The Act creates a statutory Small Business Commissioner—appointed by the Governor on the Minister’s recommendation—to take complaints from small businesses, run low‑cost ADR (usually required before court), investigate and compel information, make representations, and coordinate with other agencies. It gives certification and reporting powers, enforcement penalties for non‑compliance, and staff/delegation arrangements.
It primarily benefits small businesses by lowering litigation costs and centralising advocacy, while imposing procedural, disclosure and compliance burdens on other businesses and government, and concentrating discretion and resource dependence in the Commissioner’s office.
This Act establishes a statutory office, the Small Business Commissioner, and sets out the Commissioner’s appointment, tenure, remuneration, staffing arrangements and powers (see ss 4-12). It sets legislative objectives for the office (s 13) and prescribes a suite of functions aimed at receiving and investigating complaints from small businesses, providing low‑cost alternative dispute resolution (ADR), conducting investigations, facilitating codes of practice, making representations on behalf of small businesses and advising the Minister (s 14). The Commissioner may decide whether to deal with a complaint (s 15), make preliminary inquiries (s 15(3)), require information (s 16), and require attendance at mediation and production of documents (s 18). The Act makes ADR a precondition for bringing most court proceedings arising from complaints handled by the Commissioner: a party cannot bring proceedings until the Commissioner certifies that ADR has failed (s 17). The Commissioner may certify outcomes of ADR, and those certificates are admissible in civil proceedings (s 19(1)-(2)), while statements made in ADR are generally inadmissible in legal proceedings (s 19(3)). The Commissioner may refer findings of persistent anti‑competitive conduct to the Secretary of the Department of Finance, Services and Innovation (s 20) and may enter into information sharing arrangements with relevant agencies (s 21). Procedural flexibility is expressly authorised: the Commissioner is to act informally, favour substantive merits over technicalities and determine procedures for investigations (s 22). The Act provides for delegations (s 24), annual and special reporting to Parliament (ss 25-28) with mandatory consultation with the Minister and with persons criticised (s 27), and a statutory review five years after assent (s 34). Enforcement mechanisms in the Act include penalties for failing to comply with mediation/production notices (s 18(2)), injunctive relief to protect investigations (s 30), and limited personal immunity for the Commissioner and staff acting in good faith (s 31). The Act binds the Crown (s 29) and contemplates regulations and transitional provisions (s 32).
Current sections
Direct links to the current provisions in Small Business Commissioner Act 2013.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2015 No 58, Sch 3.79 [1].
Part 2
Small Business Commissioner
Part 2 Small Business Commissioner
Part 2 Small Business Commissioner
Division 1
Appointment of Small Business Commissioner
Division 1 Appointment of Small Business Commissioner
Division 1 Appointment of Small Business Commissioner
4
Appointment of Small Business Commissioner
4 Appointment of Small Business Commissioner
4 Appointment of Small Business Commissioner
(1) The Governor may, on the recommendation of the Minister, appoint a Small Business Commissioner.
(2) The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office.
s 4: Am 2015 No 58, Sch 3.79 [2].
5
The Minister
5 The Minister
5 The Minister
The Commissioner is subject to the control and direction of the Minister in the exercise of the Commissioner’s functions, except in relation to the following matters:
(a) the investigation of complaints by small businesses,
(b) the provision of advice to the Minister,
(c) referrals under section 20,
(d) the contents of any report by the Commissioner.
6
Term of office and basis on which it is held
6 Term of office and basis on which it is held
6 Term of office and basis on which it is held
(1) The Commissioner holds office for such term, not exceeding 5 years, as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
(2) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(3) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
8
Vacancy in office
8 Vacancy in office
8 Vacancy in office
The office of Commissioner becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(e) becomes a mentally incapacitated person, or
(f) is convicted in New South Wales of an offence that is punishable by imprisonment or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(g) is removed from office under section 9.
9
Removal from office
9 Removal from office
9 Removal from office
The Governor may, on the recommendation of the Minister, remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour.
10
Filling of vacancy
10 Filling of vacancy
10 Filling of vacancy
If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
11
Appointment of acting Commissioner
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
(1) The Minister may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of the Commissioner. The person, while so acting, has all the functions of the Commissioner and is taken to be the Commissioner.
(2) The Minister may, at any time, remove a person from office as acting Commissioner.
(3) An acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
12
Staff
12 Staff
12 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions.
Note.
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
s 12: Subst 2015 No 58, Sch 3.79 [3].
Division 2
Objectives and functions of Commissioner
Division 2 Objectives and functions of Commissioner
Division 2 Objectives and functions of Commissioner
13
Objectives of Commissioner
13 Objectives of Commissioner
13 Objectives of Commissioner
The objectives of the Commissioner are as follows:
(a) to deal with issues concerning the small business sector in a neutral and independent manner,
(b) to provide a central point of contact for small businesses to make complaints about their commercial dealings with other businesses and about their dealings with government agencies,
(c) to encourage government agencies and larger businesses to enter into productive working relationships with small businesses,
(d) to facilitate the resolution of disputes involving small businesses through mediation and other appropriate forms of alternative dispute resolution,
(e) to facilitate and encourage the fair treatment of small businesses,
(f) to promote a fair operating environment in which small businesses can flourish,
(g) to identify and support measures to reduce the administrative burden for small businesses.
14
General functions of Commissioner
14 General functions of Commissioner
14 General functions of Commissioner
(1) The Commissioner has, for the purposes of giving effect to the Commissioner’s objectives, the following functions:
(a) to receive and deal with, subject to section 15, complaints made by or on behalf of small businesses (either on an individual or collective basis) regarding their dealings with other businesses and government agencies,
(b) to investigate complaints that are dealt with by the Commissioner or to refer any such complaint to such other person or body as the Commissioner considers appropriate,
(c) to provide low cost alternative dispute resolution services for small businesses,
(d) to make representations or take any action on behalf of small businesses (including making applications to be joined as a party in proceedings involving a small business) either at the Commissioner’s own initiative or at the request of a small business,
(e) to conduct investigations into the way in which small businesses are treated by other businesses or government agencies,
(f) to facilitate the development of codes of practice by industry that deal with issues concerning the small business sector,
(g) to advise the Minister, either at the Commissioner’s own initiative or at the request of the Minister, on any matter affecting small businesses or that is relevant to the Commissioner’s objectives or functions.
(2) Without limiting subsection (1), the Commissioner may do any other act or thing that is necessary or convenient for giving effect to the Commissioner’s objectives.
(3) The Commissioner has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
15
Decision to deal with complaint
15 Decision to deal with complaint
15 Decision to deal with complaint
(1) The Commissioner may deal with a complaint made by or on behalf of a small business only if the Commissioner is satisfied that:
(a) the subject-matter of the complaint relates to the unfair treatment of, or an unfair practice involving, the small business, or
(b) the complaint relates to an unfair contract to which the small business is a party, or
(c) it is in the public interest to deal with the complaint.
(2) Without limiting subsection (1), the Commissioner may decline to deal with a complaint if the Commissioner is of the opinion that the complaint is vexatious or trivial.
(3) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a complaint and may request further information from the complainant.
(4) The Commissioner must give notice to the complainant of the Commissioner’s decision on whether to deal with the complaint and (if the Commissioner decides to deal with the complaint) how the complaint is to be dealt with.
16
Requirement to provide information
16 Requirement to provide information
16 Requirement to provide information
(1) The Commissioner may, by notice in writing, require any person or government agency to provide such information relating to the person’s or agency’s dealings with small businesses as the Commissioner reasonably requires for the purposes of any investigation by the Commissioner under this Act.
(2) Any such notice may specify the time within which the information is required to be provided.
(3) A requirement under this section to provide information relating to a person’s or agency’s dealings with small businesses may include a requirement to answer questions relating to those dealings.
(4) A government agency is not required to provide any information under this section if there is an overriding public interest against the disclosure of the information for the purposes of the Government Information (Public Access) Act 2009 or if access to the information would otherwise be denied under that Act.
17
Alternative dispute resolution required before proceedings can be taken
17 Alternative dispute resolution required before proceedings can be taken
17 Alternative dispute resolution required before proceedings can be taken
(1) If an application is made to the Commissioner for assistance in resolving a complaint or other dispute involving a small business and the Commissioner decides to deal with the complaint or dispute, the matter to which the complaint relates or the dispute may not be the subject of any proceedings before any court unless and until the Commissioner has certified in writing that alternative dispute resolution services provided by the Commissioner under this Act have failed to resolve the matter or dispute.
(2) The Commissioner is to certify that alternative dispute resolution services have failed to resolve a complaint or other dispute involving a small business if the Commissioner is satisfied that any one or more of the parties involved in the matter or dispute has refused to take part in, or has withdrawn from, alternative dispute resolution services provided by the Commissioner.
(3) This section does not apply to or in respect of the following:
(a) proceedings before a court for an order in the nature of an injunction,
(b) proceedings for an offence,
(c) proceedings in relation to an industrial matter before the Industrial Relations Commission,
(4) This section does not operate to affect the validity of any decision made by a court.
18
Compulsory attendance at mediation and production of documents
18 Compulsory attendance at mediation and production of documents
18 Compulsory attendance at mediation and production of documents
(1) For the purposes of mediating a complaint or other dispute involving a small business, the Commissioner may, by notice in writing, require any person:
(a) to attend a meeting at a time and place specified in the notice, or
(b) to produce, at a time and place specified in the notice, to the Commissioner any document or thing described in the notice that is in the custody or under the control of the person and that, in the opinion of the Commissioner, would benefit the resolution of the complaint or dispute.
(2) A person must not:
(a) without reasonable excuse, refuse or fail to do anything required of the person by a notice under subsection (1), or
(b) in response to such a notice, make a statement that the person knows is false or misleading, or
(c) alter, suppress or destroy any document or thing that the person is required by such a notice to produce.
Maximum penalty on summary conviction: 100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.
(3) A government agency is not required to produce any document under this section if there is an overriding public interest against the disclosure of the document for the purposes of the Government Information (Public Access) Act 2009 or if access to the document would otherwise be denied under that Act.
19
Commissioner may certify outcome of dispute resolution assistance
19 Commissioner may certify outcome of dispute resolution assistance
19 Commissioner may certify outcome of dispute resolution assistance
(1) The Commissioner may certify in writing the outcome of any application made to the Commissioner for assistance in resolving a complaint or other dispute involving a small business.
(2) Any such certificate is admissible as evidence in any civil proceedings of the outcome of the application.
(3) Any statement or admission made in connection with any alternative dispute resolution services provided by the Commissioner under this Act is not admissible in any legal proceedings.
(4) A reference in this section:
(a) to a complaint or other dispute involving a small business does not include a reference to a retail tenancy dispute within the meaning of the Retail Leases Act 1994, or
(b) to the outcome of an application for assistance in resolving a complaint or other dispute involving a small business is a reference to whether or not the application was resolved and to whether any agreement was reached by the parties.
20
Referral of certain findings
20 Referral of certain findings
20 Referral of certain findings
The Commissioner may refer to the Secretary of the Department of Finance, Services and Innovation any finding by the Commissioner that a person or body has persistently engaged in anti-competitive practices that are in contravention of any law and that adversely affect the small business sector.
s 20: Am 2015 No 58, Sch 3.79 [4].
21
Exchange of information
21 Exchange of information
21 Exchange of information
(1) The Commissioner may enter into an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging any information that is held by the Commissioner or the agency.
(2) The information to which an information sharing arrangement may relate is limited to information that assists in the exercise of the functions of the Commissioner or of the relevant agency concerned.
(3) Under an information sharing arrangement, the Commissioner and the relevant agency are, despite any other Act or law, authorised:
(a) to request and receive information that is held by the other party to the arrangement, and
(b) to disclose that information to the other party.
(4) In this section:
relevant agency means any of the following:
(a) a government agency,
(b) the holder of a statutory office,
(c) any other person or body prescribed by the regulations.
22
General procedures of Commissioner
22 General procedures of Commissioner
22 General procedures of Commissioner
The Commissioner:
(a) is to act in an informal manner (including by avoiding conducting formal hearings) as far as possible, and
(b) is to act according to the substantial merits of the case without undue regard to technicalities, and
(c) may determine the procedures to be followed in exercising the Commissioner’s functions under this Act, including the procedures to be followed in any investigation conducted by the Commissioner.
23
Expert assistance
23 Expert assistance
23 Expert assistance
For the purposes of the exercise of any of the Commissioner’s functions, the Commissioner may engage the services of any person for the purpose of getting expert assistance.
24
Delegation
24 Delegation
24 Delegation
The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to:
(a) any member of staff of the Commissioner, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
Division 3
Reports by Commissioner
Division 3 Reports by Commissioner
Division 3 Reports by Commissioner
25
Annual report to Parliament on Commissioner’s work and activities
25 Annual report to Parliament on Commissioner’s work and activities
25 Annual report to Parliament on Commissioner’s work and activities
The Commissioner is, as soon as practicable after 31 December in each year, required to prepare a report on the Commissioner’s work and activities for the 12 months ending on that 31 December and provide a copy of the report to the Presiding Officer of each House of Parliament.
26
Special reports to Parliament
26 Special reports to Parliament
26 Special reports to Parliament
(1) The Commissioner may, at any time, make a special report on any matter relating to the functions of the Commissioner and provide a copy of the report to the Presiding Officer of each House of Parliament.
(2) A report under this section may, without limitation, include recommendations in relation to such matters as the Commissioner considers relevant to the small business sector.
(3) The Commissioner may include in a report under this section a recommendation that the report be made public immediately.
27
Furnishing of draft reports to Minister and others
27 Furnishing of draft reports to Minister and others
27 Furnishing of draft reports to Minister and others
(1) The Commissioner must:
(a) provide the Minister with a draft of each report that is to be provided to the Presiding Officers under this Division, and
(b) give the Minister a reasonable opportunity to make submissions, either orally or in writing, in relation to the draft report.
(2) The Commissioner must not make a report to the Presiding Officers under this Division that contains any matter that is, either expressly or impliedly, critical of a government agency or any person unless the Commissioner has given the agency or person concerned the opportunity to make submissions, either orally or in writing, in relation to the matter.
(3) The Commissioner is not required to amend a report in light of any submissions made by the Minister, a government agency or other person but must, before finalising a report, consider any such submissions before the report is provided to the Presiding Officers.
(4) If a report contains matter that is critical of a government agency or person and the agency or person concerned has made objections in relation to that matter, the report must indicate that any such objection has been made.
28
Provisions relating to reports to Parliament
28 Provisions relating to reports to Parliament
28 Provisions relating to reports to Parliament
(1) A copy of a report provided to the Presiding Officer of a House of Parliament under this Division must be laid before that House on the next sitting day of that House after it is received by the Presiding Officer.
(2) If a report includes a recommendation by the Commissioner that the report be made public immediately, the Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.
(3) A report that is made public by the Presiding Officer of a House of Parliament before it is laid before that House attracts the same privileges and immunities as it would if it had been laid before that House.
(4) A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied as regards a report purporting to have been made or furnished in accordance with this Division.
(5) In this Division, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly. If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council and, if there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly.
Part 3
Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
29
Act to bind Crown
29 Act to bind Crown
29 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
30
Injunctions relating to investigations by Commissioner
30 Injunctions relating to investigations by Commissioner
30 Injunctions relating to investigations by Commissioner
(1) The Supreme Court may, on application by the Commissioner, grant an injunction in such terms as the Court determines to be appropriate if satisfied that a person has engaged, or is proposing to engage, in conduct that constituted, is constituting, or would constitute interfering with an investigation conducted by the Commissioner.
(2) An injunction may be granted under this section as an interim injunction (without an undertaking being required as to damages or costs) or as a permanent injunction.
31
Personal liability of Commissioner and others
31 Personal liability of Commissioner and others
31 Personal liability of Commissioner and others
A matter or thing done (or omitted to be done) by the Commissioner, a member of staff of the Commissioner or a person acting under the direction of the Commissioner does not, if the matter or thing was done (or omitted to be done) in good faith for the purpose of exercising a function under this or any other Act, subject the Commissioner, the member of staff or the person so acting personally to any action, liability, claim or demand.
32
Regulations
32 Regulations
32 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(3) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(4) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
33
33
33
s 33: Rep 1987 No 15, sec 30C.
34
Review of Act
34 Review of Act
34 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1
Schedule 1
Schedule 1 (Repealed)
sch 1: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Small Business Commissioner Act 2013.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act:
Commissioner means the Small Business Commissioner appointed under this Act.
function includes a power, authority or duty, and exercise a function includes perform a duty.
government agency means:
(a) a public authority constituted by or under an Act, or
(b) a NSW Government agency, or
(c) a Public Service agency within the meaning of the Government Sector Employment Act 2013, or
(d) a council (within the meaning of the Local Government Act 1993) or other local authority, or
(e) a State owned corporation.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2015 No 58, Sch 3.79 [1].
Part 2 Small Business Commissioner
Part 2 Small Business Commissioner
Part 2 Small Business Commissioner
Division 1 Appointment of Small Business Commissioner
Division 1 Appointment of Small Business Commissioner
Division 1 Appointment of Small Business Commissioner
4 Appointment of Small Business Commissioner
4 Appointment of Small Business Commissioner
4 Appointment of Small Business Commissioner
(1) The Governor may, on the recommendation of the Minister, appoint a Small Business Commissioner.
(2) The office of Commissioner is a statutory office and the provisions of the relating to the employment of Public Service employees do not apply to that office.
Main concepts
The Act organises around a few core legal and administrative concepts. First, it creates a dedicated office authorised to act as a single, neutral contact point for disputes involving small businesses (s 13(b)-(d)). The Commissioner’s role is explicitly framed as neutral and independent in objective language (s 13(a)) and the office is subject to ministerial direction except in defined areas such as complaint investigations, advice to the Minister, referrals and report contents (s 5). Second, the Act prioritises ADR: the Commissioner is empowered to provide low‑cost ADR (s 14(1)(c)); the Act requires use of Commissioner‑provided ADR before parties may commence most court proceedings arising from the dispute (s 17); and the Commissioner may compel attendance at mediation and production of documents to assist resolution (s 18(1)). Third, the Act mixes investigatory and facilitative powers: the Commissioner may investigate complaints (s 14(1)(b), (e)), refer complaints (s 14(1)(b)), make representations and intervene in proceedings (s 14(1)(d)), and promote industry codes of practice (s 14(1)(f)). Fourth, the Act scaffolds information acquisition through compulsory notices (s 16) and production notices for mediation (s 18), while preserving statutory public‑access exemptions under the Government Information (Public Access) Act 2009 for government agencies (s 16(4), s 18(3)). Fifth, the Act creates evidentiary rules calibrated to ADR: the Commissioner’s certificate of outcome is admissible in civil proceedings (s 19(2)), but statements or admissions made in ADR are not admissible (s 19(3)). Sixth, the Act contemplates inter‑agency cooperation via information sharing arrangements that authorise disclosure notwithstanding other Acts (s 21(1)-(3)). Finally, governance mechanisms include the requirement to consult the Minister on draft reports and to give criticised parties an opportunity to make submissions before finalising critical material (s 27), and an obligation to table annual and special reports to Parliament (ss 25-26) and a statutory review timeline (s 34). Note: the text does not define the term “small business” in the supplied provisions; the Act repeatedly refers to “small business” as the class of persons the Commissioner is to assist (see s 13-s 19), so operational definition may be supplied elsewhere or by policy.
Who it affects
The Act identifies several affected groups directly and indirectly. Primary beneficiaries are “small businesses” as referenced repeatedly in the objects and functions (e.g. ss 13-14). The Act does not include a definition of “small business” in the provided text (cf. s 3 where only Commissioner, function and government agency are defined), so the absence of an internal statutory definition within the supplied provisions means eligibility and scope may depend on administrative practice, external definitions or other instruments not contained here. Secondary affected parties include other businesses with whom small businesses deal, since they may be the subject of complaints, may be required to attend mediation, produce documents and face penalties for non‑compliance (s 14(1)(a), s 18). Government agencies are both potential respondents to complaints and potential sources of information; government agency is defined broadly in s 3 to include public authorities under Acts, NSW Government agencies, Public Service agencies under the Government Sector Employment Act 2013, councils, other local authorities and State owned corporations (s 3(1)). Government agencies are subject to requests for information under s 16, subject to public interest or access exemptions under the Government Information (Public Access) Act 2009 (s 16(4) and s 18(3)). The Minister, Governor and Secretary of the Department of Finance, Services and Innovation are decision points within the governance chain: the Governor appoints and removes the Commissioner on the Minister’s recommendation (ss 4, 9), the Minister may direct the Commissioner except in limited areas (s 5), and the Commissioner may refer anti‑competitive findings to the Secretary (s 20). Courts are affected: the Act bars most court proceedings until ADR has been attempted and the Commissioner certifies failure (s 17), and the Supreme Court may grant injunctions to protect Commissioner investigations (s 30). Employees and staff engaged to assist the Commissioner are also affected by employment arrangements through the Government Sector Employment Act 2013 and constitutional limitations on direct hiring (s 12 note). Corporations and individuals who refuse to comply with notices to attend or produce documents at mediation face penalties (s 18(2)). Finally, entities entering into information sharing arrangements with the Commissioner (s 21) will be authorised to exchange information despite otherwise limiting laws, affecting their internal information governance.
Key duties and rights
Duties of the Commissioner and procedural rights of parties are articulated in the Act. The Commissioner’s statutory duties include receiving and dealing with complaints from or on behalf of small businesses (s 14(1)(a)), investigating or referring complaints (s 14(1)(b)), providing low‑cost ADR (s 14(1)(c)), making representations or taking action on behalf of small businesses (s 14(1)(d)), conducting investigations into treatment of small businesses (s 14(1)(e)), facilitating codes of practice (s 14(1)(f)), and advising the Minister (s 14(1)(g)). The Commissioner must decide whether to deal with a complaint and must be satisfied that the complaint relates to unfair treatment, an unfair contract or the public interest before proceeding (s 15(1)). The Commissioner may decline vexatious or trivial complaints (s 15(2)) and must give notice to complainants of decisions and the mode of handling (s 15(3)-(4)). The Commissioner may require persons or government agencies to provide information (s 16(1)) and may require attendance and production of documents for mediation (s 18(1)). Persons served with mediation or production notices have duties not to refuse without reasonable excuse, not to give false or misleading statements and not to alter, suppress or destroy required documents (s 18(2)). Rights include procedural protections and evidentiary rules: a complainant has the right to be informed how the Commissioner will deal with their complaint (s 15(4)); parties have access to low‑cost ADR services (s 14(1)(c)); and statements made in ADR are not admissible in proceedings (s 19(3)), which can be framed as a confidentiality‑oriented protection. At the same time, the Commissioner’s certificate of ADR outcome is admissible evidence in civil proceedings (s 19(2)), which gives parties a pathway to enforce outcomes or to prove ADR participation. Government agencies have a specific conditional right to refuse to provide information where an overriding public interest or access denial exists under the Government Information (Public Access) Act 2009 (s 16(4), s 18(3)). The Act also provides the Commissioner the right to enter into information sharing arrangements that displace other secrecy laws for the purpose of exercising functions (s 21(3)). Finally, the Commissioner and staff have limited personal immunity for acts or omissions done in good faith in the exercise of functions (s 31), which constrains personal liability claims against them.
Penalties and enforcement
Enforcement within the Act is sector‑specific and primarily administrative with limited criminal or quasi‑criminal sanctions. The principal monetary penalty is contained in s 18(2). Where the Commissioner issues a notice under s 18(1) requiring attendance at mediation or production of documents, a person must not without reasonable excuse refuse or fail to comply, give false or misleading statements, or alter, suppress or destroy required documents (s 18(2)). The prescribed maximum penalty on summary conviction is 100 penalty units for a corporation and 50 penalty units for an individual (s 18(2) penalty statement). The Act also provides a civil enforcement route: the Supreme Court may, on application by the Commissioner, grant an injunction in appropriate terms if a person has engaged, or is proposing to engage, in conduct that interferes with an investigation by the Commissioner (s 30(1)). That injunction may be interim (explicitly without undertaking as to damages or costs) or permanent (s 30(2)), which gives the Commissioner access to injunctive relief to protect investigations even before final determination. The Commissioner may refer findings that a person or body has persistently engaged in anti‑competitive practices to the Secretary of the Department of Finance, Services and Innovation (s 20). The Act does not itself create criminal offences beyond the contraventions punishable by penalty units in s 18(2), nor does it specify administrative pecuniary penalties other than those summary penalties; other statutory regimes remain available for competition or consumer offences. Operationally, the Commissioner’s certificates are admissible in civil proceedings (s 19(2)), which strengthens enforceability of ADR outcomes in subsequent litigation. Conversely, statements and admissions made during ADR are not admissible (s 19(3)), which changes evidential incentives in settlement talks. The Commissioner and staff are protected from personal liability for acts done in good faith in exercise of functions (s 31), which limits the availability of personal damages claims against individuals acting under the Act.
How it interacts with other laws
The Act expressly cross‑references and preserves the operation of several other statutes and, in some limited respects, displaces other laws. Government agency is defined by reference to public authorities under any Act, NSW Government agencies, Public Service agencies within the meaning of the Government Sector Employment Act 2013, councils under the Local Government Act 1993, and State owned corporations (s 3(1)). The Commissioner’s office is a statutory office and employment provisions of the Government Sector Employment Act 2013 do not apply to the office of Commissioner (s 4(2)), while staff assisting the Commissioner may be employed under that Act (s 12). The Act defers disclosure decisions for government agencies to the Government Information (Public Access) Act 2009: a government agency is not required to provide information under s 16 or to produce documents under s 18 if there is an overriding public interest against disclosure or if access would otherwise be denied under that Act (s 16(4), s 18(3)). The Act excludes certain proceedings from the ADR precondition: injunction proceedings, criminal proceedings, industrial matters before the Industrial Relations Commission, and retail tenancy disputes under the Retail Leases Act 1994 (s 17(3)(a)-(d)), and similarly the evidentiary provisions exclude retail tenancy disputes in s 19(4)(a). The Commissioner’s remuneration is linked to the Statutory and Other Offices Remuneration Act 1975 (s 7(a)). Information sharing arrangements under s 21(3) authorise disclosure and requests for information "despite any other Act or law", which means participating relevant agencies may set aside otherwise applicable secrecy or confidentiality restrictions when acting under an authorised arrangement, limited to information that assists exercise of functions (s 21(2)-(3)). The Constitution Act 1902 is noted (in s 12 note) as precluding the Commissioner from employing staff, which channels staff employment to public service arrangements (s 12). The Act binds the Crown in right of New South Wales (s 29). The Act leaves intact other statutory remedies and court powers, e.g. it does not affect the validity of any court decision (s 17(4)). Regulations under s 32 may contain savings or transitional provisions consequent on this Act or amending Acts, and may have retrospective effect subject to specified protections (s 32(2)-(4)).
Amendment history
The supplied text shows a limited number of amendment annotations and cross‑references. Section 3 carries an amendment notation "s 3: Am 2015 No 58, Sch 3.79 [1]" indicating that the definitions provision was amended by the 2015 Act identified in the note. Section 4 includes "s 4: Am 2015 No 58, Sch 3.79 [2]" indicating the appointment provision was amended by the same 2015 instrument. Section 12 includes "s 12: Subst 2015 No 58, Sch 3.79 [3]" showing substitution of that provision in 2015. Section 20 includes "s 20: Am 2015 No 58, Sch 3.79 [4]" marking amendment to the referral provision. Schedule 1 is marked as repealed ("Schedule 1 (Repealed)") and there is a stray note "s 33: Rep 1987 No 15, sec 30C" adjacent to section 33 which indicates a prior repeal, although s 33 itself is not substantive in the supplied text. Section 7 references the Statutory and Other Offices Remuneration Act 1975 for remuneration entitlements, which is a cross‑statute dependency rather than an amendment note. The Act also contains multiple references to other statutes (Government Sector Employment Act 2013; Government Information (Public Access) Act 2009; Local Government Act 1993; Retail Leases Act 1994; Constitution Act 1902) which may have been relied upon when amending or interpreting provisions, but the supplied text does not include a comprehensive amendment schedule beyond the 2015 annotations and the repealed Schedule 1 note. The Act mandates a five‑year review to determine whether policy objectives remain valid and the terms remain appropriate; that review is to be undertaken as soon as possible after five years from assent and a report tabled within 12 months after that five‑year period (s 34(1)-(3)). The supplied text does not show later amendments beyond the 2015 references or provide dates of assent or proclamation; those specifics are not contained in the provided material.
Litigation history
The supplied text contains no case citations, judicial interpretations, or a recorded litigation history. There are no named cases in the statute text, and no schedule of judicial authorities. The Act does, however, create routes by which disputes might enter judicial processes, which establishes likely avenues for litigation even though the text records no precedents. Mechanics that may lead to litigation include injunctions to protect Commissioner investigations under s 30; injunctions can be sought by the Commissioner in the Supreme Court where a person has engaged, or proposes to engage, in conduct interfering with an investigation. The admissibility rules in s 19 create litigation issues: the Commissioner’s certificate of ADR outcome is admissible in civil proceedings (s 19(2)), which may be relied on in court; by contrast, statements or admissions made in connection with ADR are not admissible (s 19(3)), which shapes litigation strategy and evidentiary disputes. The Act restricts commencement of court proceedings in most cases until ADR has been certified to have failed (s 17), which may generate interlocutory litigation about whether the Commissioner had jurisdiction, whether ADR has been attempted, whether s 17 applies to particular proceedings, and whether the Commissioner’s certificate is valid. The Act also contemplates referrals to government departments for competition concerns (s 20), which could prompt separate regulatory or enforcement action. Because the statute itself does not record litigation, practitioners must rely on later judicial decisions, which are not present in the supplied materials. The absence of recorded litigation in the text is therefore informational: the Act provides tools likely to be litigated (injunctions, admissibility, preclusion of proceedings until ADR), but the text does not supply examples or outcomes.
Gotchas
Several operational pitfalls follow directly from the Act’s text. First, the Act repeatedly uses “small business” as the focal class but the supplied provisions do not define that term (see s 3 for defined terms; “small business” is not there). Practitioners should not assume a statutory numerical threshold exists in this Act itself; eligibility could be determined administratively or by reference to other instruments. Second, the ADR gateway is compulsory for most disputes the Commissioner deals with: parties cannot commence court proceedings until the Commissioner certifies that ADR has failed (s 17(1)). That creates a jurisdictional bar that can be overlooked, and failure to obtain the Commissioner’s certification may result in premature litigation that the Act says is disallowed (s 17(1)). Third, while ADR statements are protected from admissibility in proceedings (s 19(3)), the Commissioner’s certificate of ADR outcome is admissible (s 19(2)). Parties should note that settlement behaviour in mediation is insulated from directly admissible statements, but outcomes certified by the Commissioner can be used in civil proceedings, which may change incentives around settlement terms and drafting. Fourth, compulsory production and attendance notices carry monetary penalties (s 18(2)), and the Act criminalises altering, suppressing or destroying required documents (s 18(2)(c)). Parties must preserve documents when a matter is in the Commissioner’s process. Fifth, government agencies have an express right not to provide information if there is an overriding public interest against disclosure under the Government Information (Public Access) Act 2009 (s 16(4) and s 18(3)). That statutory carve‑out creates asymmetry between private parties (who must comply with notices under s 16 and s 18) and government entities that can withhold under public interest grounds. Sixth, the Commissioner is subject to ministerial control and direction generally (s 5), with limited exceptions (investigations, advice, referrals, and report content). In practice, the requirement to provide the Minister a draft of every report and a reasonable opportunity for submissions (s 27(1)) is a procedural constraint that may affect timing and content of public reporting. Seventh, information sharing arrangements under s 21(3) authorise disclosure notwithstanding other Acts, but are limited to information that assists the exercise of the Commissioner’s or relevant agency’s functions (s 21(2)); parties must be attentive to how such arrangements change confidentiality expectations. Eighth, the Act provides the Commissioner and staff with personal immunity for good faith acts under the Act (s 31), reducing the scope for damages claims against individuals. Ninth, the Constitution Act note at s 12 indicates the Commissioner cannot directly employ staff, which channels staffing to public service arrangements and may create administrative complexity for resourcing. Practitioners should map these structural features when advising clients.
How to comply
Practical compliance steps for small businesses, other businesses, government agencies and counsel follow from the Act’s requirements. First, preserve documents and communication relevant to any dispute from the moment a complaint is contemplated or made: s 18(2)(c) makes alteration, suppression or destruction of documents in response to a production notice an offence subject to penalty units. Second, if served with a notice under s 16 (information demand) or s 18 (attendance/production for mediation), comply promptly unless there is a reasonable excuse, and where a government agency, assess public interest and access grounds under the Government Information (Public Access) Act 2009 as s 16(4) and s 18(3) permit withholding. Third, participate in the Commissioner’s ADR process: s 17 establishes that parties generally cannot commence court proceedings arising from a matter dealt with by the Commissioner until the Commissioner certifies ADR has failed. If litigation is contemplated, seek the Commissioner’s certificate or ensure an exclusion under s 17(3) applies (injunctions, offences, industrial matters, or retail tenancy disputes). Fourth, when engaging in ADR, be cognisant that admissions and statements exchanged in mediation are not admissible in legal proceedings (s 19(3)), but the Commissioner’s certificate of the outcome can be admitted (s 19(2)). Draft settlement agreements and ADR communications with this evidentiary framework in mind. Fifth, if the Commissioner’s draft report contains criticism of your agency or client, use the statutory right to make submissions before the report is finalised (s 27(2)-(3)); the report must note any objections (s 27(4)). Sixth, for government agencies, establish internal processes to assess and respond to information requests under s 16 and production notices under s 18, and evaluate participation in information sharing arrangements under s 21 consistent with statutory limits (s 21(2)-(3)). Seventh, ensure that any persons delegated to exercise Commissioner functions are authorised under the regulations or are members of staff (s 24), and that staff employment conforms to the Government Sector Employment Act 2013 arrangements referenced in s 12 and the constitutional constraint noted. Eighth, where investigations could be interfered with, avoid conduct that could attract injunctive relief under s 30; legal advice is prudent if opposing or contesting Commissioner investigations. Ninth, if the Commissioner is to be criticised or implicated, be ready to engage in the Commissioner’s informal procedures (s 22) and to seek expert assistance if appropriate (s 23). Finally, counsel should monitor the Minister’s review under s 34 (statutory five‑year review) and any regulations made under s 32 that may introduce savings, transitional arrangements or procedural rules affecting compliance.
Division 1Appointment of Small Business Commissioner
The Commissioner is subject to the control and direction of the Minister in the exercise of the Commissioner’s functions, except in relation to the following matters:
(a) the investigation of complaints by small businesses,
(b) the provision of advice to the Minister,
(c) referrals under section 20,
(d) the contents of any report by the Commissioner.
6 Term of office and basis on which it is held
6 Term of office and basis on which it is held
6 Term of office and basis on which it is held
(1) The Commissioner holds office for such term, not exceeding 5 years, as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
(2) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(3) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
7 Remuneration
7 Remuneration
7 Remuneration
The Commissioner is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to time determine.
8 Vacancy in office
8 Vacancy in office
8 Vacancy in office
The office of Commissioner becomes vacant if the holder:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Governor, or
(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(e) becomes a mentally incapacitated person, or
(f) is convicted in New South Wales of an offence that is punishable by imprisonment or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(g) is removed from office under section 9.
9 Removal from office
9 Removal from office
9 Removal from office
The Governor may, on the recommendation of the Minister, remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour.
10 Filling of vacancy
10 Filling of vacancy
10 Filling of vacancy
If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
11 Appointment of acting Commissioner
(1) The Minister may, from time to time, appoint a person to act in the office of the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of the Commissioner. The person, while so acting, has all the functions of the Commissioner and is taken to be the Commissioner.
(2) The Minister may, at any time, remove a person from office as acting Commissioner.
(3) An acting Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
12 Staff
12 Staff
12 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise his or her functions.
Note.
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
s 12: Subst 2015 No 58, Sch 3.79 [3].
Division 2 Objectives and functions of Commissioner
Division 2 Objectives and functions of Commissioner
Division 2 Objectives and functions of Commissioner
13 Objectives of Commissioner
13 Objectives of Commissioner
13 Objectives of Commissioner
The objectives of the Commissioner are as follows:
(a) to deal with issues concerning the small business sector in a neutral and independent manner,
(b) to provide a central point of contact for small businesses to make complaints about their commercial dealings with other businesses and about their dealings with government agencies,
(c) to encourage government agencies and larger businesses to enter into productive working relationships with small businesses,
(d) to facilitate the resolution of disputes involving small businesses through mediation and other appropriate forms of alternative dispute resolution,
(e) to facilitate and encourage the fair treatment of small businesses,
(f) to promote a fair operating environment in which small businesses can flourish,
(g) to identify and support measures to reduce the administrative burden for small businesses.
14 General functions of Commissioner
14 General functions of Commissioner
14 General functions of Commissioner
(1) The Commissioner has, for the purposes of giving effect to the Commissioner’s objectives, the following functions:
(a) to receive and deal with, subject to section 15, complaints made by or on behalf of small businesses (either on an individual or collective basis) regarding their dealings with other businesses and government agencies,
(b) to investigate complaints that are dealt with by the Commissioner or to refer any such complaint to such other person or body as the Commissioner considers appropriate,
(c) to provide low cost alternative dispute resolution services for small businesses,
(d) to make representations or take any action on behalf of small businesses (including making applications to be joined as a party in proceedings involving a small business) either at the Commissioner’s own initiative or at the request of a small business,
(e) to conduct investigations into the way in which small businesses are treated by other businesses or government agencies,
(f) to facilitate the development of codes of practice by industry that deal with issues concerning the small business sector,
(g) to advise the Minister, either at the Commissioner’s own initiative or at the request of the Minister, on any matter affecting small businesses or that is relevant to the Commissioner’s objectives or functions.
(2) Without limiting subsection (1), the Commissioner may do any other act or thing that is necessary or convenient for giving effect to the Commissioner’s objectives.
(3) The Commissioner has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
15 Decision to deal with complaint
15 Decision to deal with complaint
15 Decision to deal with complaint
(1) The Commissioner may deal with a complaint made by or on behalf of a small business only if the Commissioner is satisfied that:
(a) the subject-matter of the complaint relates to the unfair treatment of, or an unfair practice involving, the small business, or
(b) the complaint relates to an unfair contract to which the small business is a party, or
(c) it is in the public interest to deal with the complaint.
(2) Without limiting subsection (1), the Commissioner may decline to deal with a complaint if the Commissioner is of the opinion that the complaint is vexatious or trivial.
(3) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a complaint and may request further information from the complainant.
(4) The Commissioner must give notice to the complainant of the Commissioner’s decision on whether to deal with the complaint and (if the Commissioner decides to deal with the complaint) how the complaint is to be dealt with.
16 Requirement to provide information
16 Requirement to provide information
16 Requirement to provide information
(1) The Commissioner may, by notice in writing, require any person or government agency to provide such information relating to the person’s or agency’s dealings with small businesses as the Commissioner reasonably requires for the purposes of any investigation by the Commissioner under this Act.
(2) Any such notice may specify the time within which the information is required to be provided.
(3) A requirement under this section to provide information relating to a person’s or agency’s dealings with small businesses may include a requirement to answer questions relating to those dealings.
(4) A government agency is not required to provide any information under this section if there is an overriding public interest against the disclosure of the information for the purposes of the Government Information (Public Access) Act 2009 or if access to the information would otherwise be denied under that Act.
17 Alternative dispute resolution required before proceedings can be taken
17 Alternative dispute resolution required before proceedings can be taken
17 Alternative dispute resolution required before proceedings can be taken
(1) If an application is made to the Commissioner for assistance in resolving a complaint or other dispute involving a small business and the Commissioner decides to deal with the complaint or dispute, the matter to which the complaint relates or the dispute may not be the subject of any proceedings before any court unless and until the Commissioner has certified in writing that alternative dispute resolution services provided by the Commissioner under this Act have failed to resolve the matter or dispute.
(2) The Commissioner is to certify that alternative dispute resolution services have failed to resolve a complaint or other dispute involving a small business if the Commissioner is satisfied that any one or more of the parties involved in the matter or dispute has refused to take part in, or has withdrawn from, alternative dispute resolution services provided by the Commissioner.
(3) This section does not apply to or in respect of the following:
(a) proceedings before a court for an order in the nature of an injunction,
(b) proceedings for an offence,
(c) proceedings in relation to an industrial matter before the Industrial Relations Commission,
(d) a retail tenancy dispute within the meaning of the Retail Leases Act 1994.
(4) This section does not operate to affect the validity of any decision made by a court.
18 Compulsory attendance at mediation and production of documents
18 Compulsory attendance at mediation and production of documents
18 Compulsory attendance at mediation and production of documents
(1) For the purposes of mediating a complaint or other dispute involving a small business, the Commissioner may, by notice in writing, require any person:
(a) to attend a meeting at a time and place specified in the notice, or
(b) to produce, at a time and place specified in the notice, to the Commissioner any document or thing described in the notice that is in the custody or under the control of the person and that, in the opinion of the Commissioner, would benefit the resolution of the complaint or dispute.
(2) A person must not:
(a) without reasonable excuse, refuse or fail to do anything required of the person by a notice under subsection (1), or
(b) in response to such a notice, make a statement that the person knows is false or misleading, or
(c) alter, suppress or destroy any document or thing that the person is required by such a notice to produce.
Maximum penalty on summary conviction: 100 penalty units in the case of a corporation or 50 penalty units in the case of an individual.
(3) A government agency is not required to produce any document under this section if there is an overriding public interest against the disclosure of the document for the purposes of the Government Information (Public Access) Act 2009 or if access to the document would otherwise be denied under that Act.
19 Commissioner may certify outcome of dispute resolution assistance
19 Commissioner may certify outcome of dispute resolution assistance
19 Commissioner may certify outcome of dispute resolution assistance
(1) The Commissioner may certify in writing the outcome of any application made to the Commissioner for assistance in resolving a complaint or other dispute involving a small business.
(2) Any such certificate is admissible as evidence in any civil proceedings of the outcome of the application.
(3) Any statement or admission made in connection with any alternative dispute resolution services provided by the Commissioner under this Act is not admissible in any legal proceedings.
(4) A reference in this section:
(a) to a complaint or other dispute involving a small business does not include a reference to a retail tenancy dispute within the meaning of the Retail Leases Act 1994, or
(b) to the outcome of an application for assistance in resolving a complaint or other dispute involving a small business is a reference to whether or not the application was reso
This is an opening excerpt, not the complete document.
Small Business Commissioner Act 2013 (New South Wales) | Zoe