommendation; and

(b) the Ombudsman may recommend that the alternative dispute

resolution process or processes be conducted by one or more

of a group of persons specified in the recommendation who

are drawn from the list of alternative dispute resolution

providers published by the Ombudsman under section 72.

(3) The Ombudsman must not recommend a group of alternative

dispute resolution providers under paragraph (2)(b), unless the

Ombudsman reasonably believes that, having regard to the

following matters, those providers are best suited to assist the

parties in the dispute:

(a) the qualifications and experience of the providers;

(b) the convenience of the parties in accessing assistance by the

providers;

providers.

(4) If the Ombudsman recommends an alternative dispute resolution

process or alternative dispute resolution processes, the

Ombudsman must give notice, in writing, of the recommendation

to the parties to the dispute.

(5) The notice must include a warning that if:

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Assistance in a dispute Division 3

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(a) the parties do not undertake an alternative dispute resolution

process, or alternative dispute resolution processes, of the

kind specified in the recommendation; or

(b) withdraw from an alternative dispute resolution process, or

alternative dispute resolution processes, of the kind specified

in the recommendation;

the Ombudsman may publicise that fact.

72 List of alternative dispute resolution providers

(1) The Ombudsman may publish a list of persons who:

(a) have the qualifications or experience to conduct alternative

dispute resolution processes to resolve disputes in relation to

relevant actions; and

(b) the rates that providers on the list have agreed to charge in

conducting alternative dispute resolution processes to resolve

disputes in relation to relevant actions.

(2) The Minister may, by legislative instrument, prescribe:

(a) the qualifications or experience required for persons to be

included on the list; and

(b) rules to ensure that alternative dispute resolution processes

offered by persons included on the list are available in a way

that is convenient and effective for the parties to disputes in

relation to relevant actions.

73 Alternative dispute resolution processes not to be conducted by

the Ombudsman

(1) An alternative dispute resolution process recommended by the

Ombudsman is to be conducted by a person, other than a person

mentioned in subsection (2), chosen by the parties to the dispute.

(2) An alternative dispute resolution process recommended by the

Ombudsman must not be conducted by:

(a) the Ombudsman; or

(b) a delegate of the Ombudsman; or

Part 4 Assisting a small business or family enterprise

Division 3 Assistance in a dispute

Section 74

Australian Small Business and Family Enterprise Ombudsman Bill

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No. , 2015

(d) a person engaged as a consultant under section 34.

74 Publishing failure to participate in alternative dispute resolution

process

(1) The Ombudsman may publicise, in any way that the Ombudsman

thinks appropriate, either or both of the following:

(a) that an entity who is a party to a dispute in relation to a

relevant action has refused to engage in an alternative dispute

resolution process, or alternative dispute resolution

processes, of the kind recommended by the Ombudsman

under paragraph 71(2)(a);

(b) that an entity who is a party to a dispute in relation to a

relevant action has withdrawn from an alternative dispute

resolution process, or alternative dispute resolution

processes, of the kind recommended by the Ombudsman

under paragraph 71(2)(a).

(2) This section does not:

(a) limit the power of the Ombudsman or anyone else to

publicise a matter or a person's name; or

(b) prevent anyone else from publicising a matter or a person's

name; or

publicise a matter or a person's name.

Assisting a small business or family enterprise Part 4

Gathering information about requests for assistance Division 4

Section 75

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 4--Gathering information about requests for

assistance

75 Inquiries in relation to a request for assistance

The Ombudsman may make inquiries for one or more of the

following purposes:

(a) deciding whether a request for assistance is one which the

Ombudsman is authorised to deal with;

(b) deciding whether to refuse a request for assistance;

request for assistance, could be more conveniently or

effectively dealt with by another agency of the

Commonwealth, a State or a Territory;

(d) deciding whether a request for assistance, or an aspect of a

request for assistance, could be more conveniently or

effectively dealt with by working co-operatively with another

agency of the Commonwealth, a State or a Territory;

(e) deciding whether to recommend an alternative dispute

resolution process, or alternative dispute resolution

processes, to assist in a dispute in relation to a relevant

action, and which process or processes to recommend;

(f) obtaining details of the parties to a dispute in relation to a

relevant action for the purposes of performing functions or

duties, or exercising powers, under this Act in relation to the

dispute;

(g) deciding what other action the Ombudsman will take in

giving assistance in response to a request.

76 Notice to person to provide information and documents

(1) If the Ombudsman reasonably believes that a person has, or could

take reasonable steps to obtain, information or documents relevant

to an inquiry under this Division, the Ombudsman may, by notice,

require the person to send to the Ombudsman:

(a) a statement setting out the specified information; and

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Division 4 Gathering information about requests for assistance

Section 77

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No. , 2015

(b) specified documents.

(2) The notice must:

(a) be in writing; and

(b) specify the period within which the statement and documents

referred to in subsection (1) must be sent to the Ombudsman;

and

(3) The period specified in the notice must be a period of at least 10

business days commencing on the day the notice is served.

(4) A person who is served a notice under this section must comply

with the notice.

Penalty: 30 penalty units.

(5) A person is not subject to a requirement under subsection (4) if:

(a) the person does not have the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

77 Documents produced in relation to inquiry

If documents are produced or given to the Ombudsman under this

Division, the Ombudsman:

(a) may take possession of, and make copies of, or take extracts

from, the documents; and

(b) may keep possession of the documents for so long as is

necessary for the purposes of the inquiry to which they relate;

and

permit them to be inspected at all reasonable times by people

who would be entitled to inspect them if they were not in the

possession of the Ombudsman.

Part 5 General requirements

Division 1 Concurrent operation of State Law

Section 79

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Part 5--General requirements

Division 1--Concurrent operation of State Law

79 Concurrent operation of State law

This Act is not intended to exclude or limit the operation of any

State or Territory law, to the extent that the State or Territory law

is capable of operating concurrently with this Act.

Note:

Under the general policy guidelines set out in section 16, the

Ombudsman must avoid duplicating the operations of other agencies

of the Commonwealth, States and Territories and must work

co-operatively with those agencies.

General requirements Part 5

Secrecy Division 2

Section 80

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 2--Secrecy

80 Meaning of protected information

Protected information is information that:

(a) is disclosed to, or obtained by, a person in his or her capacity

as a person assisting small business/family enterprise; and

(b) relates to the affairs of a person (other than a person assisting

small business/family enterprise).

81 Meaning of person assisting small business/family enterprise

Each of the following is a person assisting small business/family

enterprise:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

(d) a person engaged as a consultant under section 34;

(e) a person providing an alternative dispute resolution process

in connection with a dispute in relation to a relevant action.

82 Use or disclosure of protected information

(1) A person commits an offence if:

(a) protected information has been disclosed to, or obtained by,

the person; and

(b) the protected information has been disclosed to, or obtained

by, the person in his or her capacity as a person assisting

small business/family enterprise; and

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Part 5 General requirements

Division 2 Secrecy

Section 83

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No. , 2015

Exceptions

(2) Each of the following is an exception to the prohibition in

subsection (1):

(a) the disclosure or use is authorised by a provision of this Act

or a legislative instrument under this Act;

(b) the disclosure or use is in compliance with a requirement

under:

(i) a law of the Commonwealth; or

(ii) a law of a State or a Territory.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Except where it is necessary to do so for the purposes of giving

effect to this Act or a legislative instrument under this Act, a

person assisting small business/family enterprise is not to be

required:

(a) to produce to a court or tribunal a document containing

protected information; or

(b) to disclose protected information to a court or tribunal.

83 Disclosure or use for the purposes of this Act

A person assisting small business/family enterprise may disclose or

use protected information if the disclosure or use is for the

purposes of this Act or a legislative instrument under this Act.

84 Disclosure to the Minister

(1) Any of the following persons:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

may disclose protected information to the Minister.

(2) However, information must not be disclosed to the Minister under

this section if it relates to a request for assistance in relation to a

dispute with the Department.

General requirements Part 5

Secrecy Division 2

Section 85

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

85 Disclosure to the Secretary etc.

(1) Any of the following persons:

(a) the Ombudsman;

(b) a delegate of the Ombudsman;

may disclose protected information to:

(d) the Secretary; or

(e) an officer of the Department who is authorised by the

Secretary, in writing, for the purposes of this section;

if the disclosure is for the purposes of advising the Minister.

(2) However, information must not be disclosed under this section to

the Secretary or a person mentioned in paragraph (1)(e), if it relates

to a request for assistance in relation to a dispute with the

Department.

86 Disclosure to certain agencies, bodies and persons

When this section applies

(1) This section applies if the Ombudsman reasonably believes that

protected information will enable or assist any of the following

agencies or bodies to perform or exercise any of the functions or

powers of the agency or body:

(a) the Commonwealth Ombudsman;

(b) an agency of a State or a Territory the functions of which

include a function that corresponds to a function of the

Ombudsman;

(d) the Australian Competition Tribunal;

(e) the National Competition Council;

(f) the Australian Competition and Consumer Commission;

(g) any other prescribed agency of the Commonwealth, a State or

a Territory;

(h) any professional disciplinary body prescribed.

Part 5 General requirements

Division 2 Secrecy

Section 87

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No. , 2015

Disclosure

(2) The Ombudsman may disclose that protected information to the

person or body concerned.

(3) If any of the following persons:

(a) a delegate of the Ombudsman;

(b) a person assisting the Ombudsman under section 33;

is authorised by the Ombudsman, in writing, for the purposes of

this section, the person may disclose that protected information to

the person or body concerned.

Offence--unauthorised disclosure by professional disciplinary

bodies

(4) A person commits an offence if:

(a) the person is:

(i) a professional disciplinary body prescribed for the

purpose of paragraph (1)(h); or

(ii) a member of such a professional disciplinary body; and

(b) protected information has been disclosed under

subsection (2) or (3) to the body; and

(i) discloses the information to another person; or

(ii) uses the information; and

(d) the disclosure or use is not:

(i) with the consent of the Ombudsman; or

(ii) for the purpose of deciding whether or not to take

disciplinary or other action; or

(iii) for the purpose of taking disciplinary or other action.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

87 Disclosure with consent

A person assisting small business/family enterprise may disclose or

use protected information that relates to the affairs of a person if:

General requirements Part 5

Secrecy Division 2

Section 88

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Australian Small Business and Family Enterprise Ombudsman Bill

2015

(a) the person has consented to the disclosure or use; and

(b) the disclosure or use is in accordance with that consent.

88 Disclosure to reduce threat to life or health

A person assisting small business/family enterprise may disclose or

use protected information if:

(a) the person assisting small business/family enterprise

reasonably believes that the disclosure or use is necessary to

prevent or lessen a serious and imminent threat to the life or

health of an individual; and

(b) the disclosure or use is for the purposes of preventing or

lessening that threat.

89 Disclosure of publicly available information

A person assisting small business/family enterprise may disclose or

use protected information if it is already publicly available.

90 Disclosure of summaries or statistics

A person assisting small business/family enterprise may disclose or

use:

(a) summaries of protected information; or

(b) statistics derived from protected information;

if those summaries or statistics, as the case may be, are not likely

to enable the identification of a person.

91 Disclosure for purposes of law enforcement and national security

Scope

(1) This section applies if the Ombudsman reasonably believes that the

disclosure of protected information is reasonably necessary for:

(a) the enforcement of the criminal law; or

(b) the enforcement of a law imposing a pecuniary penalty; or

Part 5 General requirements

Division 2 Secrecy

Section 91

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No. , 2015

(d) the protection of national security.

Disclosure

(2) The Ombudsman may disclose that protected information to:

(a) an agency of the Commonwealth, a State or a Territory; or

(b) an Australian police force;

whose functions include that enforcement or protection, for the

purposes of that enforcement or protection.

(3) If a delegate of the Ombudsman, or a person assisting the

Ombudsman under section 33, is authorised by the Ombudsman, in

writing, for the purposes of this section, the individual may

disclose that protected information to:

(a) an agency of the Commonwealth, a State or a Territory; or

(b) an Australian police force;

whose functions include that enforcement or protection, for the

purposes of that enforcement or protection.

Secondary disclosure and use

(4) A person commits an offence if:

(a) the person is, or has been, an employee or officer of:

(i) an agency of the Commonwealth, a State or a Territory;

(ii) an Australian police force; and

(b) protected information has been disclosed under

subsection (2) or (3) to the agency or police force, as the case

may be; and

capacity as an employee or officer of the agency or police

force, as the case may be; and

(d) the person:

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

General requirements Part 5

Secrecy Division 2

Section 91

No. , 2015

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2015

(5) Subsection (4) does not apply if:

(a) the disclosure or use is with the consent of the Ombudsman;

and

(b) the disclosure or use is for the purpose of:

(i) enforcing the criminal law; or

(ii) enforcing a law imposing a pecuniary penalty; or

(iii) protecting the public revenue; or

(iv) protecting national security.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

Conditions

(6) The Ombudsman may, by writing, impose conditions to be

complied with in relation to protected information disclosed under

subsection (2) or (3).

(7) A person commits an offence if:

(a) the person is subject to a condition under subsection (6); and

(b) the person engages in conduct; and

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(8) An instrument under subsection (6) is not a legislative instrument.

Part 5 General requirements

Division 3 Review of decisions

Section 92

Australian Small Business and Family Enterprise Ombudsman Bill

2015

No. , 2015

Division 3--Review of decisions

92 Review by the Administrative Appeals Tribunal

An application may be made to the Administrative Appeals

Tribunal for a review of any of the following decisions:

(a) a decision under paragraph 9(1)(a), (b) or (c) that information

is not to be treated as confidential information;

(b) a decision under subparagraph 41(3)(a)(ii), 56(3)(a)(ii),

58(3)(a)(ii) or 63(3)(a)(ii) that it is not in the public interest

to delete information, a recommendation or an opinion from

a report or an advice before the report or advice is tabled or

published;

a dispute has refused to engage in, or has withdrawn from, an

alternative dispute resolution process.

General requirements Part 5

Other matters Division 4

Section 93

No. , 2015

Australian Small Business and Family Enterprise Ombudsman Bill

2015

Division 4--Other matters

93 Privileges not abrogated

Self-incrimination

(1) Nothing in this Act affects the right of a person to refuse to give

information or produce a document on the ground that the

information or the production of the document might tend to

incriminate the person or make the person liable to a penalty.

Legal professional privilege

(2) Nothing in this Act affects the right of a person to refuse to give

information or produce a document on the ground that:

(a) the information would be privileged from being given on the

ground of legal professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

Other legislation not affected

(3) The fact that this section is included in this Act does not imply that

the privilege against self-incrimination or legal professional

privilege is abrogated in any other Act.

94 Provisions of other Acts in relation to information and documents

Nothing in this Act affects the operation of any other law of the

Commonwealth to the extent that the other law limits the use or

disclosure of information or a document.

95 Review of assistance function

(1) The Minister must cause a review of the Ombudsman's assistance

function to be conducted at intervals determined under this section.

Part 5 General requirements

Division 4 Other matters

Section 96

Australian Small Business and Family Enterprise Ombudsman Bill

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No. , 2015

(2) Without limiting the matters to be covered by the review, the

review must consider the following matters:

(a) the kinds of assistance requested during the period being

reviewed;

(b) whether the assistance given was convenient and effective for

the operators of small businesses and family enterprises who

requested assistance;

conveniently and effectively assist the operators of small

businesses and family enterprises.

(3) The Minister must not appoint a person to conduct the review,

unless the Minister is reasonably satisfied that:

(a) the person is suitably qualified to conduct the review; and

(b) the person has sufficient independence from the

Ombudsman, the Minister and the Department to conduct the

review impartially.

(4) The first review must be completed, and a written report given to

the Minister, by a date determined by the Minister that is not later

than 30 June 2017.

(5) Each later review must be completed, and a written report given to

the Minister, by a date determined by the Minister that is not more

than 4 years after the date on which the report of the last review

was given to the Minister.

(6) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days after receiving it.

96 Legislative instrument

The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

AUSTRALIAN SMALL BUSINESS AND FAMILY ENTERPRISE OMBUDSMAN BILL 2015