Competition and Consumer (Industry Codes—Franchising) (Additional Information Required by the Secretary) Determination 2022

This Determination prescribes additional information that certain franchisors must provide to the Secretary under subsection 92(4) of the Competition and Consumer (Industry Codes,Franchising) Regulations 2024 (the Franchising Regulations). Mechanically, the instrument (1) identifies which franchisors are “determined as needing to provide the Secretary with the information covered by section 7” in relation to each disclosure document they create (s 6(1)), (2) sets two narrow circumstances in which that determination does not apply (s 6(2)), and (3) lists, in section 7, the specific data elements that must be supplied and the categories of information that are excluded from the requirement (s 7(1)-(2)). The instrument defines “Franchising Regulations” for interpretive purposes and expressly ties expressions to the Franchising Regulations “as in force from time to time” (s 4), invoking paragraph 13(1)(b) of the Legislation Act 2003.

The Determination operates as a subordinate instrument made under the Franchising Regulations (s 3). It does not amend the primary Regulations or primary legislation directly; instead it fixes the content of additional disclosures the Secretary may require under the Regulations’ existing power (s 6(1) referencing subsection 92(4) of the Regulations). The information mandated is predominately system-level, commercial and historical information about the franchised business, the franchisor and certain associates or directors. Section 7 sets temporal cut-offs for certain reputational and insolvency matters (for example, convictions in the last 10 years; final civil judgments in the last 5 years) and specifies the form of financial and contractual detail required (for example, ranges or descriptions of costs and payments; why and how pre-agreement payments are to be applied) (s 7(2)(aa), (e)-(h), (j)-(m)).

The Determination also constrains the reporting obligation by excluding, from the mandatory list, personal information about individuals other than a franchisor and information relating to particular named franchisees or specific sites (s 7(1)). Putting those mechanical pieces together, the instrument creates a recurring, document-linked data submission duty on franchisors subject to the Regulations, while carving out narrowly framed privacy- and specificity-based exceptions.

The Determination operationalises a few core concepts that determine its scope and effect.

• Determination of necessity. Section 6(1) uses the language “is determined as needing to provide the Secretary with the information covered by section 7 in relation to each disclosure document created by the franchisor.” This is an administrative specification: franchisors to which s 92 of the Franchising Regulations applies are the population to which the Determination assigns a data-supply duty in relation to each disclosure document they create. The instrument does not itself define “Secretary” or the procedures for transmission; it presumes the regulatory framework in the Franchising Regulations and the Legislation Act 2003 for interpretation (s 4).

• Narrow exemptions. Section 6(2) provides an exception where both conditions are met: (a) the disclosure document relates to a franchise where the franchisor has entered into fewer than two franchise agreements; and (b) the disclosure document relates to a franchise where the franchisor does not intend to enter into a franchise agreement, or if the franchisor is a company, its directors do not intend to enter into a franchise agreement. Both limbs must be satisfied for the exemption to apply (s 6(2)).

• Excluded information types. Section 7(1) circumscribes the mandatory list by excluding: personal information that relates to an individual other than a franchisor; information that relates to a particular franchisee of a franchisor; and information that relates to a particular site being occupied by a franchisee. These exclusions indicate that the Secretary’s requested dataset is intended to be non-identifying and system-level rather than micro-level, client- or location-specific data.

• Specified data fields. Section 7(2) enumerates the required material. It includes the business/operational vintage (number of years operating in Australia); complaints or legal history and insolvency indicators for the franchisor, associates or directors with defined look-back periods (s 7(2)(a), (aa)); counts of existing franchised businesses and substantially similar businesses owned or operated by the franchisor or associates and the jurisdictions in which they operate (s 7(2)(b)-(c)); restrictions on sourcing goods or services imposed on franchisees (s 7(2)(d)); the structure and purpose of pre-agreement payments (s 7(2)(e)); start-up costs and ongoing payment obligations, including payments to third parties (s 7(2)(f)-(h)); whether unilateral variation is permitted (s 7(2)(i)); whether dispute resolution arbitration complies with a specified subdivision of the Franchising Regulations (s 7(2)(ia)); term and renewal options (s 7(2)(j)-(k)); goodwill and restraint-of-trade treatment (s 7(2)(l)-(m)).

Primary obligations fall on franchisors to whom section 92 of the Franchising Regulations applies; for those franchisors, section 6(1) makes them “determined as needing to provide” the specified information to the Secretary in respect of each disclosure document they create. The instrument does not enumerate exempt franchisor categories beyond the narrow exemption in s 6(2). The exemption applies where both elements are true: the disclosure document relates to a franchise where the franchisor has entered into fewer than two franchise agreements, and the franchisor (or, if a company, its directors) does not intend to enter into a franchise agreement (s 6(2)). In practice that exemption will shield some start-ups or one-off franchise offerings where intentionality to expand is absent, but the instrument’s text requires both the low-count and no-intent conditions.

The instrument explicitly extends reporting to information about associates of the franchisor and directors of the franchisor or associates where applicable. Section 7(2)(aa) requires disclosure of whether the franchisor, an associate, or a director of the franchisor or the associate has been convicted of a serious offence within the last 10 years, subject to specified civil judgments within the last five years, or bankrupted/insolvent under administration or a Chapter 5 body corporate in Australia or elsewhere. This pulls related parties into the scope of the reporting obligation for reputational and insolvency history, not just the franchisor entity itself.

The Determination also affects the Secretary and the administering agency by dictating the type of information they will receive and, implicitly, the analytical possibilities available to them when assessing franchise systems. The Secretary becomes the recipient of a structured data feed tied to each disclosure document, covering vintage, geographic footprint, payment structures, supply restrictions, dispute resolution clauses and certain historical legal/insolvency events (s 6(1), s 7(2)).

Third parties are affected indirectly. Franchisees and potential franchisees will not generally have their particular identities reported under the mandatory fields, since s 7(1) excludes information that relates to a particular franchisee or particular site. However the information required,counts of existing businesses/franchisees, descriptions of costs, and payments payable,will be transmitted to the Secretary and could be used by the administrative agency in aggregate monitoring or public policy work. Suppliers or third-party payees are referenced where payments are to persons other than the franchisor or an associate (s 7(2)(h)), because franchisors must disclose whether such payments are payable and provide ranges or descriptions.

Duties

• Data-supply duty in relation to each disclosure document: Where section 92 of the Franchising Regulations applies, each franchisor is determined as needing to provide the Secretary with the information specified in section 7 in relation to each disclosure document they create (s 6(1)). The duty is document-linked, not one-off.

• Content-specific duties: Section 7(2) prescribes the exact information to be provided, including:

  • Years operating in Australia (s 7(2)(a)).
  • Historical convictions, civil judgments and insolvency/bankruptcy status for the franchisor, associates or their directors with specified look-backs (s 7(2)(aa)).
  • Numbers of existing franchised businesses and substantially similar businesses owned or operated by the franchisor or associates, and the States/Territories in which they operate (s 7(2)(b)-(c)).
  • Restrictions on franchisees’ ability to acquire goods or services from other sources (s 7(2)(d)).
  • Details about any required payments before entering into a franchise agreement, including purpose, application, who holds the money and refund conditions (s 7(2)(e)).
  • Start-up costs and ongoing payments, including payments to third parties, with the instrument allowing upper/lower limits or descriptions (s 7(2)(f)-(h)).
  • Whether the franchise agreement may be unilaterally varied by the franchisor (s 7(2)(i)).
  • Whether the agreement provides for arbitration consistent with Subdivision C of Division 2 of Part 5 of Chapter 2 of the Franchising Regulations (s 7(2)(ia)).
  • Term and renewal options (s 7(2)(j)-(k)).
  • Rights to goodwill created by the franchisee and restraint-of-trade clauses (s 7(2)(l)-(m)).

• Form of disclosure: For cost/payment fields the Determination exemplifies acceptable forms,upper and lower limits, a description of potential costs, or both,so franchisors may comply with quantitative ranges, qualitative descriptions, or combined formats (s 7(2)(f)-(h)).

Constraints and exclusions

• Exclusion of personal information about non-franchisor individuals: Section 7(1)(a) excludes “personal information that relates to an individual other than a franchisor.” The duty therefore targets franchisor-level and aggregate system data rather than identifiable personal data about customers, individual franchisees or other third parties.

The Determination itself does not include express penalty provisions or an enforcement mechanism within its text. It is a subordinate instrument made under the Franchising Regulations (s 3), and it prescribes who “is determined as needing to provide” information to the Secretary (s 6(1)), and the content of that information (s 7). The instrument does not, however, set out sanctions for non-compliance, timeframes for provision, formats for submission, verification procedures, or enforcement powers exercisable by the Secretary.

Because the Determination is made under the Franchising Regulations, enforcement and penalty mechanisms (including any consequences for failing to comply with a Secretary’s information request) will arise, if at all, from the parent Regulations or the primary statute under which the Regulations are authorised. The Determination repeatedly references the Franchising Regulations for terms and interpretive connections (s 4, s 7 notes). Accordingly, a full account of penalties and enforcement options requires consultation of the Franchising Regulations and the underlying Act that confer the Secretary’s information-gathering power and any sanctions for non-compliance. The Determination itself confines its content to the scope and substance of what must be provided, not to the remedies for failure to provide it.

That said, the absence of penalties or enforcement mechanism in the text is itself an operational fact: franchisors reading only this Determination will not find within it procedural obligations about how and when to submit the information, nor the prescribed legal consequences of failing to do so. The Determination does, however, create a clear factual predicate (a defined list of required items) that can be relied upon by administrators when invoking whatever enforcement powers the Franchising Regulations or applicable statutes provide. Practically, the existence of the Determination sharpens what compliance means even where the specific enforcement path is set out elsewhere.

The Determination is explicitly tied to other instruments and statutes within its text and notes.

• Franchising Regulations. The Determination is made under the Competition and Consumer (Industry Codes,Franchising) Regulations 2024 (s 3). Section 4 defines “Franchising Regulations” and states that expressions have the same meaning as in those Regulations “as in force from time to time,” invoking paragraph 13(1)(b) of the Legislation Act 2003. Numerous cross-references in section 7 link the required information to items in Schedule 1 of the Franchising Regulations (for example, paragraph (i) of s 7(2) relates to item 17 of Schedule 1). The Determination therefore functions as a subordinate specification of information obligations falling under the Franchising Regulations’ authority, and its interpretation depends on those Regulations.

• The Act and Corporations Act. The note to section 7(2)(aa) cites “contravention of the Act or the Corporations Act” as matters captured by item 4(1) of Schedule 1 to the Franchising Regulations. The Determination requires franchisors to report whether they, an associate, or a director has been subject to final judgment in civil proceedings for such matters within the last five years (s 7(2)(aa)(ii)). Therefore the Determination pulls into scope historical adverse findings under the Act (presumably the Competition and Consumer Act or other Act referenced within the Franchising Regulations’ Schedule language) and the Corporations Act as relevant reputational or risk indicators.

• Legislation Act 2003. Section 4’s interpretive note explicitly invokes paragraph 13(1)(b) of the Legislation Act 2003 to fix meanings as they appear in the Franchising Regulations “as in force from time to time.” Thus the Determination is to be read with an eye to the usual statutory interpretation principles and the dynamic incorporation of definitions from the referenced Regulations.

• Subdivision C of Division 2 of Part 5 of Chapter 2 of the Franchising Regulations. Section 7(2)(ia) requires disclosure whether the franchise agreement provides for arbitration of disputes in a manner consistent with that Subdivision. The Determination therefore requires franchisors to state whether the arbitration mechanism in their agreement aligns with a particular procedural standard embedded in the Franchising Regulations.

The Determination does not explicitly reference privacy legislation, but section 7(1) excludes personal information about individuals other than franchisors from the mandatory list. That exclusion signals an intent to avoid collecting identifiable third-party personal data under this instrument, but the Determination does not itself assert compliance obligations under any privacy statute. Similarly, while the Determination mandates disclosure of insolvency history and convictions, it does not specify processes for checking or certifying those records against records maintained under the Corporations Act or criminal registers; such procedural interactions would be governed by the Franchising Regulations or other applicable laws outside this Determination’s text.

The Determination’s text presents a limited and self-contained record. It gives its instrument name as the Competition and Consumer (Industry Codes,Franchising) (Additional Information Required by the Secretary) Determination 2022 (s 1). It also states that it is made under the Competition and Consumer (Industry Codes,Franchising) Regulations 2024 (s 3). The instrument contains no subsequent amendment notes, no revocation clause, no dates of making or commencement within the provided text, and no schedules that amend earlier instruments. It also does not record prior versions or a history of textual changes.

Because section 4 expressly imports expressions “as in force from time to time” from the Franchising Regulations, the Determination is drafted to operate alongside later amendments to those Regulations: definitions and cross-references will track the Franchising Regulations’ future state. That design choice means the Determination’s substantive list may be read against any updated terminology or definitions in the Franchising Regulations without requiring the Determination itself to be formally amended whenever the parent Regulations change.

Within the four corners of the provided instrument, there is no explicit recorded amendment history, no schedules of amendments, and no transitional provisions. If a practitioner needs a formal amendment trail,dates of making, gazettal, commencement, or subsequent amendments,they will need to consult the official register or legislative database where the instrument is published. The Determination itself gives no further internal record of revision or prior versions.

The Determination’s text contains no reference to litigation, judicial decisions, or tribunal considerations involving the instrument. It does not cite case law, judicial interpretations, or administrative appeals that have arisen under its provisions. The instrument also does not mention any disputes, enforcement actions, or determinations that have been litigated.

Because it is an administrative specification made under the Franchising Regulations, any litigation arising from non-compliance, interpretation of “needing to provide,” or disputes about the meaning of the specified information fields would likely be recorded in external judicial or administrative records. Those records are not included in this Determination. Practitioners seeking to understand how courts or tribunals have treated analogous Secretary information powers, the obligation to provide disclosure-document-linked data, or the particular formulations in section 7 would need to review case law and administrative decisions outside this instrument.

Within the instrument itself, therefore, there is no litigation history to report. The Determination sets out obligations and exceptions but leaves enforcement and judicial review outcomes to the broader legal framework and external record-keeping.

The instrument is short and precise, but several practical and interpretive pitfalls emerge from its wording.

• Document-linked obligation. The duty attaches “in relation to each disclosure document created by the franchisor” (s 6(1)). If a franchisor prepares multiple disclosure documents for different territories, business models, or iterations, the obligation will appear to apply to each document. Practically, that can multiply reporting obligations because the duty is document-specific rather than entity-wide.

• Narrow but conjunctive exemption. Section 6(2) exempts a disclosure document only if both conditions are true: (a) the disclosure document relates to a franchise where the franchisor has entered into less than two franchise agreements; and (b) the disclosure document relates to a franchise where the franchisor does not intend, or if a company the directors do not intend, to enter into franchise agreements. The conjunctive “and” means that a franchisor with fewer than two agreements who nevertheless intends to expand remains within scope. Franchisors must therefore assess both their historical count and subjective or board-level intent about future franchising,documenting directors’ intent may be necessary to establish the exemption (s 6(2)).

• Look-back periods and scope of persons. Section 7(2)(aa) requires detail about whether the franchisor, an associate, or a director of the franchisor or associate has been convicted of a serious offence in the last 10 years, or subject to final judgment in civil proceedings in the last 5 years for matters in item 4(1) of Schedule 1 to the Franchising Regulations. That pulls associates and directors into the reporting net and imposes distinct timeframes. Franchisors may face complexity in verifying associates’ histories, especially where associates are separate legal entities or are located outside Australia (the clause covers events “in Australia or elsewhere”) (s 7(2)(aa)(i)-(iii)).

• Exclusions do not eliminate all privacy issues. Section 7(1) excludes personal information relating to an individual other than a franchisor. However, the instrument still requires reporting about directors’ histories (s 7(2)(aa)), and franchisors must ensure they do not inadvertently disclose information that technically relates to a particular franchisee or site, both of which are excluded (s 7(1)(b)-(c)). Care is needed to anonymise aggregated counts and to ensure that the reported counts and descriptions cannot be reverse-engineered to identify individuals or sites.

Step 1 , Determine applicability (s 6(1)-(2))

• Confirm whether section 92 of the Franchising Regulations applies to the franchisor. If it does, s 6(1) determines the franchisor as needing to provide the information in relation to each disclosure document it creates. If unsure whether the Franchising Regulations apply, consult the parent Regulations; the Determination itself does not define those boundaries beyond tie-in language (s 4).
• Check the exemption in s 6(2). The exemption requires both that (a) the disclosure document relates to a franchise where the franchisor has entered into fewer than two franchise agreements, and (b) the disclosure document relates to a franchise where the franchisor does not intend (or, if a company, its directors do not intend) to enter into franchise agreements. Document the factual basis for either limb; for companies, board minutes or directors’ resolutions may be needed to evidence intent.

Step 2 , Prepare the required fields (s 7(2))

• Operating vintage: record the number of years the franchise or franchise system has operated in Australia (s 7(2)(a)).
• Adverse historical events: collect records showing whether the franchisor, any associate, or any director of the franchisor or associate has been convicted of a serious offence in the last 10 years; been subject to final judgment in civil proceedings within the last five years for matters listed in item 4(1) of Schedule 1 to the Franchising Regulations (which include breaches of franchise agreements, contraventions of the Act or the Corporations Act, unconscionable conduct, dishonesty offences, and certain workplace relations contraventions); or been bankrupt or insolvent under administration (s 7(2)(aa) and note). Ensure coverage extends to events “in Australia or elsewhere.”
• Counts and footprint: prepare counts of existing franchised businesses and franchisees, and counts of businesses owned or operated by the franchisor or an associate in Australia that are substantially the same as the franchised business (s 7(2)(b)). List each State and Territory in which those businesses operate (s 7(2)(c)). Establish and document the internal test for what is “substantially the same” to ensure consistent classification.
• Supply restrictions: describe whether franchisees are restricted in acquiring goods or services from other sources (s 7(2)(d)). If restrictions exist, specify scope and rationale.
• Pre-agreement payments: if the franchisor requires payment before a franchise agreement is entered into, prepare a short statement explaining why the payment is required, how it will be applied, who will hold it, and the refund conditions (s 7(2)(e)). Maintain documentary evidence supporting these statements.