Small Business Development Corporation Act 1983

The Act relies on a set of definitional and structural concepts that determine who and what it governs, how power flows, and what instruments the Corporation and Commissioner may use.

Small business. The primary definitional gate is “small business” at s 3(1). A business qualifies only if it is wholly owned and operated by an individual or individuals in partnership or by a proprietary company, has a relatively small market share, is managed personally by owners/directors, and is not part of a larger enterprise. The Governor may declare other undertakings to be small businesses by Order in Council (s 3(2)). That definitional construct narrows statutory beneficiaries to independent, owner‑managed entities unless the Governor expands the class.

Corporation and board. The Corporation is a body corporate with the usual corporate capacities (s 4(1)-(2)). The board is the governing body and is to perform the Corporation’s functions in the Corporation’s name (s 5(2A); s 4(2)(d)). Board composition is prescriptive: two members representing non‑metropolitan small business, five representing metropolitan small business, plus the Commissioner ex officio (s 5(1)). Appointments and chair selection are ministerial functions (s 5(2B)). Appointed members’ terms are capped at three years (s 5(2)), and the Minister may terminate appointments for inability, inefficiency or misbehaviour (s 5(4)). Quorum is four (s 8(2)) and equal votes result in the motion being lost (s 8(4)(b)).

Commissioner. The Commissioner is the Chief Executive Officer appointed under the Public Sector Management Act Part 3 and is responsible for the Corporation’s day to day administration (s 13; s 14A(1)(a)). The Commissioner holds investigatory and ADR functions (s 14A(1)(b), (d)), may make representations on behalf of small businesses (s 14A(1)(e)), and may provide reports to the Minister or government entities (s 14A(1)(eb)). The Commissioner has broad auxiliary powers, including the power to raise fees or charges (s 14B). The Commissioner also has express powers to request documents and information for investigations, subject to statutory timeframes and penalties (s 14BA).

Financial assistance and grants. Section 11AA gives the Corporation explicit power to provide financial assistance and grants to small businesses and, with guidelines, to non‑government organisations and other persons to financially benefit small businesses (s 11AA(1)(a)-(b)). The Corporation must make and publish guidelines for assistance to third parties (s 11AA(3)-(5)). The Corporation may enter into contracts or arrangements in relation to financial assistance (s 11AA(1)(c); s 11(3)(c)).

Investigative and coercive tools. The Commissioner may, for investigatory purposes, request documents, things and information (s 14BA(1)). Requests may be oral or written, can require verification by statutory declaration, and must specify time frames (s 14BA(4)). Non‑compliance and false or misleading responses incur a $20 000 fine (s 14BA(5)-(7)); prosecutions require Commissioner authorisation (s 14BA(8)). The Commissioner must allow persons adverse information rights to make submissions before a report containing adverse information is given to the Minister or government entity (s 14BB(2)-(3)).

Alternative dispute resolution. The Act defines ADR broadly (s 15A) and allows parties to request ADR through the Commissioner (s 15D). The Commissioner decides whether to commence ADR, may appoint facilitators, may add parties with consent, and determines costs (s 15E-15G). Evidence of anything said or done in ADR is inadmissible in court or tribunal proceedings unless the parties consent (s 15I), which encourages candid negotiations by severing ADR content from later litigation evidential use.

Accountability and oversight. The Minister may give written directions to the Corporation or Commissioner generally or in relation to particular matters, but not with respect to particular persons, applications, complaints or investigations under s 14A(1)(b) or (ea) (s 18B(1)-(3)). Directions must be laid before Parliament within 14 sitting days and included in the Corporation’s annual report (s 18B(4)). The Minister has broad information entitlements from the Corporation and Commissioner but those entitlements are qualified where disclosure would identify a person in a particular application, complaint or proceeding absent consent, and s 14A(1)(eb) reports are excepted from that identity protection (s 18C(2)-(6)).

Confidentiality and protections. Officials are prohibited from using or disclosing information obtained in the course of duty except for statutory purposes, other legal requirements, written consent, or prescribed circumstances; penalty $10 000 (s 18(1)-(2)). Complainant identity enjoys express protection (s 18AA). These statutory restraints intersect with the Commissioner’s investigatory and reporting obligations and with Ministerial information entitlements.

Financial administration. Funds are held in the Small Business Development Corporation Account, an agency special purpose account (s 19(1)-(3)). The FMA and Auditor General Act rules apply to the Corporation’s financial administration and audit (s 21).

Delegation and staffing. The Corporation may delegate functions in writing to the Commissioner, appointed members, employees or other persons with Ministerial approval (s 11A). The Commissioner may delegate to employees, but not the prosecution authorisation under s 14BA(8) (s 14C(1)-(4)). The Corporation may employ staff under its own terms and conditions, with Part 3 of the Public Sector Management Act expressly not applying to those employees (s 15(1)-(4)), while SES provisions prevail where applicable (s 16). The Corporation may also make use of public sector staff and facilities by arrangement (s 17).

Review obligation. The Minister must review the 2020 amendments, with particular regard to s 14BA, and table a report after the second anniversary of the amendment commencement (s 24A). That obligation introduces a statutory checkpoint on the operation of the investigative powers added in 2020.

These concepts determine eligibility, sources of power, accountability channels, and the main instruments the Corporation and Commissioner will use. The statute combines advisory, funding, investigatory and ADR tools with a regulated accountability architecture.

The Act creates multiple classes of affected persons and institutions, distributed across private and public sectors. Below are the principal groups and the statutory mechanisms that affect them.

Small businesses and potential grant recipients. The principal beneficiaries are businesses that meet the statutory definition of “small business” at s 3(1). Those businesses can request assistance, access advisory services, participate in ADR, receive financial assistance and grants from the Corporation when guidelines permit (s 15B; s 11; s 15D; s 11AA(1)). The Governor’s power to declare additional business undertakings small businesses (s 3(2)) means the class may be broadened by executive order.

Non‑government organisations and third parties. The Corporation may give financial assistance, grants and operational funding to non‑government organisations working with, or on behalf of, small businesses, and to persons who are not small businesses for the purposes of financially benefitting small businesses, provided the Corporation makes the required guidelines (s 11AA(1)(b)-(3)). Those entities are thus potential grant recipients but must comply with Corporation guidelines and any contract terms (s 11AA(1)(c)).

Owners and operators who are complainants. Persons who make complaints to the Commissioner about matters affecting the commercial activities of small businesses are affected by the Act’s complaint handling, investigatory and protection provisions. Complainants can request the Commissioner’s assistance (s 15B). The Act expressly protects complainant identity (s 18AA), and the Commissioner may refuse to disclose information that might identify them (s 18AA(2)). Those protections will affect public sector bodies and other third parties who might otherwise seek disclosure.

Public sector bodies and local governments. The Commissioner may investigate “the actions of public sector bodies that affect the commercial activities of small businesses” (s 11(2)(fb); s 14A(1)(ea)). Public sector bodies and local governments are therefore objects of investigatory scrutiny and can be required to produce documents or information relevant to Commissioner investigations (s 14BA). The Commissioner must avoid duplicating the work of departments and work cooperatively (s 14A(3)), which affects inter‑agency coordination and may limit parallel inquiries.

Businesses in commercial dealings. The Corporation has functions aimed at facilitating fair treatment of small businesses in commercial dealings and investigating emerging market practices that adversely affect small business (s 11(2)(fd)-(fe)). Other businesses that engage with small businesses can therefore expect the Corporation to take an interest in market practices and may be drawn into ADR or representations.

Board members, Commissioner and staff. Appointed members, the Commissioner (as CEO), and persons employed or engaged by the Corporation are directly governed by statutory appointment, remuneration, delegation and confidentiality rules. Appointed members are ministerially appointed for terms not exceeding three years (s 5(2)), and the Minister may terminate appointments for inability, inefficiency or misbehaviour (s 5(4)). Staff employed by the Corporation are outside Part 3 of the Public Sector Management Act (s 15(4)), although SES provisions prevail for SES staff (s 16).

Ministers and Parliament. The Minister for Small Business (or the Minister to whom the Act’s administration is assigned) has supervisory powers: appointment of board members and chair (s 5(2B)), power to give directions to the Corporation and Commissioner within defined limits (s 18B(1)-(3)), and broad rights to access information from the Corporation and Commissioner subject to identity protections (s 18C(2)-(6)). The Minister must lay directions before each House of Parliament within 14 sitting days (s 18B(4)(a)), impacting parliamentary visibility of executive instructions.

Regulators and Commonwealth agencies. The definition of government entity at s 3(1) includes Commonwealth regulators such as the ACCC and ASIC by express reference (s 3(1)(e)-(f)). Those bodies are included in the list of entities with which the Commissioner may interact and to which reports may be given (s 14A(1)(eb)), potentially implicating intergovernmental coordination.

Persons required to produce information or documents. The Commissioner’s power under s 14BA to request documents and information for investigations imposes statutory obligations on persons in possession of relevant material. Failure to comply, provision of false or misleading information, or altering/destroying requested documents attracts a $20 000 fine (s 14BA(5)-(7)).

Parties to disputes. Parties to small business disputes who engage in Commissioner‑run ADR are affected by the Act’s ADR regime: the Commissioner can determine whether ADR proceeds (s 15E(2)), appoint facilitators (s 15E(3)), determine costs and their allocation (s 15G), and ADR communications are inadmissible unless parties agree (s 15I). That shifts procedural and evidential dynamics for disputes involving small businesses.

Auditor, finance officers and contractors. Financially, the Corporation’s account is subject to the FMA and audit provisions (s 19; s 21). Auditors, chief financial officers and contractors providing services under contracts with the Corporation will be affected by the account, reporting and audit rules.

Legal practitioners and representatives. Lawyers and agents who represent parties in ADR (permitted by s 15H(1)) or who act for entities responding to Commissioner investigations will be affected by the Act’s evidentiary and procedural rules, confidentiality obligations and statutory penalties for false or misleading information (s 14BA(6)).

In sum, the Act affects a layered set of private and public actors: small businesses and third‑party grant recipients on the beneficiary side, public sector bodies and other market participants as objects of investigation or ADR, the Minister and Parliament as overseers, and board members, Commissioner and staff as administrators. Statutory definitions, information powers, grant mechanisms and ADR procedures define who is within scope and what obligations or entitlements apply.

This section identifies the explicit duties placed on persons and institutions by the Act and the corresponding rights conferred, with references to the sections that create those obligations and entitlements.

Corporation’s duties and rights. The Corporation must administer the Act subject to the Minister’s general direction and control (s 11(1)). Its functions include promoting small business development, providing assistance, making representations to the Minister, liaising with industry associations and the government, providing grants and financial assistance (including under s 11AA), arranging training and information services, carrying out research, and facilitating fair commercial treatment of small businesses (s 11(2)(a)-(n); s 11(3)). The Corporation may raise fees and charges and enter contracts (s 11(3)(a), (c)). It must publish any guidelines made under s 11AA(2) or (3) on its website (s 11AA(5)). The Corporation also has the right to delegate functions by instrument (s 11A(1)-(4)).

Board members’ duties and entitlements. Appointed members serve up to three years per appointment and are eligible for reappointment (s 5(2)). Members attend meetings and vote; each member has a deliberative vote and the chair (or acting chair) presides (s 8(3)-(4)). Leave of absence may be granted by the Minister (s 5(3)). Members (other than public servants) are remunerated as determined by the Minister on the Public Sector Commissioner’s recommendation (s 7(1)). The Minister may terminate appointments for inability, inefficiency or misbehaviour (s 5(4)). A vacancy arises under specific conditions such as bankruptcy, termination, absence without leave from three consecutive meetings, or resignation (s 5(5)). A vacancy or defect in appointment does not invalidate acts of the board where a quorum exists (s 9).

Commissioner duties and rights. The Commissioner must administer the Corporation’s day‑to‑day operations and may receive complaints, investigate matters affecting small business commercial activity, provide assistance to resolve complaints, provide ADR services, make representations on behalf of small businesses, investigate and report on matters, and advise the Minister (s 14A(1)(a)-(g)). The Commissioner has the power to raise fees or charges (s 14B). In investigatory functions, the Commissioner must avoid duplicating the operations of departments with overlapping functions and work cooperatively with them (s 14A(3)). The Commissioner may request documents and information for investigations and is empowered to keep documents briefly for copying, with an obligation to return them within seven business days (s 14BA(1)-(3)). The Commissioner must provide persons with a reasonable opportunity to make written submissions before including adverse information about them in reports to the Minister or government entities (s 14BB(2)). The Commissioner may delegate certain powers to staff but cannot delegate the power to authorise prosecutions under s 14BA(8) (s 14C(1)-(3)).

Obligations of persons subject to Commissioner requests. Persons must comply with requests for documents, things and information made under s 14BA unless they have a reasonable excuse (s 14BA(5)). They must not provide false or misleading material, omit information that would render produced material misleading, or alter, suppress or destroy requested material, each breach attracting a $20 000 penalty (s 14BA(6)-(7)). Prosecutions for these offences require Commissioner authorisation (s 14BA(8)).

Ministerial duties and limits. The Minister may give written directions to the Corporation and Commissioner regarding performance of functions and the Corporation and Commissioner must give effect to such directions (s 18B(1)-(2)). However, the Minister must not direct in relation to a particular person, application, complaint or investigation carried out under section 14A(1)(b) or (ea) (s 18B(3)). Directions must be tabled before each House of Parliament within 14 sitting days and included in the Corporation’s annual report (s 18B(4)).

Information and confidentiality duties. Persons specified in s 18(2), which include the Commissioner, appointed members, employees and delegates, must not record, disclose or make use of information obtained in the course of duty except for statutory functions, as required by law, with the written consent of the subject, or in prescribed circumstances (s 18(1)-(2)). Penalty for breach is a fine of $10 000 (s 18(1)-(2)). The Commissioner may refuse to disclose information that might identify a complainant (s 18AA(2)). The Minister has entitlement to information in the Corporation’s and Commissioner’s possession that relates to their functions, and may request documents and copies, subject to the protections in s 18C(5)-(6) regarding identifying individuals (s 18C(2)-(4)).

Rights of parties in ADR. Parties to a small business dispute may request ADR (s 15D). The Commissioner must decide whether to recommend further advice, commence ADR or refuse (s 15E(2)). Parties may be represented by lawyers; the facilitator may meet privately with parties without legal representatives present (s 15H(1)). Costs of ADR are to be determined by the Commissioner and are payable by parties in equal shares unless the Commissioner approves otherwise; costs recoverable as a debt by the Commissioner (s 15G(1)-(3)). Evidence of ADR proceedings is inadmissible in courts or tribunals unless parties consent (s 15I(1)-(2)).

Financial duties and rights. The Small Business Development Corporation Account holds monies received by or for the Corporation and Commissioner and monies appropriated by Parliament (s 19(1)-(2)). Funds may be applied to administration costs, services and facilities, and to pay financial assistance and grants under s 11AA(1) (s 19(3)(a)-(ba)). The Financial Management Act 2006 and Auditor General Act 2006 apply to the Corporation’s financial administration and audit obligations (s 21).

Employment and delegation duties. The Corporation may employ staff and determine their terms (s 15(1)-(3)). Part 3 of the Public Sector Management Act does not apply to those employees (s 15(4)), but SES provisions prevail where applicable (s 16). The Corporation may delegate functions via written instrument and retain accountability; delegates must not subdelegate unless expressly authorised (s 11A(1)-(5)). The Commissioner may delegate functions to employees in writing, but those delegates cannot further delegate (s 14C(1)-(4)).

Together these duties and rights create a framework balancing operational freedom for the Corporation and Commissioner with specific statutory constraints on ministerial interference, protections for complainants, penalties for non‑compliance with investigatory requests, and financial accountability under the FMA and Auditor General Act.

The Act uses monetary penalties, internal authorisation requirements for prosecution, and administrative controls to enforce compliance with investigatory and confidentiality obligations. It also supplies mechanisms for cost recovery and for ministerial oversight as non‑punitive enforcement levers.

Monetary penalties for investigatory non‑compliance. Section 14BA creates enforceable obligations for persons who are asked by the Commissioner to produce documents, things or information as part of an investigation (s 14BA(1)-(4)). Three categories of criminalised conduct are specified with the same monetary penalty: failing without reasonable excuse to comply with a request (s 14BA(5)); providing documents, things or information known to be false or misleading in a material particular or omitting information that renders the material misleading (s 14BA(6)); and altering, suppressing or destroying requested documents or things (s 14BA(7)). Each offence carries a fine of $20 000. These penalties create a legal compulsion to preserve and produce relevant investigation materials and to ensure accuracy of any material supplied to the Commissioner.

Prosecution authorisation. Section 14BA(8) requires that prosecution for an offence under s 14BA may not be commenced without the Commissioner’s authorisation. That internal gate centralises the decision to prosecute alleged breaches of investigatory obligations within the Commissioner’s office. It limits third‑party or external prosecutorial initiations for those specific offences.

Confidentiality sanctions. Officials and others covered by s 18(2) are prohibited from recording, disclosing or using information obtained in the course of duty except for specified purposes. Breach of this restriction is an offence carrying a fine of $10 000 (s 18(1)-(2)). The covered population is broad: the Commissioner, appointed members, employees, and delegates (s 18(2)). The penalty is lower than the investigatory penalties but still financially significant and directly targeted at protecting investigation and complaint confidentiality.

ADR evidentiary protection. ADR materials are protected from admissibility in courts, tribunals or other bodies unless the parties agree (s 15I). This is an evidentiary exclusion rather than a criminal sanction, but it materially enforces the confidentiality of ADR and affects the enforcement ecology by making ADR communications legally insulated from later litigation, unless parties consensually admit them.

Ministerial directions and parliamentary scrutiny. The Minister’s directions to the Corporation and Commissioner are enforceable in that the Corporation and Commissioner “are to give effect to” any such directions (s 18B(1)-(2)). However, the Act curtails directions in relation to particular persons, applications, complaints or investigations (s 18B(3)). Directions must be laid before each House of Parliament within 14 sitting days and included in the Corporation’s annual report (s 18B(4)), providing a transparency pathway and parliamentary oversight as an enforcement and accountability mechanism.

Fee recovery and debt enforcement. The Corporation and Commissioner may raise fees or charges for services (s 11(3)(a); s 14B). ADR costs determined under s 15G are recoverable as a debt due to the Commissioner and enforceable in a court of competent jurisdiction (s 15G(3)). This gives the Commissioner a civil enforcement tool to recover ADR costs.

Financial audit and account enforcement. The Corporation’s finances are subject to the Financial Management Act 2006 and the Auditor General Act 2006 (s 21). These statutes provide statutory audit, reporting and remedial pathways that can lead to administrative consequences for financial non‑compliance, though the Act does not include criminal penalties under s 19 beyond the ordinary FMA/Auditor General Act regimes.

Administrative termination powers. The Minister may terminate an appointed member for inability, inefficiency or misbehaviour (s 5(4)). The board’s quorum and voting rules (s 8) and the corporation’s delegation powers (s 11A) regulate internal accountability and operational continuity.

Practical enforcement features to note. First, the high monetary penalties for investigatory non‑compliance ($20 000) and the separate confidentiality penalty ($10 000) create significant financial risk for persons asked to produce material. Second, prosecution for the s 14BA offences is not automatic: it requires Commissioner authorisation (s 14BA(8)), concentrating enforcement discretion. Third, ADR confidentiality and inadmissibility provide a non‑criminal but potent enforcement of settlement privacy, with the Commissioner able to determine ADR costs and recover them as debt (s 15G). Fourth, ministerial directions and required parliamentary tabling (s 18B(4)) create a political‑administrative enforcement and transparency loop rather than criminal sanction.

Together the statutory penalties, authorisation rules and administrative enforcement mechanisms give the Commissioner and Corporation a mix of coercive and non‑coercive enforcement tools, with a notable emphasis on monetary penalties for investigatory compliance and statutory protection for procedural confidentiality.

The Act expressly references and integrates with a number of other statutes, which affects jurisdictional boundaries, employment arrangements, financial processes and intergovernmental coordination. The following notes identify the key legal interaction points the Act itself articulates.

Public Sector Management Act 1994. The Commissioner is the chief executive officer of the Corporation appointed under the Public Sector Management Act 1994 Part 3 (s 13). Staff employed by the Corporation are generally not subject to Part 3 of the Public Sector Management Act (s 15(4)), but if a person employed under s 15 is a member of the Senior Executive Service, then the Public Sector Management Act provisions prevail over conflicting provisions in this Act (s 16). The Act therefore creates a hybrid employment model: the Corporation’s staff can be employed under its own terms but senior executives remain within the broader public sector management framework.

Financial Management Act 2006 and Auditor General Act 2006. The Act designates the Small Business Development Corporation Account as an agency special purpose account under the FMA (s 19(1)), and s 21 explicitly applies the financial administration, audit and reporting requirements of the FMA and the Auditor General Act to the Corporation. The Commissioner’s and Corporation’s operations are treated as services under FMA s 52 and operations under Part 5 of that Act (s 14). This subjects the Corporation to standard financial controls, appropriation rules and audit scrutiny applicable to statutory authorities.

Corporations Act 2001 (Cth) and Commonwealth regulators. The definition of “small business” references a “proprietary company within the meaning of the Corporations Act 2001” (s 3(1)), importing Commonwealth corporate definitions into the Act’s eligibility framework. The definition of “government entity” includes Commonwealth regulators such as the ACCC and ASIC by express reference (s 3(1)(e)-(f)), which establishes a statutory coordination nexus between the Corporation/Commissioner and Commonwealth agencies for investigatory or reporting purposes (s 14A(1)(eb)).

Common law and evidentiary rules. Section 15I excludes from admissibility into courts, tribunals or bodies anything lawfully said or done in the course of ADR unless the parties consent. That statutory evidentiary rule modifies how ADR proceedings interact with ordinary civil litigation evidence regimes by creating a statutory exception to admissibility, reinforcing ADR confidentiality and preventing automatic transfer of ADR content into formal litigation without party consent.

Other statutory complaint/ombudsman frameworks. The definition of “government entity” also includes other ombudsmen or equivalent offices under written law and the Australian Small Business and Family Enterprise Ombudsman (s 3(1)(c)). The Commissioner must avoid duplicating the operations of any department performing overlapping functions and cooperate with departments to perform investigatory functions (s 14A(3)). These provisions signal an expectation of inter‑agency coordination and limit duplication among statutory complaint mechanisms.

Criminal law and prosecution authorities. The Act’s penalties (s 14BA; s 18) interact with general criminal procedure and prosecutorial frameworks. Notably, s 14BA(8) requires Commissioner authorisation before prosecuting offences under s 14BA. That requirement creates a statutory constraint on how these specific offences proceed into criminal enforcement, intersecting with general prosecutorial discretion and the Criminal Procedure Act pathways.

Industrial relations statutes. The Act allows the Corporation to determine terms and conditions of staff employed under s 15, subject to any relevant award or industrial agreement under the Industrial Relations Act 1979 (s 15(3)). The notes indicate references under the Interpretation Act 1984 to changes in industrial relations statute names. Practically, employment terms must be consistent with industrial awards and agreements applicable in Western Australia.

Regulations and orders. The Governor may declare other business undertakings to be small businesses by Order in Council (s 3(2)). The Act also allows the Governor to make regulations as necessary (s 24). Those instruments can expand or contract the class of entities within the Act and fill procedural gaps.

Parliamentary oversight. The Minister’s directions to the Corporation or Commissioner must be laid before each House within 14 sitting days (s 18B(4)(a)), which inserts a parliamentary transparency obligation. The Minister’s power to access information (s 18C) is qualified by identity protections (s 18C(5)-(6)).

Taken together, the Act is not stand‑alone. It imports definitions and administrative structures from Commonwealth companies and regulators, locates the Corporation within the FMA/Auditor General audit regime, places Commissioners within public sector employment frameworks, and carves interaction rules with other public agencies and complaint mechanisms to reduce duplication. Practitioners must therefore consider these cross‑references when advising on compliance, particularly where Commonwealth regulatory areas, evidentiary questions, financial audit, or prosecutorial processes are implicated.

The Act has been amended several times since its enactment in 1983. The compilation table and notes included in the statute summarise the sequence of amendments and the insertion or repeal of particular provisions. The following recitation identifies the key amendments that materially changed the Act’s structure or powers, as recorded in the Act itself.

Initial enactment and early changes. The Small Business Development Corporation Act 1983 received assent on 5 December 1983 and commenced on 1 January 1984 (compilation table). Subsequent amendments in the 1980s and 1990s adjusted administrative and governance provisions, and the Act was reprinted multiple times (compilation table).

1998 and 2001 amendments. The Small Business Development Corporation Amendment Act 1998 (No. 5 of 1998) made changes cited in the defined terms note and in s 11A dealing with delegation (s 11A inserted No. 5 of 1998). The Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001) updated cross‑references and definitions to align with the Commonwealth Corporations Act 2001 (compilation table).

2005-2010 amendments. The Planning and Development (Consequential and Transitional Provisions) Act 2005 updated the definition of “metropolitan region” used in board composition (s 5(1A)). The Acts Amendment (Bankruptcy) Act 2009 updated s 5(5)(a) referencing bankruptcy and insolvency. The Public Sector Reform Act 2010 made changes to align public sector employment references.

2011 omnibus reform. The Small Business and Retail Shop Legislation Amendment Act 2011 (No. 20 of 2011) made a series of structural changes, including inserting Part 3 provisions creating the Commissioner role and ADR machinery, recasting governance provisions (board composition, ex officio Commissioner membership), and changing employment and administrative rules. Many of the current Part 3 provisions, the Commissioner definition (s 13), ADR Division (s 15A-15I), and staff provisions (s 15-17) were inserted by the 2011 Act (compilation table; various section notes).

2020 amendments. The Small Business Development Corporation Amendment Act 2020 (No. 12 of 2020) introduced significant investigatory powers for the Commissioner, including s 14BA which authorises the Commissioner to request documents, things and information for investigations and prescribes penalties for non‑compliance, falsity and destruction (s 14BA inserted No. 12 of 2020 s 6). The 2020 Act also added the requirement for the Minister to review the operation and effectiveness of the 2020 amendments, with particular regard to s 14BA, and to prepare a report after two years (s 24A inserted No. 12 of 2020 s 14). The Act added the requirement that the Commissioner provide persons with an opportunity to make submissions before adverse information is included in reports (s 14BB inserted No. 12 of 2020 s 6) and added protections for complainant identity (s 18AA inserted No. 12 of 2020 s 12).

2022 amendments (COVID‑19 Response). The Small Business Development Corporation Amendment (COVID‑19 Response) Act 2022 (No. 4 of 2022) inserted s 11AA, expressly authorising the Corporation to provide financial assistance, grants and operational funding to small businesses and to third parties working with them, and requires publication of guidelines on the Corporation’s website (s 11AA inserted No. 4 of 2022 s 6). The long title was updated in 2022 to include empowerment to give financial assistance and to provide ADR under other Acts (Long title inserted No. 4 of 2022 s 4). Section 19 was amended to include a specific head for payment of financial assistance and operational funding under s 11AA(1) (s 19 amended No. 4 of 2022 s 7).

Other amendments and repeals. Across the Act’s life sections have been deleted and replaced as the statutory architecture changed. For example, s 10 and earlier provisions were deleted and parts restructured in 2011 (various deletion notes). The compilation table lists Acts that have impacted the statute over time, including Finance and public service reform Acts (compilation table).

Statutory review obligation. The 2020 amendment introduced a mandatory review obligation on the Minister to examine the operation of the 2020 amendments, particularly s 14BA, by the second anniversary of their commencement, and to table the report within 12 months after the second anniversary (s 24A). This creates a legislated mechanism to evaluate how the investigatory powers operate in practice.

In short, the Act has evolved from a primarily advisory and promotional statutory agency into a body with formal complaint intake, investigatory powers, ADR services and grantmaking capacity. The 2011, 2020 and 2022 amendments are the most recent structural inflexions recorded in the statute itself. Practitioners should note the review requirement (s 24A) as a statutory milestone likely to generate executive commentary and possible further legislative change following its reporting.

The Act’s text and the included compilation table do not record any judicial decisions or litigation history. The Act itself contains no list of cases, and no specific judicial interpretations or litigation outcomes are included in the statute’s notes or compilation materials provided.

For practice purposes, absence of litigation history in the statute does not mean the Act has not been the subject of judicial or tribunal consideration. Parties and advisers should search Western Australian courts, tribunals and administrative decision databases for decisions applying the Act, particularly in these likely areas:

• judicial review of administrative action by the Commissioner or Corporation (procedural fairness or jurisdictional error claims);
• disputes over the scope of the Commissioner’s investigatory powers under s 14BA (compliance, reasonableness of requests, statutory limits);
• challenges relating to the admissibility of ADR communications under s 15I in subsequent litigation;
• cases concerning confidentiality obligations under s 18 and s 18AA, including claims for injunctive relief or damages where disclosure occurs;
• litigation over grant decisions or the application of s 11AA, including contract disputes arising from financial assistance arrangements (s 11AA(1)(c));
• disputes over Ministerial directions and whether a direction impermissibly concerns a particular person, application or investigation in breach of s 18B(3).

Because the Act imposes penalties for false and misleading information and non‑compliance with Commissioner requests (s 14BA) and confidentiality obligations (s 18), litigation may arise in circumstances when enforcement is pursued. The Act’s requirement that prosecutions under s 14BA require Commissioner authorisation (s 14BA(8)) is itself a procedural factor that may appear in litigation records.

Recommended steps for practitioners. Conduct targeted searches in:

• Western Australian Supreme Court and District Court decisions;
• administrative law decisions involving the Commissioner or Corporation;
• Tribunal decisions if ADR or administrative remedies feed into tribunal processes;
• published decisions or determinations involving public sector bodies, given the Act’s investigatory remit into public sector action affecting small business (s 11(2)(fb); s 14A(1)(ea)).

As the Act contains a statutory review of the 2020 amendments (s 24A), any review report and subsequent parliamentary materials may reference litigation or complaints data that sheds light on operational experience. Practitioners should also check parliamentary reports, the Corporation’s annual reports and the Auditor General’s reports for operational and compliance information that may relate to litigation risk.

This section flags statutory features that commonly produce compliance surprises, operational risk, or require careful handling. Each is grounded in the Act’s text.

1. Narrow statutory definition of “small business”. The statutory definition at s 3(1) is restrictive: small business must be wholly owned and operated by individuals in partnership or by a proprietary company, have a relatively small market share, be personally managed by owners/directors, and not be a subsidiary or part of a larger enterprise. If a client is a member of a corporate group, or an externally managed proprietary company, they may be excluded from statutory benefits unless the Governor declares otherwise under s 3(2). Do not assume all micro or small enterprises qualify.

2. Governor’s Order in Council mechanism. The Governor can declare other undertakings to be small businesses (s 3(2)). That is discretionary executive lawmaking, not an administrative application process. Where eligibility is critical, confirm whether the Governor has exercised that power in respect of the entity type in question.

3. Commissioner as ex officio board member and CEO. The Commissioner is both the chief executive officer under the Public Sector Management Act and an ex officio board member (s 13; s 5(1)(c)), which concentrates executive and board roles. That structure may raise conflict‑management questions in governance or challenge perceptions of board independence. The Act does not require separation of CEO and chair roles.

4. High monetary penalties for investigatory non‑compliance and falsity. Failure to comply with a Commissioner’s request for documents or information, providing false or misleading material, or destroying requested materials attracts a $20 000 fine per s 14BA(5)-(7). Those penalties are significant and apply to both private and public actors subject to an investigation. Ensure document preservation protocols and legal oversight when responding.

5. Commissioner authorisation required for prosecutions. Section 14BA(8) requires Commissioner authorisation before prosecution for s 14BA offences may commence. That centralises enforcement discretion and may delay or limit third‑party reporting resulting in criminal proceedings. Litigants should plan around internal authorisation processes and possible administrative considerations.

6. Confidentiality obligations with criminal penalty apply broadly. The prohibition against disclosure or use of information obtained in the course of duty (s 18) applies to the Commissioner, appointed members, employees and delegates and carries a $10 000 fine. Be careful with internal communications, third‑party consultants and outsourced services. Written consents, prescribed circumstances or statutory function exceptions are the only lawful disclosure routes.

7. Complainant identity protection. Section 18AA permits the Commissioner to refuse to disclose information that might identify a complainant. This protection can conflict with other transparency or disclosure obligations, and may frustrate third parties seeking particulars. In investigations involving multiple interested parties, expect tension over identity protections.

8. ADR evidentiary exclusion. Evidence of anything said or done in ADR is inadmissible in court or tribunal proceedings unless the parties consent (s 15I). This is useful for candid settlement dialogue, but it can create discontinuities if parties later litigate related issues. Parties should preserve contemporaneous documents outside ADR if they may be needed later.

9. ADR costs default split and recoverability. ADR costs are payable by the parties in equal shares unless the Commissioner approves alternate arrangements (s 15G(2)). The Commissioner can recover costs as a debt in court (s 15G(3)). Parties unfamiliar with ADR fees may face unexpected cost exposure if a facilitator or administrative fee is levied.

10. Ministerial directions are broad but limited as to particulars. The Minister can give written directions to the Corporation and Commissioner which must be complied with (s 18B(1)-(2)). However, directions must not concern a particular person, application, complaint or investigation (s 18B(3)). The line between “in relation to a particular matter” and a prohibited “particular investigation” may be operationally thin; legal advice may be required where Ministerial directions are at issue.

11. Staff employment outside core public service rules. The Corporation can employ staff outside Part 3 of the Public Sector Management Act (s 15(4)), which may create different industrial relations and performance management regimes than typical public sector offices. However, Senior Executive Service provisions prevail where applicable (s 16). HR, procurement and contractor arrangements should be reviewed for compliance with industrial and public finance law.

12. Delegation traps. The Corporation may delegate functions to the Commissioner, members, staff or other persons with Minister approval (s 11A). Delegates are treated as performing the Corporation’s functions (s 11A(4)), and delegates cannot subdelegate unless expressly authorised (s 11A(3)). Ensure delegation instruments are in writing and specifically authorise any subdelegation needed.

13. Publication of grant guidelines is required. The Corporation must publish guidelines for assistance to third parties and must make guidelines for assistance to small businesses (s 11AA(2)-(5)). Failure to follow published guidelines or to rely on unpublished selection criteria may give rise to challenges.

14. Financial and audit oversight. The Corporation’s account is subject to FMA and Auditor General oversight (s 19; s 21). Grants and financial assistance will be audited and must be recorded against the specified heads in s 19(3). Grant recipients should expect contractual and audit visibility.

15. Review timetable for 2020 amendments. The Minister must review the operation and effectiveness of the 2020 amendments with particular regard to s 14BA and table a report after two years (s 24A). This statutory review may precipitate administrative changes or further legislative amendment, particularly around investigatory powers.

Practitioners should map these “gotchas” to operational checklists: confirm small business status early, maintain defensible document retention and response processes for Commissioner requests, structure ADR participation strategy to account for evidentiary insulation, ensure grant applicants and recipients know published guidelines and audit expectations, and monitor for ministerial directions and statutory review outputs.

This section translates statutory obligations into practical compliance actions for clients, advisers and administrators. Each suggested action cites the controlling provision.

1. Confirm eligibility and status before engagement (s 3(1)-(2)). Verify that the business meets the statutory definition of “small business” in s 3(1). If the client is a proprietary company but part of a larger group, or managed by external directors, check whether the Governor has made an Order in Council relevant to the business class (s 3(2)). If eligibility for grants under s 11AA is sought, ensure the business or intermediary fits the published guidelines.

2. Maintain a document preservation and legal response plan for Commissioner requests (s 14BA). Where the Commissioner makes a request under s 14BA(1), respond within the specified timeframe, verify accuracy of information (s 14BA(4)), and do not destroy, alter or suppress requested materials (s 14BA(7)). The $20 000 penalties for non‑compliance, false statements and destruction (s 14BA(5)-(7)) mean clients should adopt a “legal hold” approach on relevant records and involve counsel in producing sworn or verified materials if required.

3. Manage statements and statutory declarations carefully (s 14BA(4)-(6)). The Commissioner may require production verified by statutory declaration. Advise clients that providing false or misleading information to the Commissioner attracts a $20 000 fine (s 14BA(6)). Use counsel for verification where accuracy concerns exist.

4. Understand prosecution authorisation paths (s 14BA(8)). Prosecutions for s 14BA offences require Commissioner authorisation. If a client faces potential prosecution, determine whether authorisation has been sought, and engage in early dialogue with the Commissioner’s office to resolve evidentiary or administrative issues.

5. Protect complainant anonymity where desired (s 18AA). If acting for a complainant, request the Commissioner to refuse disclosure of identifying information where appropriate (s 18AA(2)). Understand that the Commissioner has discretion to refuse disclosure but is not required to do so.

6. Observe confidentiality rules for officials and contractors (s 18). For personnel covered by s 18(2) (Commissioner, appointed members, employees, delegates), implement information security and training to ensure compliance with the prohibition on unauthorised recording, disclosure or use of information obtained in the course of duty (s 18(1)). Written consents and prescribed circumstances are exceptions; document any authorisations.

7. If participating in ADR, agree cost allocation upfront and document consents (s 15G(1)-(3); s 15I). ADR costs are determined by the Commissioner and default to equal shares. Parties should negotiate and record arrangements for fees and whether ADR communications may be used in later proceedings (s 15I). If legal representation will attend, plan for facilitator discretion to meet privately with parties (s 15H(1)).

8. If seeking or administering grants, follow the Corporation’s guidelines and publication obligations (s 11AA(2)-(5)). The Corporation must publish guidelines for grants and assistance to non‑government organisations (s 11AA(3)-(5)). Grant applicants should obtain and rely upon the published guidelines and expect contractual arrangements under s 11AA(1)(c). Retain copies of published guidelines as part of the compliance file.

9. Set up internal controls for ministerial direction and information requests (s 18B; s 18C). The Minister may direct the Corporation or Commissioner but not in relation to a particular person, application, complaint or investigation (s 18B(3)). Where the Minister requests information under s 18C, the Corporation must provide it (s 18C(3)-(4)), but protections for identity apply (s 18C(5)). Ensure internal processes are in place to handle ministerial requests, perform redactions consistent with s 18C(5), and to record directions for parliamentary tabling (s 18B(4)).

10. Comply with financial management and audit requirements (s 19; s 21). Funds are held in the Small Business Development Corporation Account and are subject to the FMA and Auditor General Act (s 19(1); s 21). For grant recipients, expect contractual reporting obligations, audits and record retention. For the Corporation, maintain FMA‑compliant accounting, receipts and reporting systems.

11. Draft and review delegation instruments carefully (s 11A; s 14C). Delegations must be in writing (s 11A(1); s 14C(2)). Delegates must act within the instrument’s terms and delegates cannot subdelegate unless expressly authorised (s 11A(3); s 14C(3)). Ensure delegation instruments clearly state the scope, limitations and any subdelegation permissions.

12. Staff and industrial compliance (s 15). If the Corporation employs staff, ensure employment terms comply with relevant awards or industrial agreements under the Industrial Relations Act and that contract terms are documented (s 15(3)-(5)). For SES staff, reconcile arrangements with the Public Sector Management Act (s 16).

13. Prepare for the 2020 amendments review and adaptability (s 24A). The Minister must review the 2020 amendments with particular regard to s 14BA and table a report on the review (s 24A). Monitor the Minister’s review and any administrative changes that may follow, especially if you or clients are frequent subjects of investigations.

14. Record governance decisions and meeting minutes (s 8(5)). The board must keep accurate minutes of proceedings (s 8(5)). For corporate governance and potential litigation or audit, maintain full and contemporaneous minutes and attendance records, noting leave of absence approvals and any ministerial directives given.

15. Legal representation strategy. In ADR and in responses to investigations, involve external counsel early to manage statutory obligations, penalties, and evidentiary consequences. Lawyers should prepare to advise on admissibility issues under s 15I, on statutory obligations under s 14BA and s 18, and on any ministerial direction or review implications.

This compliance checklist converts statutory obligations into specific operational tasks. It is intended as a practical starting point; bespoke advice will be required where factual complexity, commercial sensitivity, or cross‑jurisdictional regulatory overlap arises.