Australian Small Business and Family Enterprise Ombudsman Rules 2026

The Rules are built around several concepts drawn from the Act. Understanding these concepts is necessary to grasp the effect of the instrument.

Prescribed Commonwealth agencies: The Act defines “agency of the Commonwealth” broadly. Departments are automatic. Bodies established for a public purpose under a Commonwealth law are automatic. Persons holding office under Commonwealth law are automatic. But the Act also allows the Minister to prescribe additional bodies by legislative instrument (s 8(1)(d)). Section 6 of the Rules exercises that power in favour of four bodies. The effect is that when the Ombudsman exercises its assistance function (s 8), it may assist small businesses in dealing with those prescribed bodies, just as it can with automatic Commonwealth agencies.

Prescribed State and Territory agencies: Analogous concept for State and Territory level. Automatic agencies include State/Territory Departments, bodies established by State/Territory law, and persons holding office under State/Territory law (s 8(2)(a)-(d)). The Minister may prescribe additional agencies (s 8(2)(e)). Section 7 of the Rules lists 20 bodies. Notably, these are mostly energy and water ombudsmen, law societies and bar associations. The Ombudsman can assist small businesses in dealings with these prescribed bodies.

Protected information: The Act defines protected information in section 85. It is information obtained by the Ombudsman or a staff member in the course of performing functions or exercising powers, that identifies or could identify a person, or that is commercial‑in‑confidence. The Act generally restricts disclosure of such information (s 86(1)). However, it permits disclosure to a range of bodies listed in the Act itself and to any body prescribed by the Rules. Section 8 of the Rules prescribes 104 bodies. The concept of protected information is critical: the list in section 8 is a gateway for the Ombudsman to share otherwise confidential information with enforcement agencies, regulators, industry ombudsmen and other bodies.

Prescribed professional disciplinary bodies: Separate from the general disclosure list, the Act permits disclosure to a professional disciplinary body if the information relates to possible unsatisfactory professional conduct or professional misconduct (s 86(1)(h)). The body must be prescribed by the Rules. Section 9 lists 24 bodies - law societies, bar associations and surveyors boards across all states and territories. The concept here is that the Ombudsman can refer matters that raise concerns about a professional’s conduct to the relevant disciplinary body without breaching the secrecy obligation.

Allowances to witnesses: Section 51 of the Act provides that a person summoned to attend a hearing is entitled to be paid allowances prescribed by the Rules. Section 10 of the Rules prescribes $75 per day or part of a day. This is a fixed sum, not linked to actual expenses.

These concepts all serve the Ombudsman’s broader statutory functions: assisting small business and family enterprises, investigating complaints, conducting inquiries, and making recommendations. The Rules define the universe of bodies the Ombudsman can interact with for assistance and for information sharing.

The Rules affect several distinct groups.

Small business owners and family enterprises are indirect but primary beneficiaries. When they seek assistance from the Ombudsman under section 8 of the Act, the Ombudsman can now deal with the prescribed bodies listed in sections 6 and 7. That includes bodies such as the Airline Customer Advocate, .au Domain Administration Limited, the Energy and Water Ombudsman (NSW) Limited and the Law Society of New South Wales. If a small business has a dispute or difficulty with any of these bodies, the Ombudsman may intervene or provide help. The prescribed lists expand the Ombudsman’s reach beyond automatic government agencies.

The Ombudsman itself gains clear statutory authority to disclose protected information to the 104 agencies listed in section 8 and the 24 professional disciplinary bodies listed in section 9. Without the Rules, the Ombudsman would be limited to the bodies listed in section 86(1)(a)-(f) of the Act. That list is narrow: the Commonwealth Ombudsman, state/territory ombudsmen with corresponding functions, ASIC, the Australian Competition Tribunal, the National Competition Council and the ACCC. The Rules greatly extend the Ombudsman’s capacity to share information with bodies that can act on it - tax authorities, police, fair trading offices, building commissions, small business commissioners, health ombudsmen, privacy commissioners and anti‑discrimination bodies.

The prescribed agencies themselves are affected because they may now receive protected information from the Ombudsman. This is permissive, not mandatory. An agency listed in section 8 may be contacted by the Ombudsman and provided with information that the Ombudsman considers relevant to the agency’s functions. The agency must handle that information in accordance with its own secrecy and privacy obligations, though disclosure by the Ombudsman is authorised under the Act (s 86(2) provides that such disclosure is not a contravention of any other law).

Professional disciplinary bodies listed in section 9 may receive information about a professional’s conduct. For example, if the Ombudsman uncovers evidence that a lawyer or surveyor has acted improperly, it can refer that information to the relevant law society or bar association for investigation or disciplinary action. That expands the enforcement ecosystem beyond the Ombudsman’s own powers.

Witnesses who are summoned to attend a hearing under section 48 of the Act are entitled to the $75 per day allowance prescribed by section 10. This affects any person or business required to give evidence. The amount is fixed and may not cover actual loss of earnings or travel costs.

Legal practitioners and surveyors are indirectly affected because their disciplinary bodies are included. The possibility that the Ombudsman may refer matters to those bodies creates an additional avenue for professional accountability.

The general public is not directly affected, but the Rules may facilitate more effective government oversight of small business issues through information sharing.

The Rules themselves do not create new duties or rights. They operationalise existing ones in the Act.

Duty of the Ombudsman to assist small business: The Act gives the Ombudsman a function to provide assistance to small business in dealing with agencies of the Commonwealth, States and Territories (s 8). The Rules extend the meaning of “agency” to include the prescribed bodies. The Ombudsman therefore has a duty (in the sense of a statutory function) to consider assisting small businesses in their dealings with those bodies. The duty is not absolute - the Ombudsman has discretion whether to assist - but the Rules remove any argument that the body is outside the Ombudsman’s purview.

Right of the Ombudsman to disclose protected information: The Act imposes a secrecy obligation (s 86(1)), but provides exceptions. The Rules create additional exceptions by prescribing bodies for paragraphs 86(1)(g) and (h). The Ombudsman has a right (subject to internal policies and any conditions in the Act) to disclose protected information to those bodies. This is not a duty to disclose, but a permission.

Right of the Ombudsman to summon witnesses: Section 48 of the Act gives the Ombudsman power to summon a person to give evidence or produce documents. The Rules prescribe the allowance to be paid (s 51). That creates a duty on the Ombudsman to pay the allowance, but also a right of the summoned person to receive it.

Duty of persons summoned to attend: The Act imposes an obligation on a person to comply with a summons (s 48). The allowance prescribed by the Rules does not diminish that duty; a person cannot refuse to attend on the ground that the allowance is inadequate. The allowance is a right, but not a condition precedent.

Right of small businesses to complain: Indirectly, by prescribing agencies, the Rules confirm that small businesses can raise complaints about those bodies with the Ombudsman. The Act already allows complaints about agencies of the Commonwealth, States and Territories. The Rules ensure that the listed bodies are within that definition.

Duty of agencies to cooperate: The Act requires agencies to provide information and assistance to the Ombudsman (ss 16-17). This duty applies to all agencies, whether automatic or prescribed. Failure to cooperate may lead to the Ombudsman reporting to the Minister or other consequences. The Rules do not alter that duty.

No new duties for prescribed bodies regarding protected information: The bodies listed in sections 8 and 9 have no statutory duty to receive or act on protected information. The disclosure is permissive. However, once they receive the information, they must handle it in accordance with their own applicable laws. For example, the Australian Federal Police may use the information for law enforcement purposes, subject to its own constraints.

The Rules thus clarify the scope of existing duties and rights under the Act, but do not themselves create independent obligations.

The Rules do not create any penalties. They are a legislative instrument that prescribes lists and an allowance. Enforcement of the underlying Act is a separate matter.

Penalties for non‑compliance with summons: Under section 48 of the Act, a person who fails to comply with a summons without reasonable excuse commits an offence. Section 51 provides that a person is entitled to an allowance prescribed by the Rules. The Rules set that allowance at $75 per day. If a person attends but claims the allowance is not paid, that is a contractual issue, not a criminal one. The attendance requirement remains. The Ombudsman could also seek a court order for compliance under section 49 of the Act.

Unauthorised disclosure of protected information: The Act makes it an offence for the Ombudsman or a staff member to disclose protected information other than as permitted by section 86 (s 87). The Rules expand the permitted recipients. If the Ombudsman discloses to a body that is not listed in the Act or the Rules, that could be an offence. Conversely, disclosure to a body listed in section 8 or 9 of the Rules is authorised and no penalty attaches.

Obstructing the Ombudsman: Section 52 of the Act creates an offence of obstructing or hindering the Ombudsman in performance of functions. That offence exists regardless of the Rules.

No penalty for agencies that fail to cooperate: The Act does not create a direct penalty for agencies that fail to provide assistance under sections 16-17. Instead, the Ombudsman can report the matter to the Minister (s 21) or include an adverse comment in a report. There is no criminal sanction.

Enforcement mechanisms: The Ombudsman can seek orders from the Federal Court or a State/Territory court to enforce a summons (s 49). The court may make orders requiring a person to attend or produce documents. Failure to comply with a court order could lead to contempt proceedings.

No private right of action: The Rules do not confer a private right to sue for breach. A small business that is dissatisfied with the Ombudsman’s assistance or disclosure decisions may have grounds for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), but that is a general remedy, not specific to the Rules.

Practical enforcement: The Ombudsman’s effectiveness depends largely on cooperation, transparency and public reporting. The expanded disclosure lists in the Rules enable the Ombudsman to refer matters to agencies that have coercive powers (e.g., police, tax office). In that sense, the Rules support indirect enforcement by enabling information to flow to bodies that can act.

The Rules operate within a broader legal framework. They do not exist in isolation.

Australian Small Business and Family Enterprise Ombudsman Act 2015: This is the primary statute. The Rules are made under it and give effect to several of its provisions. The relationship is explicit: section 5 of the Rules adopts definitions from the Act. The Rules do not override or modify the Act; they supplement it by specifying which bodies fall within certain definitions and which bodies can receive protected information.

Privacy Act 1988 (Cth): The protected information that the Ombudsman may disclose under the Rules often includes personal information. Section 86(2) of the Act provides that disclosure under section 86(1) is not a contravention of any other law, including the Privacy Act. The Rules thus authorise what would otherwise be an interference with privacy under Australian Privacy Principle 6 (use or disclosure). The effect is that the Rules operate as a statutory exception to the Privacy Act. Small businesses and individuals whose information is shared cannot bring a privacy complaint against the Ombudsman for disclosures to the listed bodies.

Freedom of Information Act 1982 (Cth): Documents held by the Ombudsman may be subject to FOI requests, but protected information is likely exempt under the FOI Act if disclosure would be contrary to the public interest or would breach a secrecy provision. However, the Ombudsman’s own reports and recommendations are generally published, and the FOI Act may apply to other records.

State and territory secrecy laws: When the Ombudsman discloses information to a prescribed state agency (e.g., NSW Fair Trading, Victoria Police), that agency must handle the information in accordance with its own secrecy and confidentiality obligations. The Ombudsman’s disclosure is authorised under Commonwealth law, but the receiving agency may have its own restrictions on further use or disclosure. The Rules do not address this; it is a matter for each agency’s enabling legislation.

Legal profession legislation: Each state and territory has laws regulating legal practitioners. The professional disciplinary bodies listed in section 9 (law societies, bar associations) are typically established or recognised under those laws. Disclosure of protected information about a legal practitioner to those bodies by the Ombudsman is authorised, and may trigger investigations under the relevant state Legal Profession Act. Similarly, surveyors boards are regulated under state surveying legislation.

Competition and Consumer Act 2010 (Cth): The ACCC and the Australian Competition Tribunal are already listed in section 86(1) of the Act. The Rules do not affect those provisions but add other bodies such as the Australian Energy Regulator and the Food and Grocery Code Supervisor. Those bodies operate under the Competition and Consumer Act, and the Ombudsman’s disclosure to them may assist in enforcement of that Act.

Telecommunications and industry codes: Bodies such as the Telecommunications Industry Ombudsman Limited and Tolling Customer Ombudsman Limited are prescribed. They operate under industry codes or schemes. The Rules allow the ASBFEO Ombudsman to share protected information with them, facilitating cross‑agency complaint handling.

No override of state ombudsman legislation: The Rules do not give the ASBFEO Ombudsman any authority over state ombudsmen. The state ombudsmen themselves are listed in section 8 (e.g., NSW Ombudsman’s Office, Ombudsman Western Australia). The disclosure permission is one‑way (ASBFEO to those bodies). The state ombudsmen have their own powers under state law.

Criminal laws: Disclosure to police forces (Australian Federal Police, state police) is permitted. That could assist in investigating fraud or other offences against small businesses. The Rules thus support law enforcement without requiring a warrant or other process.

The instrument does not contain a detailed amendment history within itself. What it does provide is clear:

The Australian Small Business and Family Enterprise Ombudsman Rules 2026 remakes the Australian Small Business and Family Enterprise Ombudsman Rules 2016. Schedule 1 repeals the 2016 Rules in their entirety.

The Rules were made on 27 February 2026 by the Minister for Small Business, Dr Anne Aly, and commence on the day after registration.

The 2016 Rules were the original instrument made under the Act after its commencement in 2016. Over a decade, the lists of prescribed agencies and bodies would have required updating to reflect changes in agency names, the creation of new bodies, and the abolition or renaming of others. The 2026 Rules appear to be a routine remake to consolidate those changes.

For example, the 2016 Rules listed “Australian Charities and Not‑for‑profits Commission” but that body was not a prescribed agency for disclosure in the 2016 Rules? We cannot verify from the source. However, the 2026 Rules include it. Similarly, the “Payment Times Reporting Regulator” was created by the Payment Times Reporting Act 2020 and is now listed. The “Cyber Security Centre” is listed as part of the Australian Signals Directorate.

The 2026 Rules also introduce a separate list for professional disciplinary bodies (section 9), which may not have been in the 2016 Rules (or was subsumed within the general list). The instrument separates them.

No other amendments are noted. The Rules are a standalone instrument, not amended since making.

The explanatory statement (not provided) would likely explain that the remake is to ensure the lists are current and complete. The instrument itself gives no further detail.

Practitioners should be aware that the Rules replace the 2016 Rules. Any reference to the earlier instrument in contracts, policies or procedures should be updated.

No litigation is recorded in the instrument or its context. The Rules are a procedural legislative instrument that prescribes lists. As such, they are unlikely to be the subject of direct litigation.

However, the Act itself has been considered by courts. For example, the Federal Court has considered the Ombudsman’s powers under the Act in judicial review proceedings. But that litigation concerns the Act, not the Rules.

The Rules could theoretically be challenged on grounds such as ultra vires (exceeding the power in the Act) or failure to comply with the Legislation Act 2003 (Cth) requirements for legislative instruments. For example, if a prescribed body did not fall within the scope of paragraph 8(1)(d) of the Act, a court could invalidate that part of the Rules. But no such challenge has been reported.

The disclosure lists could be relevant in cases about the confidentiality of Ombudsman information. A person might seek to restrain the Omdudsman from disclosing protected information to a particular body. The court would then consider whether that body is prescribed by the Rules and whether the disclosure falls within the exception.

For now, the litigation history is nil. The instrument operates without controversy.

Several practical surprises and traps arise from the Rules.

The $75 witness allowance is low. A witness who must attend a hearing may incur travel costs, lost income and other expenses. The allowance may not compensate for them. The Ombudsman may choose to pay more as a matter of policy? But the Rules fix the amount at $75 per day. The Act says the person is entitled to the prescribed allowance, no more. The note does not specify that the Ombudsman can increase it. If a small business owner is summoned, they should budget accordingly.

The lists are tied to the Australian Business Register names. Section 7 note says: “A name of a body or agency prescribed in this Part is the name of the body or agency as entered in the Australian Business Register.” If a body changes its name but continues to exist, the listed name may become inaccurate. The Rules would need amendment to reflect the new name. Until then, arguably the body remains prescribed because the entity is the same even if the name on the register changes? Unclear. The instrument does not say that a name change causes the prescription to lapse. But practitioners should monitor changes to bodies on the list.

The Ombudsman’s website is referenced for further lists. Notes 3 in sections 6 and 7 state that a list of agencies relevant to the assistance function may be found on the Ombudsman’s website. That is not the legal prescription; it is an informational note. The legal prescription is in the instrument itself. Relying on the website could mislead if the website is not updated synchronously.

State bodies that are not Departments are not automatically covered. Section 8(2)(b) of the Act covers bodies “established for a public purpose by or under a law of the State or Territory”. Many bodies, such as energy and water ombudsmen, are companies limited by guarantee and not established by statute. They are not automatic agencies. The Rules prescribe them explicitly. If a practitioner assumes a body is automatically an agency, they may be wrong. The prescribed lists are essential.

Disclosure to professional disciplinary bodies is permissive, not mandatory. The Ombudsman may choose not to refer. A small business who believes a professional has engaged in misconduct cannot compel the Ombudsman to disclose to the law society. The Ombudsman retains discretion.

Protected information disclosed to a prescribed body may be used for purposes beyond the Ombudsman’s functions. For instance, if the Ombudsman discloses information to the Australian Taxation Office, the ATO may use it for tax compliance purposes. The Ombudsman cannot control that. Small businesses should be aware that making a complaint to the Ombudsman about a tax issue could lead to the ATO receiving additional information.

The Ombudsman may share information across state lines. The lists include bodies from all states and territories. A small business in Queensland could have its information disclosed to the Victorian Small Business Commission if the matter involves a Victorian body. Privacy expectations should be managed.

No sunset or review clause. The Rules do not include a provision for automatic expiry. They continue indefinitely unless amended or repealed. Practitioners should check for future updates.

Compliance with the Rules is largely a matter for the Ombudsman and the prescribed bodies. Small businesses and other entities have limited direct obligations.

For the Ombudsman: Ensure that any disclosure of protected information is only to bodies listed in section 8 or 9 of the Rules, or to the bodies automatically allowed by the Act (s 86(1)(a)-(f)). Maintain records of disclosures. Ensure that the witness allowance of $75 per day is paid promptly. Review the lists periodically for accuracy and recommend amendments when bodies change name or new bodies appear.

For prescribed agencies (section 6, 7, 8): When contacted by the Ombudsman for assistance under section 8 of the Act, cooperate reasonably. Provide information as requested under sections 16-17 of the Act. If the Ombudsman discloses protected information to you, ensure your handling of that information complies with your own secrecy obligations, noting that the disclosure itself is authorised. Do not assume that the Ombudsman’s authorisation extends to further disclosure by you.

For professional disciplinary bodies (section 9): When receiving protected information about a professional, treat it confidentially subject to your own disciplinary rules. Use it only for the purpose of investigating or dealing with unsatisfactory professional conduct or professional misconduct. The Ombudsman may impose conditions on the disclosure; note any such conditions.

For small business owners and family enterprises: If you have a complaint or need assistance regarding a prescribed body listed in sections 6 or 7, you can approach the Ombudsman. Provide all relevant information. Understand that any protected information you provide may be disclosed to other bodies listed in section 8 or 9 if the Ombudsman considers it appropriate. Ask the Ombudsman about its privacy policy and potential disclosures before providing sensitive information. If you are summoned to a hearing, attend as required and claim the $75 daily allowance.

For witnesses: If summoned, comply. Keep a record of attendance dates and times. Claim the allowance promptly. The allowance is $75 per day or part of a day. Note that it may be taxable; seek advice.

For legal practitioners and surveyors: Be aware that your professional disciplinary body is listed. If you deal with the Ombudsman, any evidence of professional misconduct may be referred. That is an additional risk to consider in your engagement with the Ombudsman.

General compliance strategy: Monitor the Ombudsman’s website and the Federal Register of Legislation for amendments to the Rules. Update internal policies and privacy notices accordingly. If your organisation is listed, reassess whether it wants to be on the disclosure list; there is no opt‑out mechanism, but you could raise concerns with the Minister.