Small Business Commissioner (SA) 

Act: Small Business Commission Act 2011 (SA).¹

Established: A Commission constituted by one office-holder — and the Act has been renamed. The governing Act is now the **Small Business Commission Act 2011 (SA)*, not the Small Business Commissioner Act 2011*; searching under the old title will not find the current consolidation. Under it, two things exist and it is worth keeping them apart. Section 3A(1) establishes the Small Business Commission, and s 3A(2) provides that the Commission "is to be constituted by the Commissioner, and is an agency of the Crown". Section 4(1) then says "There will be a Small Business Commissioner", appointed by the Governor (s 4(2)). So the Commission is a body whose entire membership is one statutory office-holder, and it is an agency of the Crown rather than a body corporate.

Purpose: The Commissioner provides low-cost mediation for disputes involving small businesses — commonly retail lease and franchise disputes — and advocates for small business interests in government policy. It is a dispute-resolution and advocacy office, not a court or tribunal.

Where the authority sits

The functions in s 5(1) centre on dispute resolution and support: to facilitate the resolution of disputes involving small businesses through alternative dispute resolution, and to support small business owners in their dealings with other businesses (s 5(1)(a) and (b)). They also include administering Part 3A (industry codes) and Part 3B (motor vehicle insurers and repairers) of the Fair Trading Act 1987 and the Australian Consumer Law (SA) where responsibility is assigned to the Commission, and monitoring, investigating and advising the Minister about non-compliance with industry codes and market practices that may adversely affect small businesses (s 5(1)(f) to (h)). Mediation is the mechanism, which is why the Commission's involvement in a fact pattern is usually voluntary and usually precedes, rather than replaces, a proceeding.

What it does not do

The Commissioner cannot make a binding determination the way a court or the South Australian Civil and Administrative Tribunal can. Mediation is voluntary; if it fails, a party must still pursue the matter through litigation or another appropriate forum.

Is it a prosecuting authority?

Not confirmed either way, and do not reason from the fact that it does not adjudicate. Those are different questions: a body that determines nothing may still prosecute, and this one has something to prosecute. Section 12(1) lets the Commission require a person to give it information by written notice, and s 12(2) makes failure to comply an offence with a maximum penalty of $20,000 and an expiation fee of $1,200. (Section 12(3) preserves the privilege against self-incrimination and legal professional privilege.)

What the Act does not do is say who prosecutes that offence. It confers no express prosecution function on the Commission and contains no "proceedings for offences" provision, so the answer is left to the general law rather than settled on the face of the statute. State it that way: there is an offence, the Act is silent on the prosecutor, and the Commission's not adjudicating tells you nothing about it.

What is clear is the adjudication point: a dispute the Commission cannot resolve goes to a court or tribunal, not to the Commission for determination.

How it relates to the other SA bodies

Where a small business dispute cannot be mediated, the appropriate next step depends on subject matter, and the retail lease route is the one most often got wrong. It is not SACAT: Division 3 of Part 9 of the Retail and Commercial Leases Act 1995 (SA) is headed "Jurisdiction of the Magistrates Court", and s 68 lets a party or former party to a retail shop lease apply to the Magistrates Court for orders restraining a breach, compelling compliance, ordering payment or compensation, relieving against a lease obligation, reinstating forfeited rights, or doing anything else necessary to resolve the dispute. Other commercial disputes go to the courts in the ordinary way. The Commissioner's role ends at facilitating a voluntary resolution.

Self-check

• Have I described the Commissioner's role as mediation and advocacy, not adjudication?
• Have I sent a retail lease dispute to the Magistrates Court under s 68 rather than to SACAT, and identified that an unresolved dispute proceeds elsewhere, not to a binding Commissioner decision?