This Act creates a Small Business Commissioner in Queensland to provide a single contact point, information, advocacy and alternative dispute resolution (mediation) services for small-business disputes and to share information with other agencies (ss 5–7, 6, 37). It authorises regulations setting fees and procedures (s 41). Parties must first seek informal help and pay any prescribed fee before applying for mediation, and while mediation is on foot the dispute is generally kept out of court (ss 21–23, 22, 34). The Minister appoints and may direct the commissioner; the chief executive reviews some dismissals (ss 9, 17, 36).
This Act establishes a dedicated Small Business Commissioner (the commissioner) in Queensland with functions and powers focused on information, advocacy and mediated dispute resolution for small businesses (s 5; s 6). The statutory object is twofold: to enhance the operating environment for small businesses in Queensland, and to reduce the time and costs associated with resolving disputes involving small businesses (s 3). The Act creates an office outside the standard public service employment regime (s 11(3)), but allows a public service officer who becomes commissioner to retain accrued public service rights (s 12).
Mechanically, the Act:
Creates the office and sets out primary functions: a central contact point, advisory services, informal dispute assistance, alternative dispute resolution and mediation administration, advocacy to government and other entities, interstate cooperation, performance of functions under other Acts, and minister-directed activities (s 5; s 6).
Confers necessary powers to perform those functions and expressly permits delegation to suitably qualified public service officers (s 7; s 8).
Provides a specific appointment and tenure framework: appointment by Governor in Council on ministerial recommendation, maximum five-year terms with a single reappointment permitted, remuneration and conditions set by Governor in Council and outside the Public Service Act (s 9-11).
Enables ministerial control and oversight: written directions that are binding and must be disclosed in the annual report (s 17); statements of expectations the commissioner must have regard to (s 18); routine reporting and annual reporting duties (s 19-20).
Establishes a mediation regime for “small business disputes” with entry conditions (attempt at informal assistance, jurisdictional tests, regulatory requirements, mutual agreement) and interface rules with other statutes such as the Retail Shop Leases Act 1994 (s 21-22; notes referencing Retail Shop Leases Act ss 96-97).
Current sections
Direct links to the current provisions in Small Business Commissioner Act 2022.
52
pt.1
Preliminary
Preliminary
sec.1
Short title
sec.1 Short title
This Act may be cited as the Small Business Commissioner Act 2022 .
sec.2
Commencement
sec.2 Commencement
This Act commences on 3 May 2022.
sec.3
Main object
sec.3 Main object
The main object of this Act is to establish the office of small business commissioner to—
enhance the operating environment for small businesses in Queensland; and
reduce the time and costs associated with resolving disputes involving small businesses.
(a) enhance the operating environment for small businesses in Queensland; and
(b) reduce the time and costs associated with resolving disputes involving small businesses.
sec.4
Interpretation
sec.4 Interpretation
The dictionary in schedule 1 defines particular words used in this Act.
pt.2
Small business commissioner
Small business commissioner
pt.2-div.1
Establishment
Establishment
sec.5
Small business commissioner
sec.5 Small business commissioner
There is to be a small business commissioner.
sec.6
Functions
sec.6 Functions
The main functions of the commissioner are—
to provide a central point of contact in relation to matters affecting small businesses; and
to provide information and advisory services to the public about matters relating to small businesses; and
to assist parties in reaching an informal resolution for small business disputes, including by facilitating the exchange of information between the parties; and
to provide alternative dispute resolution services and administer a mediation process for small business disputes; and
to advocate on behalf of small businesses to—
the State, the Commonwealth, another State or a local government; or
any other entity involved in administering a matter relevant to small businesses; and
to work collaboratively with the equivalent of the commissioner in other States or the Commonwealth to enhance conditions for small businesses; and
to perform functions conferred on the commissioner under another Act; and
to carry out other activities to further the objects of this Act, as directed by the Minister.
(a) to provide a central point of contact in relation to matters affecting small businesses; and
(b) to provide information and advisory services to the public about matters relating to small businesses; and
(c) to assist parties in reaching an informal resolution for small business disputes, including by facilitating the exchange of information between the parties; and
(d) to provide alternative dispute resolution services and administer a mediation process for small business disputes; and
(e) to advocate on behalf of small businesses to— (i) the State, the Commonwealth, another State or a local government; or (ii) any other entity involved in administering a matter relevant to small businesses; and
(i) the State, the Commonwealth, another State or a local government; or
(ii) any other entity involved in administering a matter relevant to small businesses; and
(f) to work collaboratively with the equivalent of the commissioner in other States or the Commonwealth to enhance conditions for small businesses; and
(g) to perform functions conferred on the commissioner under another Act; and
(h) to carry out other activities to further the objects of this Act, as directed by the Minister.
(i) the State, the Commonwealth, another State or a local government; or
(ii) any other entity involved in administering a matter relevant to small businesses; and
sec.7
Powers
sec.7 Powers
The commissioner has all the powers necessary for performing the commissioner’s functions under this Act or conferred on the commissioner under another Act.
sec.8
Delegation
sec.8 Delegation
The commissioner may delegate a power of the commissioner under this Act or another Act to a public service officer who is appropriately qualified to exercise the power delegated.
pt.2-div.2
Appointment
Appointment
sec.9
Appointment
sec.9 Appointment
The commissioner is appointed by the Governor in Council on the recommendation of the Minister.
The Minister may recommend a person only if the person is appropriately qualified to perform the functions of the commissioner.
(sec.9-ssec.1) The commissioner is appointed by the Governor in Council on the recommendation of the Minister.
(sec.9-ssec.2) The Minister may recommend a person only if the person is appropriately qualified to perform the functions of the commissioner.
sec.10
Term of appointment
sec.10 Term of appointment
The commissioner holds office for the term, of not more than 5 years, stated in the commissioner’s instrument of appointment.
A person may be re-appointed as commissioner only once for a further term of not more than 5 years.
(sec.10-ssec.1) The commissioner holds office for the term, of not more than 5 years, stated in the commissioner’s instrument of appointment.
(sec.10-ssec.2) A person may be re-appointed as commissioner only once for a further term of not more than 5 years.
sec.11
Conditions of appointment
sec.11 Conditions of appointment
The commissioner is to be paid the remuneration and allowances decided by the Governor in Council.
A person holds office as the commissioner on the conditions decided by the Governor in Council.
The commissioner is appointed under this Act and not the Public Service Act 2008 .
(sec.11-ssec.1) The commissioner is to be paid the remuneration and allowances decided by the Governor in Council.
(sec.11-ssec.2) A person holds office as the commissioner on the conditions decided by the Governor in Council.
(sec.11-ssec.3) The commissioner is appointed under this Act and not the Public Service Act 2008 .
sec.12
Preservation of rights of commissioner
sec.12 Preservation of rights of commissioner
This section applies if a person who is a public service officer is appointed as commissioner.
The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer.
At the end of the person’s term of office or resignation as commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.
(sec.12-ssec.1) This section applies if a person who is a public service officer is appointed as commissioner.
(sec.12-ssec.2) The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer.
(sec.12-ssec.3) At the end of the person’s term of office or resignation as commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.
sec.13
Vacancy in office of commissioner
sec.13 Vacancy in office of commissioner
The office of commissioner becomes vacant if the commissioner—
resigns under section 14 ; or
is removed by the Governor in Council under section 15 .
(a) resigns under section 14 ; or
(b) is removed by the Governor in Council under section 15 .
sec.14
Resignation
sec.14 Resignation
The commissioner may resign the commissioner’s office by giving the Minister a signed letter of resignation.
The resignation takes effect when the Minister receives the resignation or, if a later day is stated in the letter, the later day.
(sec.14-ssec.1) The commissioner may resign the commissioner’s office by giving the Minister a signed letter of resignation.
(sec.14-ssec.2) The resignation takes effect when the Minister receives the resignation or, if a later day is stated in the letter, the later day.
sec.15
Removal
sec.15 Removal
The Governor in Council may remove a person from office as the commissioner if the person—
is guilty of misconduct; or
is incapable of performing the functions of the commissioner; or
has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
This section does not otherwise limit the Acts Interpretation Act 1954 , section 25 .
(sec.15-ssec.1) The Governor in Council may remove a person from office as the commissioner if the person— is guilty of misconduct; or is incapable of performing the functions of the commissioner; or has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
(sec.15-ssec.2) This section does not otherwise limit the Acts Interpretation Act 1954 , section 25 .
(a) is guilty of misconduct; or
(b) is incapable of performing the functions of the commissioner; or
(c) has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
sec.16
Acting commissioner
sec.16 Acting commissioner
The Minister may appoint a person to act in the office of commissioner during—
a vacancy in the office of commissioner; or
a period when the commissioner is absent from duty, or can not, for another reason, perform the functions of the office.
(a) a vacancy in the office of commissioner; or
(b) a period when the commissioner is absent from duty, or can not, for another reason, perform the functions of the office.
pt.2-div.3
Role of Minister and reporting requirements
Role of Minister and reporting requirements
sec.17
Ministerial direction
sec.17 Ministerial direction
The Minister may give the commissioner a written direction about a matter relevant to the performance of the commissioner’s functions.
The commissioner must comply with a direction given under subsection (1) .
The commissioner must include details, in the commissioner’s annual report prepared under section 20 , of—
any direction given by the Minister under subsection (1) during the financial year to which the report relates; and
the actions taken by the commissioner as a result of the direction.
(sec.17-ssec.1) The Minister may give the commissioner a written direction about a matter relevant to the performance of the commissioner’s functions.
(sec.17-ssec.2) The commissioner must comply with a direction given under subsection (1) .
(sec.17-ssec.3) The commissioner must include details, in the commissioner’s annual report prepared under section 20 , of— any direction given by the Minister under subsection (1) during the financial year to which the report relates; and the actions taken by the commissioner as a result of the direction.
(a) any direction given by the Minister under subsection (1) during the financial year to which the report relates; and
(b) the actions taken by the commissioner as a result of the direction.
sec.18
Statement of expectations
sec.18 Statement of expectations
The Minister may give the commissioner a written statement (a statement of expectations ) about the Minister’s expectations for the performance of the commissioner’s functions.
Without limiting subsection (1) , the statement of expectations may—
state a particular period for which the statement applies; and
provide for the nature and scope of the commissioner’s activities for a particular period.
The commissioner must have regard to the statement of expectations in performing the commissioner’s functions.
(sec.18-ssec.1) The Minister may give the commissioner a written statement (a statement of expectations ) about the Minister’s expectations for the performance of the commissioner’s functions.
(sec.18-ssec.2) Without limiting subsection (1) , the statement of expectations may— state a particular period for which the statement applies; and provide for the nature and scope of the commissioner’s activities for a particular period.
(sec.18-ssec.3) The commissioner must have regard to the statement of expectations in performing the commissioner’s functions.
(a) state a particular period for which the statement applies; and
(b) provide for the nature and scope of the commissioner’s activities for a particular period.
sec.19
Reporting to Minister
sec.19 Reporting to Minister
The commissioner must—
keep the Minister reasonably informed about the functions performed and activities carried out by the commissioner; and
comply with a reasonable request by the Minister to give the Minister stated information at a stated time about the functions performed or activities carried out by the commissioner.
(a) keep the Minister reasonably informed about the functions performed and activities carried out by the commissioner; and
(b) comply with a reasonable request by the Minister to give the Minister stated information at a stated time about the functions performed or activities carried out by the commissioner.
sec.20
Annual report
sec.20 Annual report
The commissioner must prepare and give to the Minister, within 3 months after the end of each financial year, an annual report on the functions performed, and activities carried out, by the commissioner during the financial year.
The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving it.
(sec.20-ssec.1) The commissioner must prepare and give to the Minister, within 3 months after the end of each financial year, an annual report on the functions performed, and activities carried out, by the commissioner during the financial year.
(sec.20-ssec.2) The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving it.
pt.3
Mediation
Mediation
sec.21
Who may apply
sec.21 Who may apply
The parties to a small business dispute may apply for mediation of the dispute under this part only if—
the parties to the dispute have attempted to resolve the dispute by seeking informal assistance from the commissioner; and
the dispute is within a mediator’s jurisdiction; and
A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 .
This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act.
any requirements prescribed by regulation for this section have been complied with by the parties to the dispute; and
all parties to the dispute agree to mediate the dispute under this part.
Also, an application may be made by the parties to a small business franchise dispute only if the Australian Small Business and Family Enterprise Ombudsman established under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (Cwlth) , section 12 has referred the dispute to the commissioner.
(sec.21-ssec.1) The parties to a small business dispute may apply for mediation of the dispute under this part only if— the parties to the dispute have attempted to resolve the dispute by seeking informal assistance from the commissioner; and the dispute is within a mediator’s jurisdiction; and A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 . This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act. any requirements prescribed by regulation for this section have been complied with by the parties to the dispute; and all parties to the dispute agree to mediate the dispute under this part.
(sec.21-ssec.2) Also, an application may be made by the parties to a small business franchise dispute only if the Australian Small Business and Family Enterprise Ombudsman established under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (Cwlth) , section 12 has referred the dispute to the commissioner.
(a) the parties to the dispute have attempted to resolve the dispute by seeking informal assistance from the commissioner; and
(b) the dispute is within a mediator’s jurisdiction; and Notes— 1 A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 . 2 This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act.
1 A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 .
2 This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act.
(c) any requirements prescribed by regulation for this section have been complied with by the parties to the dispute; and
(d) all parties to the dispute agree to mediate the dispute under this part.
1 A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 .
2 This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act.
sec.22
Requirements for application
sec.22 Requirements for application
An application for mediation must be—
in the approved form; and
signed by each party to the dispute; and
accompanied by the fee prescribed by regulation.
(a) in the approved form; and
(b) signed by each party to the dispute; and
(c) accompanied by the fee prescribed by regulation.
sec.23
Commissioner to act on application
sec.23 Commissioner to act on application
As soon as practicable after the application is made, the commissioner must either accept or dismiss the application.
The commissioner may dismiss the application if the commissioner considers the application—
does not relate to a small business dispute; or
is frivolous or vexatious; or
has not been made in good faith; or
has otherwise not been properly made.
For deciding whether or not a dispute is a small business dispute under subsection (2) (a) , the commissioner may, for example, have regard to the following—
the number of employees each party employs;
the annual turnover of each party to the dispute.
If the commissioner decides to dismiss the application, the commissioner must give each party an information notice for the decision.
If the commissioner accepts the application, the commissioner must—
nominate a mediator to mediate the small business dispute; and
give written notice to the parties to the dispute of—
the mediator nominated to mediate the dispute; and
the time, date and place of the mediation conference to be conducted by the mediator.
The date of the mediation conference must be at least 7 days after the notice is given.
In this section—
information notice , for a decision to dismiss an application for mediation, means a written notice stating—
the decision; and
the reasons for the decision; and
that the party to whom the notice is given may, within 28 days, have the decision reviewed under section 36 ; and
how the party may apply for the review.
(sec.23-ssec.1) As soon as practicable after the application is made, the commissioner must either accept or dismiss the application.
(sec.23-ssec.2) The commissioner may dismiss the application if the commissioner considers the application— does not relate to a small business dispute; or is frivolous or vexatious; or has not been made in good faith; or has otherwise not been properly made.
(sec.23-ssec.3) For deciding whether or not a dispute is a small business dispute under subsection (2) (a) , the commissioner may, for example, have regard to the following— the number of employees each party employs; the annual turnover of each party to the dispute.
(sec.23-ssec.4) If the commissioner decides to dismiss the application, the commissioner must give each party an information notice for the decision.
(sec.23-ssec.5) If the commissioner accepts the application, the commissioner must— nominate a mediator to mediate the small business dispute; and give written notice to the parties to the dispute of— the mediator nominated to mediate the dispute; and the time, date and place of the mediation conference to be conducted by the mediator.
(sec.23-ssec.6) The date of the mediation conference must be at least 7 days after the notice is given.
(sec.23-ssec.7) In this section— information notice , for a decision to dismiss an application for mediation, means a written notice stating— the decision; and the reasons for the decision; and that the party to whom the notice is given may, within 28 days, have the decision reviewed under section 36 ; and how the party may apply for the review.
(a) does not relate to a small business dispute; or
(b) is frivolous or vexatious; or
(c) has not been made in good faith; or
(d) has otherwise not been properly made.
(a) the number of employees each party employs;
(b) the annual turnover of each party to the dispute.
(a) nominate a mediator to mediate the small business dispute; and
(b) give written notice to the parties to the dispute of— (i) the mediator nominated to mediate the dispute; and (ii) the time, date and place of the mediation conference to be conducted by the mediator.
(i) the mediator nominated to mediate the dispute; and
(ii) the time, date and place of the mediation conference to be conducted by the mediator.
(i) the mediator nominated to mediate the dispute; and
(ii) the time, date and place of the mediation conference to be conducted by the mediator.
(a) the decision; and
(b) the reasons for the decision; and
(c) that the party to whom the notice is given may, within 28 days, have the decision reviewed under section 36 ; and
(d) how the party may apply for the review.
sec.24
Person may apply to be joined as a party
sec.24 Person may apply to be joined as a party
A person may apply to the commissioner to be joined as a party to a mediation of a small business dispute under this part.
The application must be—
in the approved form; and
accompanied by the fee prescribed by regulation.
The commissioner may join the person as a party to the mediation only with the consent of each of the other parties to the dispute.
(sec.24-ssec.1) A person may apply to the commissioner to be joined as a party to a mediation of a small business dispute under this part.
(sec.24-ssec.2) The application must be— in the approved form; and accompanied by the fee prescribed by regulation.
(sec.24-ssec.3) The commissioner may join the person as a party to the mediation only with the consent of each of the other parties to the dispute.
(a) in the approved form; and
(b) accompanied by the fee prescribed by regulation.
sec.25
Limited right of representation
sec.25 Limited right of representation
At the mediation conference, each party to the small business dispute—
must conduct the party’s own case; and
may be represented by an agent approved by the mediator only if—
the party is a corporation; or
the mediator is satisfied an agent should be permitted to represent the party.
(a) must conduct the party’s own case; and
(b) may be represented by an agent approved by the mediator only if— (i) the party is a corporation; or (ii) the mediator is satisfied an agent should be permitted to represent the party.
(i) the party is a corporation; or
(ii) the mediator is satisfied an agent should be permitted to represent the party.
(i) the party is a corporation; or
(ii) the mediator is satisfied an agent should be permitted to represent the party.
sec.26
Conference to be held in private
sec.26 Conference to be held in private
The mediation conference is not open to the public.
sec.27
Parties attendance at conference not compellable
sec.27 Parties attendance at conference not compellable
A party to the small business dispute can not be compelled to attend the mediation conference.
sec.28
Mediator may allow interested person to take part in mediation conference
sec.28 Mediator may allow interested person to take part in mediation conference
The mediator may allow a person to take part in the mediation conference if—
the mediator is satisfied the person has an interest in the resolution of the small business dispute; and
each of the other parties to the dispute consents.
However, the person does not become a party to the dispute.
(sec.28-ssec.1) The mediator may allow a person to take part in the mediation conference if— the mediator is satisfied the person has an interest in the resolution of the small business dispute; and each of the other parties to the dispute consents.
(sec.28-ssec.2) However, the person does not become a party to the dispute.
(a) the mediator is satisfied the person has an interest in the resolution of the small business dispute; and
(b) each of the other parties to the dispute consents.
sec.29
Mediation agreements
sec.29 Mediation agreements
This section applies if the parties to the small business dispute reach an agreement about the dispute.
The agreement (the mediation agreement ) must be in writing and signed by the parties.
(sec.29-ssec.1) This section applies if the parties to the small business dispute reach an agreement about the dispute.
(sec.29-ssec.2) The agreement (the mediation agreement ) must be in writing and signed by the parties.
sec.30
Notifying outcome of mediation
sec.30 Notifying outcome of mediation
The mediator must, as soon as practicable after the mediation ends—
give each party to the dispute—
if the parties have entered into a mediation agreement under section 29 —a copy of the signed mediation agreement; or
otherwise—a notice about the outcome of the mediation; and
notify the commissioner of the outcome of the mediation.
(a) give each party to the dispute— (i) if the parties have entered into a mediation agreement under section 29 —a copy of the signed mediation agreement; or (ii) otherwise—a notice about the outcome of the mediation; and
(i) if the parties have entered into a mediation agreement under section 29 —a copy of the signed mediation agreement; or
(ii) otherwise—a notice about the outcome of the mediation; and
(b) notify the commissioner of the outcome of the mediation.
(i) if the parties have entered into a mediation agreement under section 29 —a copy of the signed mediation agreement; or
(ii) otherwise—a notice about the outcome of the mediation; and
sec.31
No official record of mediation conference
sec.31 No official record of mediation conference
A person must not make an official record of anything said at a mediation conference.
Maximum penalty—40 penalty units.
However, the mediator may make notes of the mediation conference the mediator considers appropriate.
(sec.31-ssec.1) A person must not make an official record of anything said at a mediation conference. Maximum penalty—40 penalty units.
(sec.31-ssec.2) However, the mediator may make notes of the mediation conference the mediator considers appropriate.
sec.32
Admissions made during mediation conference
sec.32 Admissions made during mediation conference
Evidence of anything said in a mediation conference for a small business dispute is not admissible in a proceeding before a court or tribunal.
sec.33
Withdrawal of applications
sec.33 Withdrawal of applications
A party to a small business dispute may, by written notice given to the commissioner, withdraw the application for mediation.
The notice may be given before or after a mediator has started mediating the dispute.
The commissioner must, as soon as practicable after receiving the notice, advise the following persons of the withdrawal—
all other parties to the dispute;
if the commissioner has nominated a mediator for the dispute—the mediator.
(sec.33-ssec.1) A party to a small business dispute may, by written notice given to the commissioner, withdraw the application for mediation.
(sec.33-ssec.2) The notice may be given before or after a mediator has started mediating the dispute.
(sec.33-ssec.3) The commissioner must, as soon as practicable after receiving the notice, advise the following persons of the withdrawal— all other parties to the dispute; if the commissioner has nominated a mediator for the dispute—the mediator.
(a) all other parties to the dispute;
(b) if the commissioner has nominated a mediator for the dispute—the mediator.
sec.34
Exclusion of other jurisdictions
sec.34 Exclusion of other jurisdictions
On and from the making of an application for mediation under section 22 , the dispute must not be referred to arbitration or heard by a court or tribunal.
Subsection (1) does not apply if—
the application is withdrawn under section 33 ; or
a proceeding about the matter in dispute was started in a court or tribunal before the application was made; or
an application for an order in the nature of an injunction about the matter in dispute is made to a court; or
a mediator refuses to mediate the dispute because the mediator is of the opinion the dispute is not within the jurisdiction of the mediator; or
the mediator has given a notice about the outcome of the mediation under section 30 (a) (ii) .
For subsection (2) (b) , a proceeding relating to a lease is taken to have started before a court if the lessor has—
served on the lessee a notice under the Property Law Act 1974 , section 124 ; or
given to the lessee a notice under the Property Law Act 1974 , section 131 .
(sec.34-ssec.1) On and from the making of an application for mediation under section 22 , the dispute must not be referred to arbitration or heard by a court or tribunal.
(sec.34-ssec.2) Subsection (1) does not apply if— the application is withdrawn under section 33 ; or a proceeding about the matter in dispute was started in a court or tribunal before the application was made; or an application for an order in the nature of an injunction about the matter in dispute is made to a court; or a mediator refuses to mediate the dispute because the mediator is of the opinion the dispute is not within the jurisdiction of the mediator; or the mediator has given a notice about the outcome of the mediation under section 30 (a) (ii) .
(sec.34-ssec.3) For subsection (2) (b) , a proceeding relating to a lease is taken to have started before a court if the lessor has— served on the lessee a notice under the Property Law Act 1974 , section 124 ; or given to the lessee a notice under the Property Law Act 1974 , section 131 .
(a) the application is withdrawn under section 33 ; or
(b) a proceeding about the matter in dispute was started in a court or tribunal before the application was made; or
(c) an application for an order in the nature of an injunction about the matter in dispute is made to a court; or
(d) a mediator refuses to mediate the dispute because the mediator is of the opinion the dispute is not within the jurisdiction of the mediator; or
(e) the mediator has given a notice about the outcome of the mediation under section 30 (a) (ii) .
(a) served on the lessee a notice under the Property Law Act 1974 , section 124 ; or
(b) given to the lessee a notice under the Property Law Act 1974 , section 131 .
sec.35
Enforcing mediation agreements
sec.35 Enforcing mediation agreements
A party to a small business dispute who enters into a mediation agreement may apply to a court with jurisdiction to hear the dispute for an order enforcing the agreement.
The court may make any order it considers appropriate in the circumstances.
(sec.35-ssec.1) A party to a small business dispute who enters into a mediation agreement may apply to a court with jurisdiction to hear the dispute for an order enforcing the agreement.
(sec.35-ssec.2) The court may make any order it considers appropriate in the circumstances.
pt.4
Miscellaneous
Miscellaneous
sec.36
Review of decision to dismiss application for mediation
sec.36 Review of decision to dismiss application for mediation
This section applies if a party to a small business dispute is given an information notice for a decision by the commissioner to dismiss an application for mediation.
The party may apply to the chief executive for a review of the decision.
The application must—
be made within 28 days after the information notice was given to the party or, if the chief executive extends the period within which the application must be made, within the extended period; and
be in writing; and
state the grounds on which the review is sought.
After reviewing the decision, the chief executive must, within 28 days after receiving the application—
confirm the commissioner’s decision; or
substitute another decision for the commissioner’s decision.
The chief executive must give a statement of reasons for the chief executive’s decision under subsection (4) to—
each party to the dispute; and
the commissioner.
(sec.36-ssec.1) This section applies if a party to a small business dispute is given an information notice for a decision by the commissioner to dismiss an application for mediation.
(sec.36-ssec.2) The party may apply to the chief executive for a review of the decision.
(sec.36-ssec.3) The application must— be made within 28 days after the information notice was given to the party or, if the chief executive extends the period within which the application must be made, within the extended period; and be in writing; and state the grounds on which the review is sought.
(sec.36-ssec.4) After reviewing the decision, the chief executive must, within 28 days after receiving the application— confirm the commissioner’s decision; or substitute another decision for the commissioner’s decision.
(sec.36-ssec.5) The chief executive must give a statement of reasons for the chief executive’s decision under subsection (4) to— each party to the dispute; and the commissioner.
(a) be made within 28 days after the information notice was given to the party or, if the chief executive extends the period within which the application must be made, within the extended period; and
(b) be in writing; and
(c) state the grounds on which the review is sought.
(a) confirm the commissioner’s decision; or
(b) substitute another decision for the commissioner’s decision.
(a) each party to the dispute; and
(b) the commissioner.
sec.37
Exchange of information
sec.37 Exchange of information
The commissioner may enter into an arrangement (an information-sharing arrangement ) with a relevant agency for the purposes of sharing or exchanging information—
held by the commissioner or relevant agency; or
to which the commissioner or relevant agency has access.
An information-sharing arrangement may relate only to information that assists—
the commissioner in performing the commissioner’s functions under this Act; or
the relevant agency in performing its functions.
Under an information-sharing arrangement, the commissioner and the relevant agency are, despite another Act or law, authorised to—
ask for and receive information held by the other party to the arrangement or to which the other party has access; and
disclose information to the other party.
In this section—
relevant agency means—
the chief executive of a department; or
a local government; or
a person who is the equivalent of the commissioner in another State or the Commonwealth; or
an agency of the Commonwealth, or another State, prescribed by regulation; or
another entity involved in administering matters relevant to small businesses prescribed by regulation.
(sec.37-ssec.1) The commissioner may enter into an arrangement (an information-sharing arrangement ) with a relevant agency for the purposes of sharing or exchanging information— held by the commissioner or relevant agency; or to which the commissioner or relevant agency has access.
(sec.37-ssec.2) An information-sharing arrangement may relate only to information that assists— the commissioner in performing the commissioner’s functions under this Act; or the relevant agency in performing its functions.
(sec.37-ssec.3) Under an information-sharing arrangement, the commissioner and the relevant agency are, despite another Act or law, authorised to— ask for and receive information held by the other party to the arrangement or to which the other party has access; and disclose information to the other party.
(sec.37-ssec.4) In this section— relevant agency means— the chief executive of a department; or a local government; or a person who is the equivalent of the commissioner in another State or the Commonwealth; or an agency of the Commonwealth, or another State, prescribed by regulation; or another entity involved in administering matters relevant to small businesses prescribed by regulation.
(a) held by the commissioner or relevant agency; or
(b) to which the commissioner or relevant agency has access.
(a) the commissioner in performing the commissioner’s functions under this Act; or
(b) the relevant agency in performing its functions.
(a) ask for and receive information held by the other party to the arrangement or to which the other party has access; and
(b) disclose information to the other party.
(a) the chief executive of a department; or
(b) a local government; or
(c) a person who is the equivalent of the commissioner in another State or the Commonwealth; or
(d) an agency of the Commonwealth, or another State, prescribed by regulation; or
(e) another entity involved in administering matters relevant to small businesses prescribed by regulation.
sec.38
Confidentiality
sec.38 Confidentiality
Subsection (2) applies to a person who obtains confidential information in performing a function under this Act.
The person must not, whether directly or indirectly, disclose the confidential information unless the disclosure is—
in the performance of a function under this Act; or
with the consent of the person to whom the information relates; or
otherwise required or permitted by law.
Maximum penalty—50 penalty units.
A party to a small business dispute or another person who obtains confidential information under or as a result of the operation of this Act must not disclose the information unless the disclosure is—
to a professional advisor or financier who agrees to keep the information confidential; or
with the consent of the person to whom the information relates; or
otherwise required or permitted by law.
Maximum penalty—20 penalty units.
This section does not apply to a mediator.
For the obligation of mediators to maintain secrecy, see the Retail Shop Leases Act 1994 , section 113 .
In this section—
confidential information —
means any information that—
could identify a person; or
is about a person’s current financial position or financial background; or
would be likely to damage the commercial activities of a person to whom the information relates; but
does not include—
information that is publicly available; or
statistical or other information that could not reasonably be expected to result in the identification of the individual to whom it relates.
(sec.38-ssec.1) Subsection (2) applies to a person who obtains confidential information in performing a function under this Act.
(sec.38-ssec.2) The person must not, whether directly or indirectly, disclose the confidential information unless the disclosure is— in the performance of a function under this Act; or with the consent of the person to whom the information relates; or otherwise required or permitted by law. Maximum penalty—50 penalty units.
(sec.38-ssec.3) A party to a small business dispute or another person who obtains confidential information under or as a result of the operation of this Act must not disclose the information unless the disclosure is— to a professional advisor or financier who agrees to keep the information confidential; or with the consent of the person to whom the information relates; or otherwise required or permitted by law. Maximum penalty—20 penalty units.
(sec.38-ssec.4) This section does not apply to a mediator. For the obligation of mediators to maintain secrecy, see the Retail Shop Leases Act 1994 , section 113 .
(sec.38-ssec.5) In this section— confidential information — means any information that— could identify a person; or is about a person’s current financial position or financial background; or would be likely to damage the commercial activities of a person to whom the information relates; but does not include— information that is publicly available; or statistical or other information that could not reasonably be expected to result in the identification of the individual to whom it relates.
(a) in the performance of a function under this Act; or
(b) with the consent of the person to whom the information relates; or
(c) otherwise required or permitted by law.
(a) to a professional advisor or financier who agrees to keep the information confidential; or
(b) with the consent of the person to whom the information relates; or
(c) otherwise required or permitted by law.
(a) means any information that— (i) could identify a person; or (ii) is about a person’s current financial position or financial background; or (iii) would be likely to damage the commercial activities of a person to whom the information relates; but
(i) could identify a person; or
(ii) is about a person’s current financial position or financial background; or
(iii) would be likely to damage the commercial activities of a person to whom the information relates; but
(b) does not include— (i) information that is publicly available; or (ii) statistical or other information that could not reasonably be expected to result in the identification of the individual to whom it relates.
(i) information that is publicly available; or
(ii) statistical or other information that could not reasonably be expected to result in the identification of the individual to whom it relates.
(i) could identify a person; or
(ii) is about a person’s current financial position or financial background; or
(iii) would be likely to damage the commercial activities of a person to whom the information relates; but
(i) information that is publicly available; or
(ii) statistical or other information that could not reasonably be expected to result in the identification of the individual to whom it relates.
sec.39
Review of Act
sec.39 Review of Act
The Minister must review the effectiveness of this Act as soon as practicable after the day that is 5 years after the commencement.
As soon as practicable after finishing the review, the Minister must table a report about its outcome in the Legislative Assembly.
(sec.39-ssec.1) The Minister must review the effectiveness of this Act as soon as practicable after the day that is 5 years after the commencement.
(sec.39-ssec.2) As soon as practicable after finishing the review, the Minister must table a report about its outcome in the Legislative Assembly.
sec.40
Commissioner may approve forms
sec.40 Commissioner may approve forms
The commissioner may approve forms for use under this Act.
sec.41
Regulation-making power
sec.41 Regulation-making power
The Governor in Council may make regulations under this Act.
A regulation may be made about—
the fees payable under this Act; and
the obligations of parties to a small business dispute in relation to the mediation process; and
the practices and procedures of the mediation process.
A regulation may provide for a maximum penalty of not more than 20 penalty units for a contravention of the regulation.
(sec.41-ssec.1) The Governor in Council may make regulations under this Act.
(sec.41-ssec.2) A regulation may be made about— the fees payable under this Act; and the obligations of parties to a small business dispute in relation to the mediation process; and the practices and procedures of the mediation process.
(sec.41-ssec.3) A regulation may provide for a maximum penalty of not more than 20 penalty units for a contravention of the regulation.
(a) the fees payable under this Act; and
(b) the obligations of parties to a small business dispute in relation to the mediation process; and
(c) the practices and procedures of the mediation process.
pt.5
Transitional provisions
Transitional provisions
sec.42
Continuation of appointment of existing small business commissioner
sec.42 Continuation of appointment of existing small business commissioner
This section applies if, on the commencement, a person has not been appointed as commissioner under part 2, division 2.
On the commencement, the person appointed as small business commissioner under the repealed COVID-19 Emergency Response Act 2020 , part 6 immediately before the commencement is taken to have been appointed as commissioner under part 2, division 2.
Subject to subsections (4) and (5), the person is to be paid the remuneration and allowances, and is appointed on the same conditions, that applied in relation to the person’s appointment immediately before the repeal of the repealed COVID-19 Emergency Response Act 2020 , part 6.
The person’s appointment as commissioner under this section ends at the start of the term of the commissioner first appointed under this Act after the commencement.
Also, the person’s appointment as commissioner under this section, and the term the person has held office since the person’s appointment under the repealed COVID-19 Emergency Response Act 2020 , part 6 is to be considered for applying section 10(2).
(sec.42-ssec.1) This section applies if, on the commencement, a person has not been appointed as commissioner under part 2, division 2.
(sec.42-ssec.2) On the commencement, the person appointed as small business commissioner under the repealed COVID-19 Emergency Response Act 2020 , part 6 immediately before the commencement is taken to have been appointed as commissioner under part 2, division 2.
(sec.42-ssec.3) Subject to subsections (4) and (5), the person is to be paid the remuneration and allowances, and is appointed on the same conditions, that applied in relation to the person’s appointment immediately before the repeal of the repealed COVID-19 Emergency Response Act 2020 , part 6.
(sec.42-ssec.4) The person’s appointment as commissioner under this section ends at the start of the term of the commissioner first appointed under this Act after the commencement.
(sec.42-ssec.5) Also, the person’s appointment as commissioner under this section, and the term the person has held office since the person’s appointment under the repealed COVID-19 Emergency Response Act 2020 , part 6 is to be considered for applying section 10(2).
sec.43
Relationship with the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
sec.43 Relationship with the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
If a small business lease dispute is an affected lease dispute under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , that regulation applies in relation to the dispute, and not this Act.
sec.44
Particular proceedings under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
sec.44 Particular proceedings under the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020
This section applies in relation to a small business tenancy dispute other than an affected lease dispute, if—
before the commencement—a party to the dispute had given a dispute notice to the pre-commencement small business commissioner; and
on the commencement—
the parties have not entered into a settlement agreement for the dispute; or
for a proceeding in QCAT relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by QCAT; or
for a proceeding in a court relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by the court.
The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 continues to apply in relation to the dispute.
In this section—
affected lease dispute see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , schedule 1.
dispute notice see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , section 26(1).
pre-commencement small business commissioner means the commissioner appointed under the repealed COVID-19 Emergency Response Act 2020 , part 6 immediately before the commencement.
settlement agreement see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , section 32.
small business tenancy dispute see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , schedule 1.
(sec.44-ssec.1) This section applies in relation to a small business tenancy dispute other than an affected lease dispute, if— before the commencement—a party to the dispute had given a dispute notice to the pre-commencement small business commissioner; and on the commencement— the parties have not entered into a settlement agreement for the dispute; or for a proceeding in QCAT relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by QCAT; or for a proceeding in a court relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by the court.
(sec.44-ssec.2) The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 continues to apply in relation to the dispute.
(sec.44-ssec.3) In this section— affected lease dispute see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , schedule 1. dispute notice see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , section 26(1). pre-commencement small business commissioner means the commissioner appointed under the repealed COVID-19 Emergency Response Act 2020 , part 6 immediately before the commencement. settlement agreement see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , section 32. small business tenancy dispute see the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 , schedule 1.
(a) before the commencement—a party to the dispute had given a dispute notice to the pre-commencement small business commissioner; and
(b) on the commencement— (i) the parties have not entered into a settlement agreement for the dispute; or (ii) for a proceeding in QCAT relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by QCAT; or (iii) for a proceeding in a court relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by the court.
(i) the parties have not entered into a settlement agreement for the dispute; or
(ii) for a proceeding in QCAT relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by QCAT; or
(iii) for a proceeding in a court relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by the court.
(i) the parties have not entered into a settlement agreement for the dispute; or
(ii) for a proceeding in QCAT relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by QCAT; or
(iii) for a proceeding in a court relating to the dispute—the proceeding has not been withdrawn, or dismissed, struck out or otherwise disposed of by the court.
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
pt.1 Preliminary
Preliminary
sec.1 Short title
sec.1 Short title
This Act may be cited as the Small Business Commissioner Act 2022 .
sec.2 Commencement
sec.2 Commencement
This Act commences on 3 May 2022.
sec.3 Main object
sec.3 Main object
The main object of this Act is to establish the office of small business commissioner to—
enhance the operating environment for small businesses in Queensland; and
reduce the time and costs associated with resolving disputes involving small businesses.
(a) enhance the operating environment for small businesses in Queensland; and
(b) reduce the time and costs associated with resolving disputes involving small businesses.
sec.4 Interpretation
sec.4 Interpretation
The dictionary in schedule 1 defines particular words used in this Act.
pt.2 Small business commissioner
Small business commissioner
pt.2-div.1 Establishment
Establishment
sec.5 Small business commissioner
sec.5 Small business commissioner
There is to be a small business commissioner.
sec.6 Functions
sec.6 Functions
The main functions of the commissioner are—
to provide a central point of contact in relation to matters affecting small businesses; and
to provide information and advisory services to the public about matters relating to small businesses; and
to assist parties in reaching an informal resolution for small business disputes, including by facilitating the exchange of information between the parties; and
to provide alternative dispute resolution services and administer a mediation process for small business disputes; and
to advocate on behalf of small businesses to—
the State, the Commonwealth, another State or a local government; or
any other entity involved in administering a matter relevant to small businesses; and
to work collaboratively with the equivalent of the commissioner in other States or the Commonwealth to enhance conditions for small businesses; and
to perform functions conferred on the commissioner under another Act; and
to carry out other activities to further the objects of this Act, as directed by the Minister.
(a) to provide a central point of contact in relation to matters affecting small businesses; and
(b) to provide information and advisory services to the public about matters relating to small businesses; and
Sets process and evidence rules for mediation: private conferences, limited representation, inadmissibility of mediation communications, prohibition on official records, confidentiality obligations and penalties for unlawful disclosure (s 25-33; s 31-32; s 38).
Permits information-sharing arrangements with relevant agencies and provides exceptions to other laws for authorised exchanges (s 37).
Contains review and oversight provisions (review of dismissal decisions by chief executive, five-year statutory review of the Act by the Minister), regulation-making power (fees, mediation obligations and practices) and transitional provisions preserving the COVID-era commissioner where applicable (s 36-41; s 39; s 42-44).
In short, the Act institutionalises a statutory ADR and advocacy role for small business issues, embedding ministerial oversight and confidentiality protections, and carving out a bespoke mediation pathway with exclusionary effects on recourse to courts and tribunals while a mediation application is active (s 34). The Act also anticipates cooperation with other jurisdictions and other statutory instruments to avoid duplication in areas already covered (s 21; s 43-44).
Main concepts
The Act defines and organises several core concepts that determine who can use the regime and what it accomplishes.
Small business commissioner and office
The statutory office-holder is the Small Business Commissioner (s 5). The commissioner holds wide functions defined in section 6 and has "all the powers necessary" to perform them (s 7). Delegation to appropriately qualified public service officers is authorised (s 8).
Objects and functions
The main objects (s 3) are improving the small business operating environment and reducing dispute resolution time and cost. The functions (s 6) operationalise those objects into discrete activities: information/advice, central contact point, informal dispute assistance and mediation, advocacy to government and other entities, interstate collaboration, performing statutory functions under other Acts, and carrying out minister-directed activities. The Act therefore mixes service delivery (advice, ADR) with systemic roles (advocacy, inter-jurisdictional work).
Mediation regime and jurisdiction
The Act provides a statutorily governed mediation pathway for "small business disputes" (Pt 3). Access to mediation requires,
that parties first attempt informal assistance from the commissioner;
that the dispute fall within a mediator's jurisdiction;
compliance with any regulatory preconditions; and
agreement by all parties to mediate (s 21).
The Act cross-references the Retail Shop Leases Act 1994 to clarify mediation jurisdiction and expressly excludes retail tenancy disputes governed by that Act (s 21).
Procedural concepts for mediation
Applications must be in approved form, signed by all parties and accompanied by prescribed fees (s 22). The commissioner accepts or dismisses applications "as soon as practicable" and may dismiss for lack of jurisdiction, frivolousness, bad faith or improper form (s 23). If accepted, the commissioner nominates a mediator and gives written notice of the mediator and conference time/date/place (s 23).
The mediation conference is private and non‑compellable; parties must conduct their own cases and representation by an agent is limited and subject to mediator approval, with corporate parties expressly permitted to be represented (s 25-27). The mediator may allow interested persons to participate (non-parties) if the parties consent and the mediator is satisfied of an interest (s 28).
Evidence, record and confidentiality rules
The Act bars official records of mediation discussions and makes such recording an offence (40 penalty units) with an exception permitting mediators to make appropriate notes (s 31). It renders mediation communications inadmissible in court or tribunal proceedings (s 32). Confidential information obtained under the Act is protected; unauthorised disclosure by persons performing functions under the Act attracts a maximum penalty of 50 penalty units and smaller penalties apply to parties and others (s 38). Mediators themselves are not subject to s 38; instead mediator confidentiality is referenced to the Retail Shop Leases Act 1994, s 113 (s 38(4)).
Exclusionary effect on other jurisdictions
Once an application for mediation is made under s 22, the dispute must not be referred to arbitration or heard by a court or tribunal while the application stands, subject to enumerated exceptions (s 34). This is a key procedural gate that channels disputes into mediation unless a listed exception applies.
Information sharing and privacy carve-outs
The commissioner may enter into information-sharing arrangements with relevant agencies, including other commissioners, departments, local government and prescribed entities. These arrangements allow parties to "ask for and receive" and "disclose" information despite another Act or law (s 37).
Regulation-making and fees
The Governor in Council may make regulations about fees, party obligations in mediation and practices and procedures of the mediation process; regulations may prescribe penalties up to 20 penalty units (s 41). Applications and joinder must be accompanied by fees prescribed by regulation (s 22; s 24).
Review and oversight
Decisions to dismiss applications may be reviewed by the chief executive on application within 28 days (s 36). The Minister can issue binding written directions, and the commissioner must include directions and actions taken in the annual report (s 17; s 20). The Minister may issue a statement of expectations that the commissioner must "have regard to" (s 18). A statutory review of the Act's effectiveness is required about five years after commencement (s 39).
Transitional interactions
Transitional provisions preserve continuity from the COVID-19 era commissioner when needed (s 42) and set out how this Act interacts with COVID-era retail shop leases regulations (s 43-44).
Taken together, those concepts create an administrative ADR mechanism that is procedurally insulated (confidentiality, inadmissibility), administratively supported (delegation, information sharing), subject to ministerial oversight, and equipped with statutory gatekeeping that can stay court processes while mediation is pursued (s 34).
Who it affects
Primary affected groups
Small businesses and their contractual counterparties. The Act expressly targets "small business disputes" and provides a scheme for parties to such disputes to seek informal assistance and mediation (s 3; s 21). The text does not define "small business" in the extracts supplied; however, the commissioner may consider employee numbers and annual turnover as examples when deciding if a dispute is a small business dispute (s 23(3)). This means businesses on both sides of contractual relationships may be affected when the commissioner accepts an application.
Commissioner and staff
The commissioner and public service officers exercising delegated powers are directly affected: appointment, tenure, remuneration and conditions are prescribed (s 9-12). The commissioner is outside the Public Service Act for appointment purposes (s 11(3)), but delegation to appropriately qualified public service officers is permitted (s 8).
Government and regulatory agencies
The Minister, chief executive and other government departments are affected through reporting, directions and information-sharing arrangements (s 17-20; s 37). The Minister can give binding written directions (s 17) and a statement of expectations (s 18) which the commissioner must have regard to; the commissioner must keep the Minister reasonably informed and comply with reasonable information requests (s 19).
Judicial and tribunal actors
Courts and tribunals are affected procedurally because an application for mediation under this Act prevents referral to arbitration or hearing by a court or tribunal while the application stands (s 34). Exceptions apply (e.g. prior proceedings, injunction applications, mediator jurisdiction rejection) but otherwise the Act channels disputes away from litigation during mediation.
Mediators and external ADR providers
Mediators nominated under this Act and persons appointed under the Retail Shop Leases Act to mediate have roles in administering mediations (s 21; s 23). Mediators are permitted to make notes but the Act prohibits official records by others and makes mediation communications inadmissible (s 31-32), shaping mediator practice and record-keeping.
Professional advisors and financiers
Parties and other persons who obtain confidential information under the Act may disclose it to professional advisors or financiers who agree to keep the information confidential (s 38(3)). This creates a defined exception for legal and financial advisers and therefore involves those professions in the confidentiality regime. Professional advisors who receive confidential information must respect confidentiality unless another exception applies.
Third-party interested persons and potential joinders
Persons with an interest in the dispute may apply to be joined or be allowed to take part at the mediator’s discretion and with party consent (s 24; s 28). However, joinder requires consent of existing parties (s 24(3)), so third parties’ participation is contingent on a gatekeeping mechanism.
Parties to retail leases and those covered by COVID-era regulations
Retail tenancy matters are specifically treated: mediators appointed under the Retail Shop Leases Act have jurisdiction to mediate small business disputes under this Act but the Act does not apply to retail tenancy disputes that fall under Part 8 of the Retail Shop Leases Act (s 21). The Act also preserves the operation of the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 for affected lease disputes and some pre‑commencement matters (s 43-44).
Users of court remedies
Parties intending to pursue immediate injunctive relief or already in court are affected because the Act’s stay does not apply to injunction applications or proceedings that commenced before an application under this Act (s 34). Parties must be aware that commencing litigation before applying for mediation can preserve their access to courts.
Fines and sanctions target
Persons who unlawfully record mediation communications or disclose confidential information may face penalties (s 31; s 38). The maximum penalties are expressed in penalty units (40 penalty units for record-making under s 31; 50 penalty units for unauthorised disclosure by persons performing functions under the Act; 20 penalty units for disclosure by parties or other persons , s 31; s 38).
In sum, the Act affects a network of private and public actors: small businesses, counterparties, mediators, the commissioner and staff, ministers and departments, courts and tribunals to a procedural extent, and professional advisors and financiers who are given controlled access to confidential information. The specific operational effect on any individual depends on whether the dispute is accepted for mediation under the Act and whether regulatory conditions and jurisdictional limits are met (s 21-23).
Key duties and rights
Duties of the commissioner and office
Perform functions set out at section 6, which include information provision, informal dispute assistance, mediation administration, advocacy to government and entities, inter-jurisdiction cooperation, and execution of functions under other Acts (s 6).
The commissioner must comply with any written direction from the Minister (s 17(2)) and have regard to a written statement of expectations provided by the Minister (s 18(3)). The commissioner must keep the Minister reasonably informed and comply with reasonable requests for information (s 19).
Prepare an annual report within three months after each financial year and supply it to the Minister who must table it in the Legislative Assembly within 14 days (s 20).
Powers and delegations
The commissioner has "all the powers necessary" to perform functions under this Act and conferred by other Acts (s 7). The commissioner may delegate powers to suitably qualified public service officers (s 8).
Applicant and party duties and rights in mediation
Parties may apply for mediation only after attempting informal assistance from the commissioner and if the dispute is within mediator jurisdiction and regulatory requirements are satisfied; all parties must agree to mediate (s 21).
Application form and procedural duties: applications must be in the approved form, signed by each party, and accompanied by prescribed fees (s 22).
Parties have the right to have the commissioner accept or dismiss applications "as soon as practicable" and, if dismissed, to receive an information notice and a right to have the decision reviewed by the chief executive within 28 days (s 23; s 36).
Parties have a duty to conduct their own case at mediation; representation by an agent is allowed only where (i) the party is a corporation or (ii) the mediator permits it (s 25). Attendance at mediation is not compellable (s 27).
Parties that reach an agreement must record it in writing and sign it; that mediation agreement can be enforced by applying to a court with jurisdiction and the court may make any appropriate order (s 29; s 35).
Confidentiality and prohibited conduct
Parties and persons who obtain confidential information under the Act must not disclose it except in specified limited circumstances: to professional advisors or financiers who agree to confidentiality, with the consent of the person to whom the information relates, or as required/permitted by law (s 38(3)). Penalty: maximum 20 penalty units for parties/other persons.
Persons performing functions under the Act must not disclose confidential information except when performing a function under the Act, with consent, or as required/permitted by law (s 38(2)). Penalty: maximum 50 penalty units.
No one may make an official record of anything said at mediation; penalty: 40 penalty units. Mediators may make notes they consider appropriate (s 31).
Rights to confidentiality and inadmissibility
Evidence of anything said in mediation is not admissible in a court or tribunal proceeding (s 32). This is a statutory evidentiary privilege for communications made during the mediation conference.
Information-sharing powers
The commissioner may enter into information-sharing arrangements with relevant agencies to ask for and receive and disclose information despite other Acts or laws, limited to information that assists the commissioner or the relevant agency in performing their functions (s 37).
Review and appeal rights
Applicants dismissed by the commissioner receive an information notice that must set out reasons and provide information about applying for review to the chief executive. The chief executive must review within 28 days and either confirm or substitute the commissioner’s decision and provide reasons to parties and the commissioner (s 23; s 36).
Regulatory and procedural duties
The Governor in Council may make regulations concerning fees, obligations of parties in mediation, and practices and procedures. Regulations may prescribe penalties up to 20 penalty units (s 41). Parties must comply with any regulation-made requirements applicable to applications and proceedings under the Act (s 21; s 22).
Ministerial control and reporting duties
The Minister can issue binding written directions and statements of expectations that the commissioner must follow or have regard to, and the commissioner must disclose such directions and the actions taken in the annual report (s 17; s 18; s 20).
Transitional duties
If an existing COVID-era small business commissioner is in place at commencement, that person is taken to be the commissioner and continues on their existing remuneration and conditions subject to certain limits; their prior term counts for s 10(2) reappointment calculations (s 42).
Rights to court enforcement
Parties to a mediation agreement retain the right to apply to a court to enforce the mediation agreement; courts have broad discretion to make appropriate orders (s 35).
Collectively, the Act imposes duties on the commissioner to provide a mix of service, oversight and reporting, and it imposes procedural duties and confidentiality obligations on parties and persons involved in mediation while preserving certain rights to court enforcement and administrative review.
Penalties and enforcement
Overview of penalty provisions
The Act specifies discrete criminal or civil penalty unit amounts for breaches of confidentiality and for making official records of mediation conferences. It also allows regulations to prescribe penalties of up to 20 penalty units for contraventions of regulations made under the Act (s 31; s 38; s 41(3)).
Specified penalties in the Act
Official recording prohibition: A person must not make an official record of anything said at a mediation conference, with a maximum penalty of 40 penalty units. Mediators retain a permissive ability to take notes as the mediator considers appropriate (s 31).
Confidentiality for persons performing functions: A person who obtains confidential information in performing a function under the Act must not disclose it except in narrow circumstances. Breach attracts a maximum penalty of 50 penalty units (s 38(2)).
Confidentiality for parties and other persons: A party to a dispute or another person who obtains confidential information under or as a result of the Act must not disclose the information except to a professional advisor or financier (who agrees to confidentiality), with consent, or if required/permitted by law. Breach carries a maximum penalty of 20 penalty units (s 38(3)).
Regulations may impose penalties up to 20 penalty units for contraventions of regulation provisions about fees, obligations of parties in mediation, and practices/procedures (s 41(2)-(3)).
Enforcement mechanisms and remedies
The Act enables parties who enter into mediation agreements to seek enforcement orders from a court with jurisdiction; the court may make any order it deems appropriate (s 35). Enforcement through the courts therefore remains a civil remedy route for concluded mediations.
For decisions to dismiss applications, an administrative review mechanism exists: a party given an information notice may apply to the chief executive for review within 28 days. The chief executive must review and confirm or substitute the commissioner’s decision within 28 days and provide reasons (s 23; s 36). The availability of administrative review is an internal oversight and redress mechanism rather than a criminal enforcement tool.
Practical enforcement pathways
Criminal penalties for unauthorized disclosure or recording will likely be enforced by prosecution or by other administrative arrangements the Act or regulations put in place; the Act itself does not specify the enforcement authority, but the prosecutorial route under general State law would be available.
Courts retain supervisory roles: they can enforce mediation agreements (s 35) and remain available where the Act’s exclusion from court does not apply (e.g., prior proceedings, injunctions), which preserves traditional enforcement and injunctive relief via the judiciary (s 34).
Who enforces what
The Act explicitly places obligations on the commissioner to keep records, report directions in annual reports (s 17; s 20) and comply with Ministerial directions (s 17). It grants the Minister and chief executive oversight levers: the Minister can issue binding directions and statements of expectations (s 17-18); the chief executive handles internal reviews of dismissals (s 36). Courts enforce mediation agreements and potentially adjudicate breaches of confidentiality if prosecuted or if issues arise in related proceedings.
Limits to enforcement powers in the Act
The Act does not itself create a civil cause of action for breaches of confidentiality outside the penalty scheme; nor does it specify administrative sanctions such as suspension or disqualification for mediators. The primary statutory enforcement tools are monetary penalties expressed in penalty units, administrative reviews for application dismissals, and resort to courts for enforcement of mediation agreements.
In sum, enforcement under the Act relies on a mix of criminalised penalties for specified confidentiality and recording breaches, administrative review for procedural decisions, and the regular court system for enforcement of mediation agreements and for matters excluded from the Act’s mediation stay. The Act reserves additional enforcement and procedural detail to regulations (s 41).
How it interacts with other laws
Explicit cross-references and carve-outs
Retail Shop Leases Act 1994: The Act cross-references the Retail Shop Leases Act in multiple places. A mediator appointed under that Act has jurisdiction to mediate small business disputes under this Act (s 21 notes; s 21 referencing Retail Shop Leases Act ss 96 and 97). Crucially, the Act does not apply to retail tenancy disputes under part 8 of the Retail Shop Leases Act; those disputes remain governed by that Act (s 21 note). This creates a specified boundary between the retail lease regime and the general small business mediation route.
Mediator confidentiality: Mediator obligations are separately referenced to the Retail Shop Leases Act, s 113, rather than being restated in full in this Act (s 38(4)). This demonstrates an intent to align mediator secrecy obligations with pre-existing statutory mediator obligations in retail leasing.
COVID-era instruments and transitional operation
Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020: The Act preserves the application of that regulation to "affected lease disputes" (s 43). It also ensures certain pre‑commencement dispute processes under that regulation continue to apply for disputes that were already in process at commencement (s 44). These transitional provisions ensure continuity for disputes already subject to pandemic-era mechanisms.
Public Service and appointment law
The commissioner is appointed under this Act rather than the Public Service Act 2008, explicitly placing the officeholder outside the regular public service appointment regime (s 11(3)). If a public service officer is appointed as commissioner, their accrued public service rights are preserved and their commissioner service counts for public service entitlements (s 12). Removal is subject to the Governor in Council power under this Act but the section does not otherwise limit the Acts Interpretation Act 1954 s 25 (s 15).
Court and arbitration interface
The Act creates a statutory stay on referral to arbitration or litigation from the moment an application for mediation is made under s 22, with specified exceptions (s 34). Exceptions include: withdrawal of the application (s 33); proceedings started before the application was made; applications for injunctive relief to a court; mediators refusing jurisdiction; or the mediator issuing the outcome notice (s 34(2)). For lease-related proceedings, a proceeding is taken to have been started if the lessor has served particular notices under the Property Law Act 1974 (s 34(3) referencing PLA s 124 and s 131). This interaction channels disputes into the mediation process while attempting to preserve emergency judicial remedies and pre-existing court processes.
Information-sharing and statutory privacy conflicts
Section 37 authorises information-sharing arrangements "despite another Act or law" between the commissioner and relevant agencies for functions-related information. Relevant agencies include departments, local governments, equivalent commissioners in other jurisdictions, prescribed Commonwealth or State agencies, and other prescribed entities (s 37(4)). This provision is an express statutory override to enable information exchange for functional purposes, constrained by the requirement that exchanged information must assist the commissioner or the agency in their functions (s 37(2)). However, s 38 then imposes confidentiality obligations on persons who receive confidential information under the Act, defining confidential information and penalties for unauthorised disclosure (s 38). The Act therefore creates a structured exception to other legal prohibitions on disclosure, while re-imposing confidentiality limits.
Regulatory delegation and penalties
The Governor in Council may make regulations about fees, party obligations in mediation, and practices and procedures, and may provide for penalties up to 20 penalty units for contraventions (s 41). This interaction delegates procedural detail and some enforcement capacity to subordinate legislation, requiring attention to the regulations for the full compliance picture.
Interaction with courts on enforcement
Although the Act bars use of mediation communications as evidence (s 32), parties may apply to court to enforce written mediation agreements (s 35). Courts are therefore kept as the enforcement forum for resulting agreements, even though the mediation itself is made legally protected.
Administrative oversight and ministerial power
Ministerial directions under s 17 are binding on the commissioner. The commissioner must report any such directions and the actions taken in the annual report (s 17(3)). Statements of expectations are not binding but must be "had regard to" (s 18). These provisions interact with standard administrative law principles by embedding ministerial control and public disclosure of directions.
Preservation of other statutory roles
The commissioner may "perform functions conferred on the commissioner under another Act" (s 6(f)). This allows the office to be given statutory duties elsewhere and indicates the Act is intended to integrate with other statutory schemes where the commissioner is named.
Overall effect on legal ecosystem
The Act creates a statutory, confidentiality-protected ADR pathway that can displace litigation and arbitration for the life of an application, while aligning with existing specialised regimes (Retail Shop Leases Act; COVID-era regulation) and enabling information exchange with other agencies. It also channels enforcement of mediated outcomes back into the ordinary court system. The Act therefore overlays a statutory mediation structure onto existing dispute resolution and regulatory frameworks with specific carve-outs, coordination mechanisms and delegated procedural detail to regulation.
Amendment history
This version of the Act, as supplied, contains sections noting transitional arrangements from a repealed COVID-19-era instrument. The Act’s commencement date is stated as 3 May 2022 (s 2). The transitional provisions explicitly reference the repealed COVID-19 Emergency Response Act 2020 and the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (s 42-44), indicating a legislative replacement and continuity strategy.
Key structural features that implicitly record prior legislative change
Transitional continuation of existing commissioner: Section 42 takes the person who held the role under the repealed COVID-19 Emergency Response Act 2020, part 6 and deems that person to be appointed under this Act on commencement, preserving remuneration and conditions subject to limits (s 42(1)-(5)). It further treats the prior term for s 10(2) reappointment calculations. That provision evidences an explicit legislative handover from the COVID-19-era temporary instrument to the permanent Act.
Preservation of pre‑commencement dispute processes: Section 44 preserves the operation of the COVID-era regulation for particular disputes that were in active process just before commencement, showing an intent to avoid disrupting ongoing dispute resolution by transitional repeal (s 44).
No other amendments are contained within the supplied text. The Act creates a five-year statutory review obligation for the Minister to review the Act's effectiveness "as soon as practicable after" five years from commencement and to table a report of the review in the Legislative Assembly (s 39). That requirement implicitly expects a future legislative or administrative response based on the review but does not itself amend the Act.
Regulation-making power and likely subordinate amendments
Section 41 authorises the Governor in Council to make regulations about fees, party obligations and mediation practices and procedures, and to prescribe penalties up to 20 penalty units for contraventions. The existence of that power means the practical operation of the Act can be modified through subordinate instruments rather than primary-legislation amendments. Any such regulations would amend operational details without changing the Act’s primary text.
Appointment and tenure settings
The Act sets appointment mechanics and maximum terms (s 9-11), including the Commissioner being appointed under this Act and not under Public Service Act 2008 (s 11(3)). That choice likely replaced any previous arrangement under the COVID-era instrument, but the supplied text does not include explicit amendment dates beyond the commencement and transitional clauses.
Absence of other amendment notes
The supplied text contains no schedules of amendment to other Acts beyond cross-references and transitional continuity. There are no saving provisions amending other Acts besides the transitional preservation of COVID-era arrangements.
Practical implication for readers
Because the Act explicitly references a repealed COVID-19 instrument and preserves continuity, readers should treat the Act as a consolidation and replacement of an emergency-era small business commissioner regime. Operational detail and potential changes to fees, practice and penalties are left to subordinate regulations, which are likely to have been developed or amended after commencement; practitioners should examine those regulations for any amendments to the Act’s operational framework.
Litigation history
The supplied text contains no case law, judicial commentary or recorded litigation history. It does, however, set out specific interactions that create potential for litigation in the future:
Potential litigation touchpoints implicit in the Act
Enforcement of mediation agreements: s 35 allows parties to apply to a court to enforce mediation agreements. That creates a predictable stream of civil enforcement applications where mediations result in written agreements whose terms are disputed or not complied with.
Review of dismissal decisions: s 36 requires the chief executive to review a commissioner’s refusal to accept a mediation application. Although this is an internal review mechanism rather than external judicial review, parties unhappy with the outcome may seek judicial review on administrative law grounds in appropriate circumstances outside the Act’s express review mechanism.
Confidentiality breaches and admissibility: s 32 bars admissibility of mediation communications, while s 38 criminalises unauthorised disclosures. Courts will be the forum for disputes about whether particular communications fall within the statutory privilege, whether exceptions apply (e.g., required or permitted by law), or whether a party has breached confidentiality in ways that give rise to civil or criminal consequences.
Interaction with pre-existing proceedings: s 34 preserves court and tribunal jurisdiction where proceedings were started before an application for mediation. Disputes may arise about whether a proceeding was "started" before an application, with the Act providing a specific lease-related example referencing Property Law Act notices (s 34(3)). Such questions about timing and procedural effect could generate litigation.
Mediator jurisdiction refusals: if a mediator refuses to mediate on jurisdictional grounds, that is an exception to the stay on other proceedings (s 34(2)(d)). Parties may litigate jurisdictional questions about whether a dispute properly falls under the commissioner’s mediation jurisdiction, particularly where cross-border or franchising issues are involved (s 21(2) mentions ATO Ombudsman referral for franchise disputes).
Absence of named judicial decisions
The Act text does not name any judicial decisions or earlier litigation. Any authoritative interpretation will therefore depend on future litigated cases and administrative guidance. Practitioners should therefore monitor court decisions and QCAT jurisprudence as the scheme is used.
Administrative and statutory avenues expected
The chief executive review route for application dismissals (s 36) is an administrative remedy contained within the Act and could be a precursor to judicial review in certain cases if administrative decisions are challenged on public law grounds.
In short, while there is no existing litigation history provided in the Act text, the Act sets up multiple potential points of dispute that will likely produce litigation or administrative contestation as practice develops, particularly on admissibility, confidentiality scope, timing of proceedings, jurisdictional limits and enforcement of agreements.
Gotchas
Operational exclusions and stay consequences
Filing for mediation under s 22 triggers an exclusion of referral to arbitration or court/tribunal hearing under s 34(1). That stay is absolute from the moment the application is made, subject to enumerated exceptions (s 34(2)). Parties who wish to preserve their right to litigate should initiate court proceedings before applying for mediation, or rely on injunctive relief exceptions, otherwise they risk being prevented from pursuing litigation while mediation is active (s 34(2)(b)-(c)). For lease matters, the Act provides a specific test for when a proceeding is "started" (s 34(3)), which practitioners must follow.
Informal assistance prerequisite and potential strategic delay
Parties may only apply for mediation if they have "attempted to resolve the dispute by seeking informal assistance from the commissioner" (s 21(1)(a)). This creates an extra procedural step that could either expedite resolution or introduce delay if parties misunderstand what constitutes sufficient informal assistance. The Act does not define in detail what form that informal assistance must take, leaving scope for administrative interpretation.
Jurisdictional uncertainty and commissioner discretion
The commissioner may dismiss applications where the dispute "does not relate to a small business dispute" and may, for "deciding whether or not a dispute is a small business dispute", have regard to employee numbers and annual turnover as examples (s 23(2)-(3)). Because "small business dispute" is not exhaustively defined in the supplied text, ambiguity remains that could lead to inconsistent gatekeeping, creating risk of rejected applications and consequent administrative reviews under s 36.
Representation rules at mediation
Parties must conduct their own cases and may only be represented by an agent if the party is a corporation or the mediator permits (s 25). This limitation may be counter‑intuitive in complex commercial disputes where parties would ordinarily be represented by lawyers. The mediator’s discretion might therefore become a frequent battleground; parties should obtain mediator consent early if legal representation is desired.
Confidentiality exceptions and practical disclosure avenues
Confidentiality under s 38 permits disclosure to professional advisors or financiers who agree to keep the information confidential, and allows disclosures "otherwise required or permitted by law" or with the consent of the person whose information it is (s 38(2)-(3)). The "required or permitted by law" carve-out could encompass statutory disclosure obligations or court orders, which could expose mediation materials to disclosure. Parties should assess what other laws may require disclosure before revealing sensitive information in mediation.
Inadmissibility scope and related evidence rules
Section 32 states that evidence of anything said in a mediation conference is not admissible in a proceeding before a court or tribunal. It does not, however, specify whether derivative evidence or independent evidence discovered outside mediation could be used. Parties should be cautious about relying on s 32 as an absolute shield for all related evidence.
Regulatory detail and fees delegated
The Act leaves fees, procedural obligations and mediation practices to regulation (s 41). Until relevant regulations are consulted, parties cannot be certain of the costs and procedural obligations they must comply with. The Act requires applications and joinder applications to be accompanied by fees prescribed by regulation (s 22; s 24). Practitioners should check the current regulations for deadlines and fee levels.
Penalties and practical enforcement
The Act imposes criminal penalties in penalty units (s 31; s 38), but does not provide detail on enforcement mechanisms or remedies beyond penalties and court enforcement of mediated agreements (s 35). Parties concerned about breaches of confidentiality may need to pursue criminal prosecutions or civil remedies outside the Act’s text, with attendant evidentiary and procedural challenges.
Ministerial directions and independence
The Minister may give binding written directions the commissioner must comply with (s 17(1)-(2)) and the commissioner must record such directions and actions taken in the annual report (s 17(3); s 20). This creates an explicit ministerial control lever that might affect perceptions of independence. The Act also allows the Minister to issue statements of expectations that the commissioner must "have regard to" (s 18). Users should be aware that the office is subject to statutory direction and oversight.
Transitional and COVID-era overlaps
Transitional provisions preserve the COVID-era regulation for "affected lease disputes" and continue its application for some pre-commencement matters (s 43-44). Parties engaged in disputes around the commencement period should check whether the COVID-era regulation or this Act applies to their matter.
Information-sharing carve-outs across Acts
Section 37 permits information-sharing "despite another Act or law" but restricts sharing to information that assists performance of functions. The practical interplay with privacy, confidentiality and secrecy statutes could be complex. Parties should be attentive to what information is shared, with whom, and under what authorisation.
Limited mediator rules and record-keeping
The Act forbids "official records" of mediation communications (s 31) but permits mediators to make notes. The distinction between "official record" and mediator notes may be fuzzy in practice, and disputes may arise if parties seek access to mediator notes or challenge the content/accuracy of such notes.
In essence, the main practical "gotchas" are procedural gating effects (stay on litigation), ambiguity about what counts as a small business dispute, limitations on representation and recording, ministerial directions and delegated regulatory detail. Practitioners should verify regulations, confirm mediator practices and consider timing of court filings if preservation of litigation rights is desired.
How to comply
Pre-application steps and practical checklist
Attempt informal assistance from the commissioner before applying for mediation. Section 21 requires that parties have "attempted to resolve the dispute by seeking informal assistance from the commissioner" as a precondition for applying for mediation. Keep contemporaneous written records of those informal attempts (dates, communications, outcomes) to demonstrate compliance if the commissioner queries the procedural precondition (s 21(1)(a); s 23).
Check mediator jurisdiction and regulatory requirements. Confirm the dispute is within a mediator’s jurisdiction and that any regulation-prescribed requirements have been met (s 21(1)(b)-(c)). For retail tenancy disputes, determine whether the Retail Shop Leases Act applies instead (s 21 note).
Agree to mediate. All parties must consent to mediate under this Part (s 21(1)(d)). Obtain signed, dated consent from all parties before submitting an application.
Application formalities
Use approved forms and provide signatures and fees. Applications must be in the approved form, signed by each party, and accompanied by the fee prescribed by regulation (s 22). Confirm with the commissioner’s office or the relevant regulations which form and fee are current (s 40; s 41).
Anticipate joinder requests. If a third party seeks to be joined, they must apply in the approved form with any prescribed fee (s 24). The commissioner may only join a person as a party with the consent of all current parties (s 24(3)). Parties should respond promptly to joinder requests.
Procedural behaviour at mediation
Prepare to conduct your own case. Parties are required to conduct their own cases at mediation; representation by an agent is limited to corporate parties or cases where the mediator permits such representation (s 25). If legal representation is required, apply to the mediator for permission in advance and set out reasons why counsel is necessary (s 25(1)-(2)).
Respect privacy and no-recording rules. The mediation conference is private and no official record of anything said may be made by anyone (s 26; s 31). Ensure that staff and advisers understand the prohibition on records and that any mediator note-taking is confidential and limited to the mediator’s discretion (s 31(2)). Avoid creating audio or written verbatim records that could breach s 31.
Maintain confidentiality of information. Do not disclose confidential information obtained under the Act unless disclosure falls within the Act’s narrow exceptions: for the performance of a function under the Act, with consent, to a professional advisor or financier who agrees to confidentiality, or as otherwise required or permitted by law (s 38). Where disclosure to a professional adviser is contemplated, obtain a written confidentiality undertaking from the adviser.
Evidence and admissibility considerations
Be aware that communications during mediation are inadmissible in proceedings (s 32). If you intend to preserve the ability to use particular evidence in litigation, avoid creating testimony or admissions in mediation that you may later wish to rely upon. Conversely, take care that the inadmissibility does not prevent later necessary evidence from being used (seek legal advice on admissibility limits).
Timelines and litigation strategy
If you or your counterparty need immediate injunctive relief or if a court proceeding is already on foot, consider timing: the Act’s stay on litigation applies once an application is made (s 34). To preserve access to courts, commence proceedings before making an application, or pursue injunctive relief where appropriate (s 34(2)(b)-(c)). For lease matters, check whether a proceeding is “started” under the Property Law Act notices referenced in s 34(3).
Responding to application dismissal
If the commissioner dismisses an application, expect an information notice setting out reasons and an explanation of the right to seek review by the chief executive within 28 days (s 23; s 36). Prepare a written review application within the statutory period, stating grounds for review. The chief executive must decide within 28 days and provide reasons (s 36(4)-(5)).
Dealing with information-sharing arrangements
Where the commissioner or other relevant agencies seek to share information under s 37, confirm the purpose and the legal basis. If you are a party whose information may be shared, exercise rights to consent or query the scope; ensure professional advisors receiving information agree in writing to confidentiality as required under s 38(3)(a).
Mediation outcomes and enforcement
If an agreement is reached, ensure the mediation agreement is in writing and signed by the parties (s 29). Keep a copy of the signed mediation agreement; enforcement requires applying to a court with jurisdiction, and courts may make any appropriate orders to enforce the agreement (s 35).
Ongoing compliance with ministerial direction and disclosure
If you are the commissioner or a delegated officer, be prepared to comply with ministerial directions (s 17) and to account for those directions in the annual report (s 17(3); s 20). Ensure that any performance frameworks, statements of expectations and reporting obligations are documented and integrated into operational processes (s 18-20).
Practical record-keeping and internal policies
Develop internal policies consistent with the Act’s confidentiality and no-record rules, including staff training, secure handling of documents, and processes for dealing with third-party access. If your business routinely receives mediation-related information, implement written confidentiality agreements for professional advisors and financiers who may receive confidential material (s 38(3)(a)).
Regulatory awareness
Since fees, obligations and processes may be prescribed by regulation (s 41), maintain an up-to-date compliance pack with the current regulations, approved forms (s 40), fee schedules and procedure guides. Review regulations and any administrative guidance periodically because they may change practices and fees.
Transitional and sectoral matters
For retail leasing disputes and disputes that might be affected by the COVID-era regulation, check whether the matter falls under the Retail Shop Leases Act, the COVID-era regulation, or this Act (s 21; s 43-44). Transitional rules may preserve prior pathways for disputes in progress at the time of commencement.
In short, compliance requires procedural planning before applying for mediation (informal assistance, consent, jurisdiction check), strict adherence to form, fee and confidentiality rules, careful consideration of litigation timing, and ongoing monitoring of subordinate regulations and administrative practice.
(c) to assist parties in reaching an informal resolution for small business disputes, including by facilitating the exchange of information between the parties; and
(d) to provide alternative dispute resolution services and administer a mediation process for small business disputes; and
(e) to advocate on behalf of small businesses to— (i) the State, the Commonwealth, another State or a local government; or (ii) any other entity involved in administering a matter relevant to small businesses; and
(i) the State, the Commonwealth, another State or a local government; or
(ii) any other entity involved in administering a matter relevant to small businesses; and
(f) to work collaboratively with the equivalent of the commissioner in other States or the Commonwealth to enhance conditions for small businesses; and
(g) to perform functions conferred on the commissioner under another Act; and
(h) to carry out other activities to further the objects of this Act, as directed by the Minister.
(i) the State, the Commonwealth, another State or a local government; or
(ii) any other entity involved in administering a matter relevant to small businesses; and
sec.7 Powers
sec.7 Powers
The commissioner has all the powers necessary for performing the commissioner’s functions under this Act or conferred on the commissioner under another Act.
sec.8 Delegation
sec.8 Delegation
The commissioner may delegate a power of the commissioner under this Act or another Act to a public service officer who is appropriately qualified to exercise the power delegated.
pt.2-div.2 Appointment
Appointment
sec.9 Appointment
sec.9 Appointment
The commissioner is appointed by the Governor in Council on the recommendation of the Minister.
The Minister may recommend a person only if the person is appropriately qualified to perform the functions of the commissioner.
(sec.9-ssec.1) The commissioner is appointed by the Governor in Council on the recommendation of the Minister.
(sec.9-ssec.2) The Minister may recommend a person only if the person is appropriately qualified to perform the functions of the commissioner.
sec.10 Term of appointment
sec.10 Term of appointment
The commissioner holds office for the term, of not more than 5 years, stated in the commissioner’s instrument of appointment.
A person may be re-appointed as commissioner only once for a further term of not more than 5 years.
(sec.10-ssec.1) The commissioner holds office for the term, of not more than 5 years, stated in the commissioner’s instrument of appointment.
(sec.10-ssec.2) A person may be re-appointed as commissioner only once for a further term of not more than 5 years.
sec.11 Conditions of appointment
sec.11 Conditions of appointment
The commissioner is to be paid the remuneration and allowances decided by the Governor in Council.
A person holds office as the commissioner on the conditions decided by the Governor in Council.
The commissioner is appointed under this Act and not the Public Service Act 2008 .
(sec.11-ssec.1) The commissioner is to be paid the remuneration and allowances decided by the Governor in Council.
(sec.11-ssec.2) A person holds office as the commissioner on the conditions decided by the Governor in Council.
(sec.11-ssec.3) The commissioner is appointed under this Act and not the Public Service Act 2008 .
sec.12 Preservation of rights of commissioner
sec.12 Preservation of rights of commissioner
This section applies if a person who is a public service officer is appointed as commissioner.
The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer.
At the end of the person’s term of office or resignation as commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.
(sec.12-ssec.1) This section applies if a person who is a public service officer is appointed as commissioner.
(sec.12-ssec.2) The person keeps all rights accrued or accruing to the person as a public service officer as if service as the commissioner were a continuation of service as a public service officer.
(sec.12-ssec.3) At the end of the person’s term of office or resignation as commissioner, the person’s service as the commissioner is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.
sec.13 Vacancy in office of commissioner
sec.13 Vacancy in office of commissioner
The office of commissioner becomes vacant if the commissioner—
resigns under section 14 ; or
is removed by the Governor in Council under section 15 .
(a) resigns under section 14 ; or
(b) is removed by the Governor in Council under section 15 .
sec.14 Resignation
sec.14 Resignation
The commissioner may resign the commissioner’s office by giving the Minister a signed letter of resignation.
The resignation takes effect when the Minister receives the resignation or, if a later day is stated in the letter, the later day.
(sec.14-ssec.1) The commissioner may resign the commissioner’s office by giving the Minister a signed letter of resignation.
(sec.14-ssec.2) The resignation takes effect when the Minister receives the resignation or, if a later day is stated in the letter, the later day.
sec.15 Removal
sec.15 Removal
The Governor in Council may remove a person from office as the commissioner if the person—
is guilty of misconduct; or
is incapable of performing the functions of the commissioner; or
has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
This section does not otherwise limit the Acts Interpretation Act 1954 , section 25 .
(sec.15-ssec.1) The Governor in Council may remove a person from office as the commissioner if the person— is guilty of misconduct; or is incapable of performing the functions of the commissioner; or has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
(sec.15-ssec.2) This section does not otherwise limit the Acts Interpretation Act 1954 , section 25 .
(a) is guilty of misconduct; or
(b) is incapable of performing the functions of the commissioner; or
(c) has neglected the duties of the commissioner, or performed the duties of the commissioner incompetently.
sec.16 Acting commissioner
sec.16 Acting commissioner
The Minister may appoint a person to act in the office of commissioner during—
a vacancy in the office of commissioner; or
a period when the commissioner is absent from duty, or can not, for another reason, perform the functions of the office.
(a) a vacancy in the office of commissioner; or
(b) a period when the commissioner is absent from duty, or can not, for another reason, perform the functions of the office.
pt.2-div.3 Role of Minister and reporting requirements
Role of Minister and reporting requirements
sec.17 Ministerial direction
sec.17 Ministerial direction
The Minister may give the commissioner a written direction about a matter relevant to the performance of the commissioner’s functions.
The commissioner must comply with a direction given under subsection (1) .
The commissioner must include details, in the commissioner’s annual report prepared under section 20 , of—
any direction given by the Minister under subsection (1) during the financial year to which the report relates; and
the actions taken by the commissioner as a result of the direction.
(sec.17-ssec.1) The Minister may give the commissioner a written direction about a matter relevant to the performance of the commissioner’s functions.
(sec.17-ssec.2) The commissioner must comply with a direction given under subsection (1) .
(sec.17-ssec.3) The commissioner must include details, in the commissioner’s annual report prepared under section 20 , of— any direction given by the Minister under subsection (1) during the financial year to which the report relates; and the actions taken by the commissioner as a result of the direction.
(a) any direction given by the Minister under subsection (1) during the financial year to which the report relates; and
(b) the actions taken by the commissioner as a result of the direction.
sec.18 Statement of expectations
sec.18 Statement of expectations
The Minister may give the commissioner a written statement (a statement of expectations ) about the Minister’s expectations for the performance of the commissioner’s functions.
Without limiting subsection (1) , the statement of expectations may—
state a particular period for which the statement applies; and
provide for the nature and scope of the commissioner’s activities for a particular period.
The commissioner must have regard to the statement of expectations in performing the commissioner’s functions.
(sec.18-ssec.1) The Minister may give the commissioner a written statement (a statement of expectations ) about the Minister’s expectations for the performance of the commissioner’s functions.
(sec.18-ssec.2) Without limiting subsection (1) , the statement of expectations may— state a particular period for which the statement applies; and provide for the nature and scope of the commissioner’s activities for a particular period.
(sec.18-ssec.3) The commissioner must have regard to the statement of expectations in performing the commissioner’s functions.
(a) state a particular period for which the statement applies; and
(b) provide for the nature and scope of the commissioner’s activities for a particular period.
sec.19 Reporting to Minister
sec.19 Reporting to Minister
The commissioner must—
keep the Minister reasonably informed about the functions performed and activities carried out by the commissioner; and
comply with a reasonable request by the Minister to give the Minister stated information at a stated time about the functions performed or activities carried out by the commissioner.
(a) keep the Minister reasonably informed about the functions performed and activities carried out by the commissioner; and
(b) comply with a reasonable request by the Minister to give the Minister stated information at a stated time about the functions performed or activities carried out by the commissioner.
sec.20 Annual report
sec.20 Annual report
The commissioner must prepare and give to the Minister, within 3 months after the end of each financial year, an annual report on the functions performed, and activities carried out, by the commissioner during the financial year.
The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving it.
(sec.20-ssec.1) The commissioner must prepare and give to the Minister, within 3 months after the end of each financial year, an annual report on the functions performed, and activities carried out, by the commissioner during the financial year.
(sec.20-ssec.2) The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving it.
pt.3 Mediation
Mediation
sec.21 Who may apply
sec.21 Who may apply
The parties to a small business dispute may apply for mediation of the dispute under this part only if—
the parties to the dispute have attempted to resolve the dispute by seeking informal assistance from the commissioner; and
the dispute is within a mediator’s jurisdiction; and
A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 .
This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act.
any requirements prescribed by regulation for this section have been complied with by the parties to the dispute; and
all parties to the dispute agree to mediate the dispute under this part.
Also, an application may be made by the parties to a small business franchise dispute only if the Australian Small Business and Family Enterprise Ombudsman established under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (Cwlth) , section 12 has referred the dispute to the commissioner.
(sec.21-ssec.1) The parties to a small business dispute may apply for mediation of the dispute under this part only if— the parties to the dispute have attempted to resolve the dispute by seeking informal assistance from the commissioner; and the dispute is within a mediator’s jurisdiction; and A mediator appointed under the Retail Shop Leases Act 1994 has jurisdiction to mediate small business disputes under this Act. See the Retail Shop Leases Act 1994 , sections 96 and 97 . This part does not apply to a retail tenancy dispute under the Retail Shop Leases Act 1994 . Retail tenancy dispute resolution is provided for in part 8 of that Act. any requirements prescribed by regulation for this section have been complied with by the parties to the dispute; and all parties to the dispute agree to mediate the dispute under this part.
(sec.21-ssec.2) Also, an application may be made by the parties to a small business franchise dispute only if the Australian Small Business and Family Enterprise Ombudsman established under the Australian Small Business and Family Enterprise Ombudsman Act 2015 (Cwlth) ,
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