The code organises obligations around standards of conduct, conflict avoidance, professional management, complaint handling, adjudication processing and reporting. The main concepts and their legal anchors in the code are these.

• Authorised nominating authority (ANA) status and scope. The code applies to those authorised under the Act to nominate adjudicators. Definitions default to the Act where possible (cl 2(1)-(2)). The code is made under s 28A of the Act (Order cl 3).

• Standards of competence and conduct. ANAs must understand the Act and other relevant laws (cl 4); take reasonable steps to ensure individuals involved in nomination understand those laws (cl 4(2)); exercise reasonable skill, care and diligence (cl 5); act honestly, fairly, transparently and professionally (cl 6); and refrain from disreputable conduct such as intimidation, harassment or attempting to influence adjudicators (cl 7).

• Confidentiality and data security. ANAs may not use or disclose confidential information about "interested persons" (adjudicators, claimants, respondents) except with consent or lawful excuse (cl 8(1)). They must take reasonable steps to secure confidential information (cl 8(2)).

• Conflicts of interest. ANAs must maintain a policy to identify and manage actual and perceived conflicts (cl 9(1)). The code defines a conflict as when there is a reasonable likelihood of appreciable financial or other benefit or loss to the authority or an associate (cl 9(2)). ANAs are specifically barred from referring adjudication applications where there is a conflict, and cl 10(2) prescribes concrete relationship categories to be avoided (directors, employees, spouses, de facto partners and family relations of directors or employees).

• Prohibition of inducements. ANAs must not seek, accept or offer inducements from adjudicators, claimants or respondents to affect referrals or to secure adjudication certificates (cl 11).

• Operational controls and continuity. ANAs must have policies and procedures covering management of adjudication applications, confidential information and business continuity (cl 12). Those policies must be held at the registered place of business and be available for inspection by an authorised officer (cl 13).

• Notifications on cessation and material events. ANAs must notify the Minister in writing before ceasing ANA activities (cl 14). They must notify the Minister within five business days of specified events such as director changes, fraud-related proceedings, insolvency events or other events that may disrupt activities (cl 15).

• Complaints, internal dispute resolution and recordkeeping. ANAs must have a complaints and internal dispute policy that outlines types of complaints covered, steps, deadlines and privacy measures, and must notify the Secretary of receiving complaints within 10 business days and of outcomes within five business days (cls 16-17). Detailed records of complaints and disputes must be kept for five years and made available to the Secretary on request (cl 18).

• Adjudication referral and certificate duties. ANAs must consider qualifications, amount claimed, complexity and whether the adjudicator can comply with the Act when referring (cl 19). ANAs must provide an adjudication certificate within three business days of a claimant’s request, or within three business days of receiving payment if a fee applies (cl 20).

• Fee disclosure and refund rules. ANAs must immediately notify claimant and respondent of fees for the adjudication application and for the adjudication certificate on receipt of an adjudication application (cl 21(1)). If the Minister has not fixed amounts under s 17(4) or s 28(3) of the Act, an ANA must not charge an unreasonable or disproportionate fee (cl 21(2)). If a claimant withdraws an adjudication application under s 26(2)(a) of the Act, the ANA must refund the application fee unless the claimant consents for the fee to be retained for a new application (cl 22).

• Public information and websites. ANAs must maintain a publicly accessible website with details about services, application processes, fees, contact details, complaint policies and dispute processes, and must update the website immediately on ceasing ANA activities (cl 23).

• Reporting. ANAs must submit quarterly reports to the Secretary by specified dates identifying claimant and respondent names, adjudicators, payment claim/payment schedule, application fees charged, adjudicated amounts, due dates, interest and certificate fees (cl 24). ANAs must submit an annual report within 28 days after the end of each financial year with full names of adjudicators to whom referrals were made and information about policy changes (cl 25). An ANA that ceases activities must submit a further report within 28 days (cl 26).

• Enforcement. The code lists certain clauses as offence provisions for the purpose of s 28A(4) of the Act and flags the penalty (cl 3). Contraventions, even if not offences, constitute grounds for the Minister to withdraw nomination authority under s 28A(5) of the Act (cl 3 note).

These concepts are mapped into both prohibitions and positive duties. Many duties are prescriptive and time-bound, converting governance objectives into actionable compliance steps and reporting.

Primary regulated entities. The code applies to each authorised nominating authority as defined under the Act. That includes bodies corporate, incorporated associations or individuals who hold authorisation to nominate adjudicators under the Act. The code also expressly treats, for certain notification purposes, directors (for body corporates) and board members (for incorporated associations) as included in the meaning of “authorised nominating authority” for the purposes of notification obligations (cl 15(3)).

Adjudicators. Adjudicators are an “interested person” under the confidentiality clause and are directly affected by prohibitions on ANA conduct that could influence adjudicators (cls 6-8, 11). The code forbids directing or attempting to direct adjudicators (cl 7(c)); forbids inducements related to referrals (cl 11); and requires ANAs to consider adjudicator qualifications, skills and capacity when referring (cl 19).

Claimants and respondents. The code places duties to disclose fees immediately on ANAs upon receipt of an adjudication application (cl 21(1)). It mandates website information on how to make adjudication applications and how to complain (cl 23(1)(b),(e)). Claimants specifically have a right under cl 20 to request an adjudication certificate and to have it provided within three business days; a claimant also has a refund entitlement for application fees on withdrawal under cl 22 (which references s 26(2)(a) of the Act).

Secretariat/Ministerial supervision. The Secretary to the relevant NSW administrative entity is the recipient of the code-mandated operational reporting and notifications. ANAs must provide copies of conflict policies, management policies and complaint records on request (cls 9(3), 12(2), 18(3)). The Minister has authority, via the Act, to withdraw an individual’s authority to nominate adjudicators where there is a contravention (cl 3 note referencing s 28A(5) of the Act). Several obligations require notice to the Minister (cls 14-15), and other obligations require notice to the Secretary (cls 17, 24-26).

Third parties and business advisers. Lawyers, accountants and compliance professionals advising ANAs will be affected by the code because ANAs must have written policies, keep them at their registered place of business and be ready to provide copies on request (cl 12(1)-(2), cl 13). The code creates documentary and governance workstreams that typically involve external advisers.

Who pays. The code affects fee payers directly: claimants pay application fees and may be charged certificate fees (cl 21). The code constrains the ANA’s ability to charge unreasonable or disproportionate fees where the Minister has not determined amounts (cl 21(2)). Operational costs fall on ANAs: costs of drafting, maintaining and publishing policies, running a website, recordkeeping for five-year retention of complaints, responding to Secretary requests, and preparing quarterly and annual reports (cls 12-13, 18, 23-26).

Data subjects and privacy. The code requires ANAs to report identifiable data to the Secretary in quarterly reports, including names of claimants and respondents and adjudicators (cl 24(1)(a)-(b)). At the same time cl 8 imposes confidentiality duties. Parties to adjudications therefore are affected insofar as their identities and case outcomes are collated and reported to the Secretary.

Potential supply-side effects. The code’s conflict and family relationship prohibitions on referrals (cl 10(2)) and expectations about professional qualifications and capacity (cl 19) may influence the supply of eligible adjudicators acceptable to ANAs. The code therefore affects adjudicator market participants indirectly by shaping the pool of eligible referees and the governance checks on referrals.

Enforcement target. The code identifies specific clauses as criminal offence provisions for the Act’s purposes (cl 3). Those listed provisions (including fee disclosure, certificate timeframes, reporting, and certain notification obligations) are therefore the primary targets of formal enforcement, with the penalty level specified under s 28A(4) of the Act (cl 3 note).

This section sets out the code’s principal duties and the express rights it creates or preserves. All citations are to code clauses unless otherwise stated.

Duties of knowledge and competence

• Understand the Act and other relevant laws necessary to exercise ANA functions (cl 4(1)). Ensure any individual involved in nomination understands the Act and relevant laws (cl 4(2)). The code explicitly includes fair trading, trade practices, anti-discrimination and privacy as example relevant laws (cl 4(3)).

Duties of conduct

• Exercise reasonable skill, care and diligence when performing functions under the Act (cl 5).
• Act honestly, fairly, transparently and professionally with adjudicators, claimants and respondents (cl 6(1)). Avoid unconscionable conduct and avoid conferring an unfair advantage (cl 6(2)). Maintain integrity and professional independence, including avoiding actual or perceived conflicts (cl 6(3)).
• Avoid disreputable conduct: no intimidation, harassment or verbal abuse; no discrimination in nomination of adjudicators; and do not direct or attempt to influence adjudicators (cl 7).

Confidentiality duties

• Do not use or disclose confidential information about adjudicators, claimants or respondents unless with consent or lawful excuse (cl 8(1)). Take reasonable steps to secure confidential information (cl 8(2)). Confidentiality covers commercially sensitive information as defined in cl 12(3).

Conflict management and referral limits

• Maintain a written policy to identify and manage actual and perceived conflicts of interest (cl 9(1)). A conflict includes reasonable likelihood of appreciable financial or other benefit or loss to the ANA or an associate (cl 9(2)). Provide policy to Secretary on request (cl 9(3)).
• Do not refer an adjudication application where the ANA has an actual or perceived conflict with the adjudicator, claimant or respondent (cl 10(1)). The code specifically forbids referrals to directors or employees of the ANA, spouses or former spouses, de facto partners or former de facto partners of directors or employees, and persons related by family to directors or employees (cl 10(2)).

Inducement prohibition

• Do not seek, accept or offer inducements from adjudicators, claimants or respondents to influence referrals or to secure adjudication certificates (cl 11(1)-(3)). The code defines inducement to include bribe-like conduct creating the perception of a conflict (cl 11(4)).

Operational management

• Maintain written policies and procedures covering management of adjudication applications, confidential information and business continuity (cl 12(1)). Keep policies at the registered place of business and make them available for inspection by an authorised officer (cl 13).

Notifications and continuity on ceasing activities

• Give written notice to the Minister before ceasing ANA activities and provide certain details about the date, status of current adjudication applications, reasons and record location (cl 14).
• Notify the Minister in writing within five business days of becoming aware of specified material events (appointment or removal of a director, proceedings for offences involving fraud or dishonesty, insolvency events, winding up, controllers or administrators) and any other event that may disrupt ANA activities (cl 15(1)-(2)).

Complaints and dispute resolution

• Maintain a written complaints and internal dispute policy specifying complaints covered, the process and stages, expected actions and deadlines, privacy measures and a requirement to notify complainants of outcomes with reasons (cl 16).
• Notify the Secretary in writing of a complaint or internal dispute within 10 business days of receipt and notify the Secretary of the outcome within five business days of determination (cl 17).
• Keep a record of each complaint or dispute with prescribed detail and retain records for five years (cl 18).

Adjudication referral and certificate obligations

• Consider additional qualifications and suitability, the amount claimed, complexity of issues and whether the adjudicator can comply with section 21(3) of the Act before referring an adjudication application (cl 19).
• Provide an adjudication certificate within three business days of a claimant’s request, or within three business days of receiving payment if a fee for the certificate is charged (cl 20).

Fee disclosure and refund rights

• Notify claimant and respondent immediately after receiving an adjudication application of the fees for the adjudication application and for the adjudication certificate (cl 21(1)).
• If the Minister has not determined the amount of an application fee or fee for services under s 17(4) or s 28(3) of the Act, the ANA must not charge an unreasonable or disproportionate fee (cl 21(2)).
• If a claimant withdraws under s 26(2)(a) of the Act, the ANA must refund the application fee unless the claimant consents for it to be kept as the application fee for a new application (cl 22).

Public information duties

• Maintain a publicly accessible website containing information about services, making adjudication applications, fees, contact details, complaint processes and the ANA’s complaint policy, and immediately update the website to state the ANA has ceased activities if it ceases to act (cl 23).

Reporting duties

• Provide quarterly reports to the Secretary by 30 April, 31 July, 31 October and 31 January for the preceding relevant quarter, including detailed data on each adjudication application and each adjudication certificate so issued (cl 24(1)).
• Provide an annual report within 28 days after the end of each financial year listing the full names of each adjudicator referred and information about changes to policies and procedures (cl 25).
• On ceasing activities, provide a report within 28 days including the information required by cls 24 and 25 for the intervening period (cl 26).

Enforcement and remedies

• Non-compliance with a listed offence provision is an offence for the purposes of s 28A(4) of the Act, punishable by 50 penalty units (cl 3). Any contravention of the code, whether an offence or not, is grounds for withdrawal of authority under s 28A(5) (cl 3 note).

Rights created

• The code creates a claimant’s entitlement to a prompt adjudication certificate on request or payment within a three-business-day window (cl 20).
• Claimants have a right to an application fee refund on withdrawal where the conditions in s 26(2)(a) of the Act apply unless they agree otherwise (cl 22).
• The code grants the Secretary and authorised officers inspection and request powers for policies and complaint records, creating regulatory oversight pathways (cls 9(3), 12(2), 13, 18(3)).

These duties combine behavioural prohibitions and affirmative procedural obligations; ANAs carry the compliance burden across governance, operations, disclosure and reporting dimensions.

The code explicitly identifies which of its provisions are offence provisions for the purposes of s 28A(4) of the Act and explains the penalty and administrative consequences.

Offence provisions and penalty

• Clause 3 lists the following as offence provisions for s 28A(4): clauses 9-11 (conflict policies, referral prohibitions and inducement prohibitions), clause 14 (notification before ceasing activities), clause 15(1) (five business day notification of listed events), clause 17 (timely notice to Secretary of complaints and internal disputes), clause 18(1) (keeping records of complaints/disputes), clause 20 (provision of adjudication certificate within three business days), clause 21(1) (immediate disclosure of fees to claimant and respondent), and clauses 23-26 (website maintenance, quarterly reporting, annual reporting and ceasing-activities reporting). Where a code clause is thus identified as an offence provision the maximum penalty is 50 penalty units, by operation of s 28A(4) of the Act and the cl 3 note.

Administrative enforcement and withdrawal of authority

• The code notes that a contravention of any provision of the code, whether or not it is an offence provision, constitutes grounds for the Minister to withdraw an individual’s authority to nominate adjudicators under s 28A(5) of the Act (cl 3 note). This creates a distinct administrative sanction in addition to criminal penalty exposure.

Regulatory oversight and inspection

• The code requires ANAs to keep policies at their registered place of business and to make them available for inspection by an authorised officer (cl 13). It also requires provision of policies or records to the Secretary on request (cls 9(3), 12(2), 18(3)). These provisions enable administrative review and fact-finding by the Secretary or authorised officers as a prelude to enforcement actions.

Time-critical obligations and enforcement implications

• Many obligations are expressed in time-critical terms: provide an adjudication certificate within three business days of a claimant request or payment (cl 20); notify Minister within five business days of certain events (cl 15(1)); notify the Secretary of complaints within 10 business days (cl 17(1)) and of the outcome within five business days (cl 17(3)); produce quarterly returns by specified dates (cl 24(1)). Where these specific clauses are identified as offence provisions, breaches are both time failures and criminalised contraventions.

Financial penalties and practical enforcement

• The code ties criminal penalty quantum to the Act rather than setting new fines within the code text. The note in cl 3 references s 28A(4) for the penalty amount. The code therefore centralises enforcement mechanics in the Act, while the code provides the substantive catalogue of obligations that trigger enforcement. Administrative enforcement (withdrawal of authority under s 28A(5)) does not require the offence threshold to be met.

Data reporting as enforcement tool

• The quarterly reporting obligation (cl 24) mandates detailed data flow to the Secretary, including names of claimants and respondents, adjudicator identity, application and certificate fees, adjudicated amounts, due dates and interest. That reporting gives the Secretary visibility into ANA operations and becomes a factual basis for both administrative action and potential criminal investigations.

Overlap with confidentiality duties

• The code imposes confidentiality duties (cl 8) yet separately requires the transmission of identifiable case information to the Secretary (cl 24). The code does not expressly prioritise one obligation over the other. Enforcement of confidentiality obligations will need to be read alongside the reporting duties and, where necessary, the lawful-excuse carve-out in cl 8(1)(b). This creates an implementation and enforcement question for regulators about how to treat data collected under cl 24 when reviewing cl 8 compliance.

Practical consequences for ANAs

• ANAs face combined enforcement risks: criminal penalties for breaches of specified clauses, administrative risk of losing nominating authority for any breach of the code, and reputational and operational costs associated with formal investigations prompted by required disclosures and reports. The code’s design channels the Secretary and the Minister as the primary regulatory enforcers.

The code explicitly cross-references and builds on the Act. It also refers to other laws as relevant to an ANA’s functions. The principal interaction points are these.

Direct linkage to the Act

• The code is made under s 28A of the Act (Order cl 3). Clause 2(2) states that words used in the code that are defined in the Act have the same meanings as in the Act. Multiple code obligations reference specific provisions in the Act: cl 19( note) refers to s 17(6) of the Act which requires referral to an eligible adjudicator as soon as practicable; cl 19 requires ANAs to consider whether the adjudicator will be able to comply with s 21(3) of the Act; cl 21(2) references s 17(4) and s 28(3) of the Act regarding fee determinations; cl 22 references s 26(2)(a) of the Act in relation to withdrawal and refund. The code therefore operates as a regulatory layer under and in support of the Act’s nomination scheme.

Administrative law and powers

• The code requires ANAs to provide documents to the Secretary and to make them available on inspection by an authorised officer (cls 9(3), 12(2), 13, 18(3)). These requirements place ANAs within the administrative oversight framework of the relevant NSW agency. The Minister’s power under s 28A(5) of the Act to withdraw authority for contraventions is an administrative sanction linked to the code framework (cl 3 note).

Corporations law and governance

• Clause 2(1) adopts the Corporations Act 2001 definition of director. Clause 15(3) treats directors and board members as falling within the meaning of an authorised nominating authority for notification purposes. Where the ANA is a body corporate, corporate governance duties in the Corporations Act (for example director duties) will operate alongside the code’s director-specific notification requirements. The code does not alter Corporations Act duties; it requires notification of specified events such as director appointment, resignation or removal (cl 15(1)(a)).

Privacy law

• The code requires ANAs to keep confidential information secure and not to disclose it except with consent or lawful excuse (cl 8). At the same time, it requires the reporting to Secretary of personally identifiable data in quarterly returns (cl 24(1)). Neither the code nor the Order reconciles those obligations with NSW or Commonwealth privacy laws, or provides the legal basis for the transfer of personal data to the Secretary. ANAs will need to ensure the reporting obligations are met consistently with privacy law; the code itself signals the Secretary as intended recipient, which implies an administrative-lawful basis for such disclosure but does not displace other statutory privacy duties outside the code.

Criminal law, fraud and dishonesty offences

• Clause 15 requires notification to the Minister of proceedings being instituted against the ANA for an offence involving fraud or dishonesty and notification where the ANA has been found guilty of such an offence (cl 15(1)(b)-(c)). That reference bridges the code’s governance oversight with general criminal and quasi-criminal proceedings tracked by NSW regulators.

Regulatory consistency and other dispute resolution rules

• The code requires ANAs to understand “other relevant laws” including those relating to dispute resolution (cl 4(1)-(3)). That embeds an expectation of alignment with other rules governing dispute resolution practice. It does not supplant those laws, but it requires ANAs to be conversant with them.

Fees and statutory determinations

• Clause 21(2) refers to the Minister’s ability under the Act to determine fee levels (s 17(4), s 28(3)). Where the Minister has set fees, those amounts provide a statutory cap. Where no ministerial determination has been made, the code prohibits “unreasonable or disproportionate” fees. That interacts with consumer protection or fair-trading law insofar as third parties may have remedies available outside the code against unconscionable or unfair fee practices.

Inspection and enforcement powers

• The code’s inspection and reporting duties indicate an administrative enforcement architecture, and the Minister’s withdrawal power under s 28A(5) of the Act is the administrative sanction. The code does not itself create additional statutory enforcement remedies beyond those in the Act, but it prescribes offences that are enforced through the Act’s penalty mechanism (cl 3).

In sum, the code is a delegated regulatory instrument that sits within the Act’s statutory framework, interacts with corporate, privacy and criminal law by reference, and requires ANAs to operate in a manner consistent with other legal obligations while adding operationally specific duties and reporting lines to the Secretary and Minister.

The statutory instrument text supplied is the Building and Construction Industry Security of Payment,Authorised Nominating Authorities (Code of Practice) Order 2020 and its Schedule 1, the Code of Practice. The Order sets out two short clauses in the instrument proper: the name of the Order (cl 1) and commencement (cl 2), including a requirement it be published on the NSW legislation website (cl 2). Clause 3 of the Order states that the code in Schedule 1 is made for the purposes of s 28A of the Act.

Key dates and formal steps recorded in the instrument

• The code is titled the Building and Construction Industry Security of Payment Authorised Nominating Authorities Code of Practice 2020 (Schedule 1, cl 1).
• The Order commences on 1 January 2021 (Order cl 2).

Amendment record in the provided text

• The supplied instrument does not include any later amending provisions or schedules beyond the Code of Practice itself. There are no amendment notes, repeals, transitional provisions or saved instruments shown in the text provided. The code itself contains no text indicating that it revokes or replaces any prior code. The code is presented as the operative Schedule for authorisation under s 28A.

What to look for in external amendment history

• Because the code is made under s 28A of the Act, any further changes to duties, reportable items, offence listings or penalties could only be effected by subsequent Orders under that section or by legislative amendment to the Act itself. Practitioners should check the NSW legislation website for any later reprints, amendments, or replacement Orders that amend Schedule 1 or vary commencement dates, and for Ministerial determinations under the Act that might alter fee caps referred to in cl 21(2). The Order itself requires publication on the NSW legislation website (Order cl 2), so that website is the primary authoritative source for the code and any subsequent amendments.

Transitional and saving provisions

• The text supplied contains no transitional or saving provisions. Where an ANA ceases activities, the code mandates a specific exit report within 28 days including the information otherwise required by cls 24 and 25 for the relevant period (cl 26), but there are no transitional relics about how the code applies to applications or certificates lodged immediately prior to commencement.

Practical note

• The absence of amendment history in the supplied text means that, from this instrument alone, the code as published on 1 January 2021 is the version to be applied. Users should confirm there have been no subsequent Orders varying cl 3 or the Schedule, no Ministerial determinations affecting fees (s 17(4), s 28(3) of the Act), and no statutory amendments to s 28A of the Act that would change enforcement or the code-making power. The code itself requires ANAs to file reports and keep records; those documentary trails will assist in determining whether later versions apply to particular historic conduct.

The Schedule 1 code text supplied contains no references to case law, judicial decisions or administrative tribunal determinations. The code does not cite any litigation, and no judicial interpretation or litigation history is contained in the instrument itself.

What the code does identify as enforcement avenues

• The code creates offence provisions for the purposes of s 28A(4) of the Act (cl 3), and it notes that contraventions may be grounds for withdrawal of authority under s 28A(5) of the Act (cl 3 note). Any litigation concerning the code’s provisions would therefore likely arise under criminal prosecution of offences created by the Act’s enforcement provisions, administrative law challenges to a Ministerial withdrawal decision under s 28A(5), or statutory proceedings seeking to test compliance with the Act and the code.

Potential judicial questions if litigation arises

• Interpreting obligations expressed in the code could give rise to judicial or administrative questions such as the meaning of “immediately” in fee disclosure obligations (cl 21(1)), what constitutes an “unreasonable or disproportionate” fee where the Minister has not determined amounts (cl 21(2)), the scope of “lawful excuse” for disclosure of confidential information (cl 8(1)(b)), or whether conduct falls within the code’s definition of a conflict of interest (cl 9(2)). Enforcement actions based on late or incomplete reporting (cls 24-26) would raise questions about procedural fairness where the Minister seeks to withdraw authority.

Administrative review

• Given the code ties withdrawal of nomination authority to any contravention (cl 3 note), administrative law challenges (judicial review) to a Ministerial decision to remove an authority may be expected in cases where the factual finding of contravention is contested. Those would engage standard public law grounds such as procedural fairness, jurisdictional error and rationality.

Absent current case law

• Because the text supplied contains no litigation record, practitioners should search NSW administrative decisions and court databases for any proceedings under s 28A of the Act, prosecutions related to the specific clause offences, and decisions interpreting code-required duties since January 2021. The code’s reporting regime (cl 24) will generate a data trail useful for regulators and would likely form part of the factual matrix in any enforcement litigation.

The code is detailed and prescriptive; practitioners and ANAs should note a range of specific traps and operational frictions that can cause non-compliance.

1. Time-critical obligations with criminal exposure

• Several clauses that are listed as offence provisions require prompt action. Failure to meet these timeframes may exposure ANAs to criminal penalties of up to 50 penalty units under s 28A(4). Examples: provide adjudication certificate within three business days of request/payment (cl 20); disclose fees “immediately” on receipt of an adjudication application (cl 21(1)); notify the Secretary of complaints within 10 business days (cl 17(1)); advise the Minister of specified events within five business days (cl 15(1)). “Immediate” and the specified business-day timeframes are strict; administrative processes must be designed to meet them.

2. Conflict and relationship prohibitions are specific

• Clause 10(2) contains hard bars to referring adjudications to directors, employees, spouses, former spouses, de facto partners or family relations of directors or employees. ANAs who use lists or panels should ensure automated or manual conflict checks include these relationship types. Casual or poorly-documented screening increases risk of inadvertent breach.

3. Tension between confidentiality and reporting duties

• Clause 8 prohibits disclosure of confidential information absent consent or lawful excuse. Clause 24 requires detailed quarterly reports to the Secretary including full names of claimants and respondents and adjudicated amounts. The code does not expressly reconcile these duties. ANAs will need to document and rely on a lawful basis for reporting to the Secretary or obtain consents from parties where appropriate. Failure to do so risks breaching cl 8 while attempting to comply with cl 24.

4. Fee rules and “unreasonable or disproportionate”

• Where the Minister has not set fee amounts under s 17(4) or s 28(3) of the Act, cl 21(2) requires ANAs not to charge an “unreasonable or disproportionate” fee. That is a qualitative standard without a numeric test in the code. ANAs should document fee-setting rationale and benchmarking. The absence of objective thresholds increases enforcement and litigation risk if challenged.

5. Wide reporting fields create operational data burden

• Quarterly reports (cl 24(1)) require itemised reporting for each adjudication application received and for each adjudication certificate issued. The fields include names, adjudicators, payment claims and schedules, adjudicated amounts, due dates, interest and fees. Maintaining data capture and retention systems to reliably supply this information by the specified quarterly deadlines will impose an administrative burden. Failure to file or filing incomplete returns is an offence provision.

6. Website maintenance and immediate update on cessation

• Clause 23 requires a publicly accessible website with prescribed information. If an ANA ceases activities it must update the website immediately to state that fact. ANAs that outsource web services should ensure access and processes are in place to effect prompt updates and archival.

7. Records retention and disclosure to Secretary or authorised officers

• Complaint records must be kept for five years (cl 18(2)). ANAs must provide policies and records on request to the Secretary (cls 9(3), 12(2), 18(3)) and make policies available for inspection by an authorised officer (cl 13). Failure to retain or produce required documents can be an offence and an administrative ground for withdrawal.

8. Ceasing-business notice must cover active adjudications

• The notice to the Minister before ceasing ANA activities must specify the status of current adjudication applications including the action to be taken and dates or expected dates of determinations (cl 14(2)(b)). ANAs that wind down without clear case-transfer or continuity plans risk regulatory scrutiny and potential contravention of cl 14.

9. “Lawful excuse” undefined

• Clause 8(1)(b) allows disclosure of confidential information with “lawful excuse” but the code provides no definition. ANAs should document legal bases relied upon for any disclosure. Reliance on “lawful excuse” without clear statutory or judicial basis can be contested.

10. Broad clause 3 listing of offence provisions

• Clause 3 includes numerous clauses as offence provisions, including management policies, referral practice, fee disclosure, certificates, website and reporting. The breadth of the offence catalogue means administrative failures in varied operational areas can become criminal offences. ANAs must treat compliance holistically rather than as discrete areas.

11. Ministerial powers and administrative uncertainty

• Any contravention of the code is grounds for withdrawal of authority under s 28A(5) of the Act (cl 3 note). Even where a breach is not charged as a criminal offence, the Minister may withdraw authority. ANAs should document remedial steps promptly on identification of a breach and communicate with the Secretary to mitigate administrative outcomes.

12. Ambiguities around “business days”

• The code uses “business days” for several timeframes but does not define the term in Schedule 1. ANAs should align with NSW standard definitions or seek legal clarification for counting obligations around public holidays and cross-jurisdictional operations.

These gotchas highlight that the code is operationally prescriptive and that administrative systems need to be designed to meet its procedural and reporting obligations while managing privacy and conflict risks.

Compliance requires operational processes, documented policies, recordkeeping systems and reporting routines. Below is a practical compliance checklist with references to the relevant clauses.

1. Governance and written policies

• Draft, adopt, and periodically review a conflict of interest policy that identifies, manages and records actual and perceived conflicts and documents escalation procedures. Ensure it addresses the code’s definition of conflict and includes the family and employment relationship prohibitions in cl 10(2). Keep the policy available to provide to the Secretary on request (cls 9(1)-(3), 10).
• Draft operational policies for management of adjudication applications, confidential information and business continuity as required by cl 12(1)(a)-(c). Include definitions and handling protocols for commercially sensitive information (cl 12(3)).
• Create a complaints and internal dispute resolution policy that states covered and excluded complaint types, process steps, timeframes, privacy protections and notification requirements (cl 16(1)-(3)). Ensure the policy includes the requirement to notify complainants of outcomes and reasons (cl 16(3)(e)).

2. Document storage and availability

• Store policies and procedures at the registered place of business and implement secure, indexed records management to allow quick production for inspection by an authorised officer or on the Secretary’s request (cl 13, cl 12(2)).
• Maintain complaint and dispute records with the fields specified in cl 18(1)(a)-(d) and retain them for five years from the complaint date (cl 18(2)). Ensure capability to supply copies to the Secretary within any reasonable request period (cl 18(3)).

3. Conflict screening and referral process

• Implement a conflict screening process for every adjudication application that checks for relationships listed in cl 10(2) and other conflicts identified in the conflict policy. Keep contemporaneous conflict check records showing who was screened and the outcome.
• When selecting an adjudicator, document the assessment of qualifications, claimed amount, complexity and whether the adjudicator can comply with s 21(3) of the Act (cl 19).

4. Prohibition of inducements

• Adopt explicit staff rules and commercial terms prohibiting the solicitation or acceptance of inducements, with an escalation and investigation protocol for any allegation (cl 11).

5. Confidentiality and secure handling

• Establish data security measures: access controls, encryption where appropriate, staff training, and breach response plans to meet the “reasonable steps” security duty in cl 8(2). Keep written records of consent where confidential information is disclosed with consent (cl 8(1)(a)).

6. Fee disclosure, charging and refunds

• Ensure systems immediately notify both claimant and respondent of the adjudication application fee and certificate fee on receipt of an adjudication application (cl 21(1)). Where fees are charged and unpaid, ensure the certificate process waits for payment before starting the three-business-day clock (cl 20).
• Document fee-setting methodology and comparators to evidence that fees are not “unreasonable or disproportionate” if the Minister has not set fees under the Act (cl 21(2)).
• Maintain mechanisms for refunding application fees if claimants withdraw under s 26(2)(a) of the Act, unless the claimant consents to retain the fee for a new application (cl 22).

7. Website and public disclosure

• Maintain a public website containing services offered, how to make adjudication applications, all fees (including certificate fees), complaints information and complaint policy, and contact and address-for-service details (cl 23(1)(a)-(f)). Implement a rapid update capability to change the website immediately should the ANA cease activities (cl 23(2)).

8. Notifications to Minister and Secretary

• Prepare notification templates and a monitoring calendar for events triggering Ministerial notification under cl 14 and cl 15. Ensure triggers include director changes, insolvency events, proceedings involving fraud or dishonesty, and any event likely to disrupt ANA activities. Allocate responsibilities to specified officers to ensure notice is provided within five business days (cl 15(1)-(2)).
• Put in place a complaints intake log with alerts to notify the Secretary in writing of complaints within 10 business days and to report the outcome within five business days (cl 17). Maintain a designated point of contact for Secretary queries.

9. Adjudication certificate process

• Create a certificate request intake and fulfilment workflow that ensures adjudication certificates are issued within three business days of receiving a claimant’s request, or within three business days of payment if a fee is charged (cl 20). Log timestamps for receipt of request and payment to demonstrate compliance.

10. Reporting systems

• Implement data capture to meet quarterly reporting requirements (cl 24). Capture and verify the required fields: claimant name, respondent name, adjudicator name, payment claim and payment schedule details, application fee charged, adjudicated amount, date due, interest payable and certificate fee charged. Map relevant quarter definitions to the report deadlines (cl 24(2) and cl 24(1) reporting dates).
• Prepare annual reporting templates for submission within 28 days after the end of the financial year to meet cl 25, including a list of the full names of adjudicators to whom referrals were made and a record of policy changes.
• On cessation, collate the reporting data for the period since the last report and submit within 28 days (cl 26).

11. Training, delegation and delegation records

• Train staff and agents involved in nomination and intake on all relevant clauses in the code. Keep records of training and delegation of responsibilities to demonstrate reasonable steps to comply with cl 4(2) and cl 5.

12. Legal and privacy clearance

• Coordinate with legal counsel to confirm that quarterly reporting and other disclosures to the Secretary are made on a lawful basis and that any transfer of personal data is consistent with privacy obligations; document legal advice as part of the compliance file (cl 8 and cl 24).

13. Incident response and remediation

• Create and test an incident response plan to address breaches, complaints, or failure to meet critical timeframes. If a contravention occurs, promptly notify the Secretary and Minister as required, document remedial steps, and consider voluntary self-reporting and remediation to mitigate the risk of withdrawal of authorisation (cl 3 note, cls 14-17).

14. Board oversight and periodic review

• Ensure boards and senior officers receive periodic compliance reports covering conflict checks, complaints trends, website maintenance, data security incidents, and status of reporting obligations. Ensure directors and officers understand notification duties (cl 15) and the administrative risk of withdrawal under the Act.

By converting each code clause into a discrete operational control, ANAs can demonstrate a system of compliance aligned with the code’s prescriptive duties and timeframes. Documentation, timestamped records, and a clear chain of responsibility are central to evidencing compliance.