Version incorporating amendments as at
10 February 2025
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 1
3 Definitions 1
Part 2—Small Business Commission 4
Division 1—Small Business Commission 4
4 Establishment of Small Business Commission 4
5 Functions and powers of Commission 4
6 Commission may request information to perform its functions 6
7 Obligations of public entities and public service bodies 6
8 Commission must seek consent before disclosing confidential information 7
9 Commission may refuse to deal with certain complaints 7
10 Commission's alternative dispute resolution function 8
11 Commission's investigatory function 8
12 Power to issue certificates 8
13 Advisory opinions 9
14 Staff 9
15 Delegation 9
16 Reporting 9
17 Ministerial directions 11
Division 2—Small Business Commissioner 11
18 Appointment of Small Business Commissioner 11
19 Terms and conditions of appointment 11
20 Acting Commissioner 12
21 Functions and powers of Commissioner 14
22 Validity of acts and decisions 14
23 Immunity for the alternative dispute resolution function 14
Part 4—Repeal, savings and transitional provisions 16
Division 1—Repeal of Small Business Commissioner Act 2003 16
71 Repeal of Small Business Commissioner Act 2003 16
Division 2—Savings and transitional provisions 16
72 Transitional provision relating to establishment of Small Business Commission 16
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Endnotes 17
1 General information 17
2 Table of Amendments 19
3 Explanatory details 20
Version No.004
Small Business Commission Act 2017
No. 16 of 2017
Version incorporating amendments as at
10 February 2025
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The main purposes of this Act are—
(a) to repeal the Small Business Commissioner Act 2003; and
(b) to re-enact the law in relation to the Small Business Commission with amendments; and
(c) to establish the Small Business Commission to enhance a competitive and fair operating environment for small business in Victoria.
2 Commencement
(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2) If a provision referred to in subsection (1) does not come into operation before 15 December 2017, it comes into operation on that day.
3 Definitions
In this Act—
alternative dispute resolution includes mediation and preliminary assistance;
Commission means the Small Business Commission established by section 4;
Commissioner means the Small Business Commissioner appointed under section 18;
S. 3 def. of Council amended by No. 9/2020 s. 390(Sch. 1 item 94).
Council has the same meaning as in the Local Government Act 2020;
S. 3 def. of dispute amended by No. 31/2024 s. 113(Sch. 1 item 32).
dispute means a contractual or commercial dispute between a small business and one or more of the following—
(a) another business;
(b) a public entity;
(c) a public service body;
(d) a Council;
(e) a non-profit organisation;
(f) a school, RTO, TAFE institute or university;
(g) a special body, other than—
(i) the IBAC within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011;
(ii) the office of the Ombudsman;
(iii) the office of the Freedom of Information Commissioner;
(iv) the Mental Health Tribunal;
(v) the Victorian Auditor-General's office;
(vi) VCAT;
(vii) Integrity Oversight Victoria within the meaning of the Integrity Oversight Victoria Act 2011;
(h) a professional association;
(i) a peak business, industry or trade body;
non-profit organisation means an organisation having as its whole or dominant purpose a charitable, benevolent, philanthropic or patriotic purpose but does not include a school, an educational institution, an educational company or an instrumentality of the State;
public entity has the same meaning as in the Public Administration Act 2004;
public service body has the same meaning as in the Public Administration Act 2004;
RTO has the same meaning as in the Education and Training Reform Act 2006;
school has the same meaning as in the Education and Training Reform Act 2006;
Secretary means the Secretary to the Department of Economic Development, Jobs, Transport and Resources;
special body has the same meaning as in the Public Administration Act 2004;
TAFE institute has the same meaning as in the Education and Training Reform Act 2006;
university has the same meaning as in the Education and Training Reform Act 2006.
Part 2—Small Business Commission
Division 1—Small Business Commission
4 Establishment of Small Business Commission
(1) The Small Business Commission is established.
(2) The Small Business Commission is to be constituted by the Commissioner.
5 Functions and powers of Commission
(1) The Commission has all the functions and may exercise all of the powers conferred on it by this or any other Act.
(2) The Commission has the following functions—
(a) to facilitate and encourage the fair treatment of small businesses in their commercial dealings with other businesses in the marketplace and with public entities, public service bodies, Councils and non-profit organisations;
(b) to promote informed decision-making by small businesses in order to minimise disputes;
(c) to receive and investigate complaints by small businesses regarding unfair market practices or commercial dealings, and provide alternative dispute resolution between the parties involved in the complaint;
(d) to make representations to an appropriate person or body on behalf of a small business that has made a complaint referred to in paragraph (c);
(e) to provide alternative dispute resolution to small businesses involved in disputes;
(f) to monitor and report to the Minister on any emerging trends in market practices that have an adverse effect on small businesses;
(g) to encourage the development and implementation of small business service charters within government to ensure small businesses receive high quality service;
(h) to monitor the operation and effectiveness of those small business service charters;
(i) as required by the Minister, and in consultation with the Secretary, to review proposed legislation in terms of its potential to adversely affect small businesses;
(j) to work collaboratively with similar small business commissioners in other States or the Territories, or similar Commonwealth agencies, to enhance conditions for small businesses;
(k) to investigate compliance with industry codes of practice and to assist with the development and provision of industry codes of practice that promote alternative dispute resolution;
(l) to advise the Minister generally about matters for which the Commission is responsible;
(m) to advise the Minister on the operation of this Act.
(3) The Commission may carry out its functions and exercise its powers at the request of the Minister or any other person or body or on its own motion.
(4) The Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(5) The functions of the Commission do not include the development of legislation and regulatory policy relating to small business and related matters.
(6) The Commission may advise or comment on the development of legislation and regulatory policy relating to small business and related matters.
(7) The Commission is responsible to the Secretary for the general conduct and management of the functions and activities of the Commission and must advise the Secretary in all matters relating to that conduct and management.
(8) The Secretary must take reasonable steps to ensure that adequate resources are made available to the Commission to enable it to carry out its functions and exercise its powers.
6 Commission may request information to perform its functions
(1) For the purpose of carrying out its functions, the Commission, by written notice delivered to a public entity or public service body, may make a reasonable request for the entity or body to provide information of a kind specified in the notice.
(2) The Commission must not disclose to any person any document that it has obtained from any agency (as defined in the Freedom of Information Act 1982) or Minister that is an exempt document under the Freedom of Information Act 1982 in the hands of the agency or Minister.
7 Obligations of public entities and public service bodies
A public entity or public service body must respond to a reasonable request under section 6(1) in a timely and efficient manner.
8 Commission must seek consent before disclosing confidential information
(1) This section applies if—
(a) information or a document is given to the Commission; and
(b) the person or body giving the information or document states that it is of a confidential nature.
(2) The Commission must not disclose the information or the contents of the document to any person or body unless—
(a) the person or body who supplied the information or document has consented to the disclosure; or
(b) the disclosure is lawfully required.
9 Commission may refuse to deal with certain complaints
(1) The Commission may refuse to deal with a complaint received by the Commission if the Commission is satisfied that—
(a) the complaint is trivial or vexatious; or
(b) the complaint is unlikely to be resolved through alternative dispute resolution; or
(c) the complaint could be more appropriately dealt with by a public entity, public service body or any other person.
(2) If the Commission refuses to deal with a complaint under subsection (1), the Commission must give written notice to the person who made the complaint and, if applicable, details of the public entity, public service body or person to be contacted regarding the complaint.
10 Commission's alternative dispute resolution function
(1) In performing its alternative dispute resolution function under this Act, the Commission may determine the form of alternative dispute resolution to be used in the dispute.
(2) The Commission may charge fees and expenses for performing its alternative dispute resolution function.
(3) Subsection (2) does not affect the power of the Commission to charge fees and expenses under any other Act.
11 Commission's investigatory function
The Commission may investigate any matter relevant to the Commission's functions and powers under this Act.
12 Power to issue certificates
(1) The Commission may certify in writing that alternative dispute resolution performed under this Act has failed to resolve a dispute or is unlikely to resolve a dispute.
(2) A certificate issued under subsection (1) must include details of the parties involved in the dispute.
(3) The Commission may certify that a party to the dispute has unreasonably refused to participate in alternative dispute resolution.
(4) A certificate issued under this section may be admitted in evidence in proceedings before VCAT or a court.
(5) The Commission is not required to give a party to the dispute an opportunity to be heard or make submissions to the Commission before issuing a certificate under this section.
13 Advisory opinions
(1) The Commission may refer a matter to VCAT for an advisory opinion under section 125 of the Victorian Civil and Administrative Tribunal Act 1998.
(2) For the purposes of subsection (1), the Commission may refer any matter relating to the performance of its functions or the exercise of its powers under this Act or under any other Act.
(3) Before the Commission refers a matter to VCAT, the Commission must be satisfied that the referral of the matter is in the public interest.
14 Staff
(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for the administration of this Act or to enable the Commission to perform its functions and exercise its powers.
(2) The Commission may engage consultants, contractors or agents for or in connection with the performance of its functions.
15 Delegation
The Commission, by instrument in writing, may delegate to any person employed under
Part 3 of the Public Administration Act 2004 any power under this Act, other than this power of delegation.
16 Reporting
(1) The Small Business Commission is not a public body within the meaning of the Financial Management Act 1994.
(2) The Commission must, within 3 months after the end of a financial year, submit a report to the Minister relating to the operation and performance of the Commission as if it were an annual report of operations under Part 7 of the Financial Management Act 1994.
(3) The Minister must cause the report to be laid before each House of the Parliament on or before 31 October each year or, if a House is not then sitting, on the first sitting day of that House after 31 October.
(4) Subject to subsection (5), a report submitted to the Minister may include details of a certificate issued under section 12(3) certifying that a party to a dispute has unreasonably refused to participate in alternative dispute resolution.
(5) Before the details of the certificate are included in the report, the Commission must give written notice to the party specifying—
(a) the Commission's intention to include the details of the certificate in the report; and
(b) that the party may make submissions to the Commission within 21 days giving reasons why details of the certificate should not be included in the report.
(6) If a party makes any submissions to the Commission within 21 days after receiving the notice, the Commission must consider those submissions.
(7) If the Commission intends to include in a report submitted to the Minister a comment or opinion that is adverse to any person, other than the details of a certificate referred to in subsection (4), the Commission must first give the person a reasonable opportunity to respond to the adverse material and fairly set out the response in the report.
(8) The Commission must not include in the report any information that would identify any person who is not the subject of any adverse comment or opinion unless the Commission—
(a) is satisfied that it is necessary or desirable to do so in the public interest; and
(b) is satisfied that it will not cause unreasonable damage to the person's reputation, safety or wellbeing; and
(c) states in the report that the person is not the subject of any adverse comment or opinion.
17 Ministerial directions
The Minister may give written directions to the Commission about the performance of the functions of the Commission except those functions under this or any other Act that are expressed to be not subject to the Minister's direction or control.
Division 2—Small Business Commissioner
18 Appointment of Small Business Commissioner
The Governor in Council may appoint a person to be the Small Business Commissioner.
19 Terms and conditions of appointment
(1) The Commissioner holds office for a term, not exceeding 5 years, specified in the Commissioner's instrument of appointment, and is eligible for reappointment for a term not exceeding 5 years.
(2) The Governor in Council may specify the terms and conditions of appointment in the Commissioner's instrument of appointment.
(3) The Commissioner is entitled to be paid the remuneration and allowances that are fixed from time to time by the Governor in Council.
(4) The Commissioner ceases to hold office if the Commissioner—
(a) becomes an insolvent under administration within the meaning of the Corporations Act; or
(b) is convicted of an indictable offence or an offence which, if committed in Victoria, would be an indictable offence.
(5) The Governor in Council may remove the Commissioner from office if the Commissioner has refused, neglected or failed to carry out the Commissioner's duties or has demonstrated inefficiency or misbehaviour in carrying out the Commissioner's duties.
(6) The Commissioner may at any time resign by writing signed and delivered to the Governor.
20 Acting Commissioner
(1) The Minister may appoint an Acting Commissioner—
(a) during a vacancy in the office of Commissioner; or
(b) during any period when the Commissioner is absent or, for any reason, is unable to perform the functions of Commissioner.
(2) The Minister may—
(a) appoint an Acting Commissioner for a period not exceeding 6 months; and
(b) determine the terms and conditions of appointment of the Acting Commissioner; and
(c) terminate the appointment of the Acting Commissioner at any time.
(3) An Acting Commissioner is entitled to receive the remuneration and allowances that the Commissioner would have been entitled to for performing the duties of office.
(4) While a person is acting in the office of the Commissioner in accordance with subsection (1), the Acting Commissioner has all the functions and powers of the Commissioner.
(5) If a person is acting in the office of the Commissioner in accordance with subsection (1)(b) and the office becomes vacant while the person is so acting, that person may continue to so act for 6 months after the date on which the vacancy occurred unless—
(a) the Minister otherwise directs; or
(b) the vacancy is filled before the end of that period.
(6) The validity of anything done by or in relation to a person purporting to act in the office of the Commissioner under an appointment made under subsection (1) is not to be called in question on the ground that—
the occasion for the person's appointment has not arisen; or
there is a defect or irregularity in or in connection with the person's appointment; or
the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
21 Functions and powers of Commissioner
(1) The Commissioner has all the functions and powers of the Commission.
(2) All acts and things done by the Commissioner in the name of or on behalf of the Commission are taken to have been done by the Commission.
22 Validity of acts and decisions
An act or decision of the Commission is not invalid—
(a) only because of a defect or irregularity in, or in connection with, the appointment of the Commissioner or Acting Commissioner; or
(b) on the ground that the occasion for the Acting Commissioner to act had not arisen or had ceased.
23 Immunity for the alternative dispute resolution function
The Commissioner or another person who performs an alternative dispute resolution function of the Commission under this Act or under any other Act is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—
(a) in the performance of the function; or
(b) in the reasonable belief that the act or omission was in the performance of the function.
Pt 3 (Headings and ss 24–70) repealed by No. 16/2017 s. 70.
Part 4—Repeal, savings and transitional provisions
Division 1—Repeal of Small Business Commissioner Act 2003
71 Repeal of Small Business Commissioner Act 2003
The Small Business Commissioner Act 2003 is repealed.
Division 2—Savings and transitional provisions
72 Transitional provision relating to establishment of Small Business Commission
(1) In this section—
commencement day means the day on which section 4 comes into operation;
2003 Act Commissioner means the Small Business Commissioner appointed under the Small Business Commissioner Act 2003 and holding office immediately before the commencement day.
(2) On and from the commencement day—
(a) The 2003 Act Commissioner is taken to be appointed as the Commissioner under section 18 on the same terms and conditions as set out in the instrument of appointment of the 2003 Act Commissioner as in force immediately before the commencement day; and
(b) any dispute in respect of which, immediately before the commencement day, a certificate had not been issued by the 2003 Act Commissioner may be concluded by the Commission.
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 9 November 2016
Legislative Council: 24 November 2016
The long title for the Bill for this Act was "A Bill for an Act to repeal the Small Business Commissioner Act 2003 and to re-enact the law in relation to the Small Business Commission with amendments, to establish the Small Business Commission so as to enhance a competitive and fair operating environment for small business in Victoria and for other purposes."
The Small Business Commission Act 2017 was assented to on 10 May 2017 and came into operation on 1 July 2017: Special Gazette (No. 216) 27 June 2017 page 1.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Small Business Commission Act 2017 by Acts and subordinate instruments.