Bruce Billson (Dunkley, Liberal Party, Minister for Small Business) Share this | Hansard source

I am thrilled to sum up from some really eloquent contributions from both sides of the House on the Australian Small Business and Family Enterprise Ombudsman Bill 2015 and the Australian Small Business and Family Enterprise Ombudsman (Consequential and Transitional Provisions) Bill 2015. I was particularly pleased that Liberal and National Party members were very engaged with this topic. They have been so, right the way through from the policy formulation stage through to the preparation of our election commitments. I am thrilled this is delivering on those commitments. It is the foundation of those more than 20 election commitments that we are faithfully and sure-footedly implementing. We have then built upon that platform with the outstanding jobs and small business package in the budget. These are the commitments that we took to the electorate, and we are implementing them.

To recap for those who have joined this discussion. This Australian Small Business and Family Enterprise Ombudsman Bill 2015 will establish the position of ombudsman to assist the small business and family enterprise sector. The ombudsman will have two key functions: an advocacy function and an assistance function. That assistance function focused on two key areas: the reliable and timely access to information and also facilitation of early dispute resolutions. We know when a small business is involved in a commercial dispute with a big business, no matter what the virtue of the case, far too often it is the small business that loses out. Our ambition is to resolve those disputes fairly and equitably and get people back to business, get them back to engaging in seeking to delight customers and providing that enormous boost to the economy that so many colleagues in this chamber have spoken about.

I thank those members who covered a range of very clear and easily understood examples about why this initiative, a first-time initiative for our country that is being implemented by the Abbott coalition government, is so necessary. I also want to thank the opposition and particularly the member for Oxley for his comments and for his indication that the opposition will also support these bills. We welcome that support. I am happy to and it is my duty to clarify some of the questions and matters of interest that were raised during the debate and, with your agreement, I would like to do that.

The member for Oxley raised some concerns about the independence and the impartiality of the ombudsman. The government agrees that the ombudsman needs to be and be seen to be independent. That is why we are establishing the ombudsman as a statutory position appointed by the Governor-General. This stands in quite stark contrast to the current nearest, neatest correct entry to this role: the very capable Australian Small Business Commissioner. Mr Brennan is doing some excellent work, but he is actually engaged as a contractor. So it is quite a different type of engagement and footing for his work. As I was saying, he is doing a good job independently representing small business interests but without the backing of a statutory appointment. The statutory appointment process offers the clear, unequivocal independence that an ombudsman of this kind truly requires, and that is why we have gone down that pathway with this bill.

The government also agrees that impartiality is particularly important with respect to the assistance function. We have prepared these bills with these requirements of independence and impartiality in mind. Whilst appropriately acknowledging that the ombudsman's functions and powers are necessarily limited by the Commonwealth Constitution, this does provide some constraints but shapes the way in which the ombudsman will interact with state ministers and state agencies. Part 4 of the Australian Small Business and Family Enterprise Ombudsman Bill 2015 outlines the ombudsman's assistance function. This will allow the ombudsman to transfer requests for assistance to other officials under whose jurisdiction those requests fall or to refer the request to the ombudsman's own outsourced alternative dispute resolution service where the subject matter of the dispute comes under the appropriate head of power under the Commonwealth Constitution. This is a fairly simple idea that the Constitution sets up the reach and scope of the Commonwealth's powers and of course through cases like Williams et al we need to stay within those boundaries to be constitutionally sound, and that is what this bill will do.

There was some comment on clause 67 subclause (2)(b)(c) of the main bill, which precludes the ombudsman from dealing with complaints concerning the actions of Commonwealth state and territory ministers and state and territory agencies. In relation to requests for assistance involving decisions of Commonwealth ministers, the bill rightly and understandably precludes the ombudsman from being asked to review the actions taken by a minister in carrying out the agenda of the government of the day. Actions taken by Commonwealth agencies and officers could be investigated by this ombudsman. To fully illustrate this, a small business or family enterprise could be assisted by the ombudsman if it were in dispute with a Commonwealth government department or agency. In relation to requests for assistance regarding state and territory ministers and agencies, it would be inappropriate for any Commonwealth official such as the ombudsman to take action in response to such requests. Such requests would be referred to relevant state and territory officials. That is keeping the jurisdictional reach in mind and making sure those officials dealing with state and territory concerns or requests for assistance are the ones responding to such requests.

In relation to clause 69 subclause (1), the requirement of the ombudsman to refer requests to other Commonwealth state and territory agencies where those other agencies can more conveniently or effectively deal with the request is intended to prevent the duplication of services or forum shopping. We are not wanting to create a situation where a small business or family enterprise with a concern can hop around a range of agencies for assistance and support services. Our role with this ombudsman is to land that concern or request where it is most appropriate and where the agency that is conveniently and most effectively able to deal with the request is provided the opportunity to do so.

The member for Ryan alluded to how pointless it would be to duplicate the work of existing officials such as the state small business commissioners, and this is the idea behind that provision. Preventing forum shopping means that businesses will be directed to receive assistance from officials who can deal with their complaints and not go from one official to another without matters being resolved. The member for Ryan correctly noted this when she commented on the role of the ombudsman and how it will complement the roles of existing officials and not duplicate them. Duplication would be a waste of public money and add another source of frustration and confusion for small business and family enterprise people and would not advance their interests anyway.

We have framed this legislation in such a way that the ombudsman will work cooperatively with those other officials and refer all matters which fall within those officials remit to them. To facilitate this and to ensure that the ombudsman can work cooperatively with other officials, the consequential legislative amendments are part of this cognate package. These will be required to allow the transfer of matters from the Commonwealth Ombudsman to the Australian Small Business and Family Enterprise Ombudsman.

The comprehensive policy formulation processes have helped the government settle on an appropriate alternative dispute resolution model. This model recognises that the Commonwealth Constitution reserves judicial decisions to the Federal Court system and that low-cost alternative dispute resolution outside the court system represents an effective and practical access-to-justice remedy for small business and family enterprises. Binding decisions have a judicial character, and the ombudsman will therefore not make binding decisions, as the ombudsman will not be part of the Federal Court system. Importantly, it is worth highlighting that seeking the assistance of the ombudsman will not curtail the rights of people to take their matters to court. This is about aiding and assisting early dispute resolution, not about displacing a judicial conclusion where other mechanisms are more appropriate.

The member for Oxley mentioned the termination clause relating to the ombudsman. This clause is typical of termination clauses in other Commonwealth legislation, and there is nothing unusual about this clause. The government wants the ombudsman to be the independent advocate that we have long envisaged. This clause neither limits the independent role of the ombudsman nor compels the ombudsman to curry favour with the government, since the ombudsman's appointment may only be terminated in very specific circumstances.

There were some questions regarding statutory immunity. It would be most unusual for a Commonwealth official to be granted a blanket immunity. Commonwealth officials should be accountable for their actions. Where the ombudsman acts within the boundaries of the ombudsman's remit under the legislation we are discussing today, the ombudsman would have no need for immunity. It would not be appropriate or even possible to give an official immunity to act outside that official's remit.

Part 3 of the Australian Small Business and Family Enterprise Ombudsman Bill outlines the ombudsman's advocacy function. This will grant the ombudsman power to conduct inquiries, to advocate on behalf of small businesses and family enterprises to government. This can be on the ombudsman's own initiative or on referral from the minister. The ombudsman may require a person or entity to produce information or documents for the purposes of an inquiry. Noncompliance with such requests may attract a penalty.

Mr Albanese interjecting—

Mr Fitzgibbon interjecting—

I thank the opposition for their encouragement.

Another area of appropriate oversight concerns the publication of reports and advice prepared by the ombudsman. This was a topic of some discussion in the debate. The Australian Small Business and Family Enterprise Ombudsman Bill allows the minister to redact or decline to publish reports and advice produced by the ombudsman. It is important to stress that this power simply seeks to prevent information being released into the public domain where it is not in the public interest for such information to be released. We want the ombudsman to prepare the robust advice that government needs to hear, but we also want everyone, particularly small businesses and family enterprises, to be confident that any information they provide during an ombudsman's investigation or inquiry will not necessarily be released into the public domain.

Again, the government welcomes the opposition's support, and I trust that these points will provide the clarification requested during debate and the careful consideration we have given to each of those matters throughout the consultation process. I want to particularly thank the officials, who have been very diligent in working through the implementation of this election commitment and have consolidated a very effective, collaborative and consultative network in working up the provisions that are here today. I sincerely thank them for that work. The ombudsman's legislation fulfils an important election commitment and shows the commitment of the Abbott government to small businesses and family enterprises. I commend these bills to the House.

Question agreed to.

Bill read a second time.

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