Originally published in The Canberra Times

By Bruce Billson

Justice. The word itself carries weight. It has responsibility. It implies things will be fair, and if wronged, justice will serve, and things will be right.

But for many small businesses, access to justice remains out of reach.

For small businesses facing harm or difficulty remedying a situation that impedes their economic interests and legal rights, there are still too many barriers to accessing justice. Creating a small business ecosystem that enables small businesses' access to justice is in everyone's interests and is achievable, and it's something ASBFEO has been advocating across the legal, regulatory and government sectors.

It's one of our steps in our 14 steps to energise enterprise - give small businesses access to an affordable, effective and timely alternative to defend their own economic interest where fair trading protections and reasonable commercial conduct safeguards are infringed upon.

Australia's enterprising women and men are already doing it tough, facing cash flow pressures, tight margins, rising costs, the threat of cybercrime, and new regulations or changes to laws that impact them. But they should be able to operate their business in an environment that supports them to thrive, and they should be able to protect and defend their economic interests and legal rights if things go awry.

A vast majority of small businesses do not have the expertise or the resources to pursue an action when wronged.

On top of the mental anguish and distress and time taken away from running the business, the cost and complexity of litigation can threaten the very existence of a small business.

Small businesses aren't relying on regulators or expecting them to take enforcement action to protect their rights. However, small businesses with limited options may think regulators can act on their behalf, but regulators, too, have limited resources and funding constraints, and are limited in the number of enforcement actions they can pursue.

The reality is, regulators aren't there to take on individual disputes; they take action where a practice affects a large number of consumers or a specific industry, represents a systemic failure or is of significant public interest.

If small businesses had access to justice, they should be able to rely upon laws and codes introduced to protect them from predatory commercial conduct, often perpetrated by larger and well-resourced entities. Where they believe they have been harmed by conduct that breaches the Competition and Consumer Act 2010, industry codes, or infringes their intellectual property rights, they should be able to cost-effectively take their own legal action.

The ASBFEO's Small Business Access to Justice Initiative proposes a suite of reforms that leverage existing court processes to create a more accessible, affordable, and efficient legal pathway for small businesses. These include:

• Expanding the Small Claims Process in the Federal Circuit and Family Court of Australia for disputes under $250,000 or involving less complex issues;
• Simplifying procedures in the Federal Court of Australia for lower-value cases, including expedited hearings and protections against punitive cost orders;
• Establishing an Industry Codes List to build expertise and expedite the resolution of disputes under mandatory industry codes.

These reforms are practical, proven and informed by successful models in Australia and overseas. Importantly, these reforms also strengthen alternative dispute resolution (ADR).

When litigation is a credible option, parties are more likely to engage meaningfully in ADR, which means better outcomes, preserved relationships, and reduced pressure on the courts.

Small businesses often face a larger, better-resourced party who, by the sheer threat of costs orders or by prolonging a dispute, emerges the victor. It's an all-too-familiar play, disrupting any semblance of an even playing field.

Quite simply, small businesses are at a disadvantage to settle matters, often to their detriment and an abandonment of their rights.

This has an impact on small business productivity, investment, profitability and viability, not just for the small business in a dispute but the way that the commercial environment operates for all small businesses.

The Small Business Access to Justice Initiative is a practical response to this long-standing imbalance. And with recent regulatory and compliance obligations weighing heavily on small businesses, it's a competitive necessity.

That is why ASBFEO is advocating for practical and right-size reforms through this initiative.

It's about ensuring that every small business owner, regardless of size or resources, can stand up for their rights and compete fairly.

Removing barriers that hamper small businesses' ability to thrive is logical and achievable.

If right-sized regulation can fuel productivity, right-sized justice for small businesses will keep the engine room of the economy running.

It's in all our interests, and imperative for a vibrant and innovative future for Australia.