Fair Trading (Farming Industry Dispute Resolution Code) Regulations 2013

The regulations operate by way of statutory prescription of an industry code and by linking breaches of that code to the civil penalty machinery in the Fair Trading Act. The main legal and operational concepts in the text are these.

Industry code prescribed under Part 3A. The code is explicitly prescribed as an industry code for Part 3A of the Act (reg 4(1)). That means the code sits within the statutory regulatory architecture created by the Fair Trading Act rather than being a non‑statutory guideline.

Administration by the Small Business Commissioner. The regulations designate the Small Business Commissioner as the body responsible for administering the code and administering Part 3A in relation to it (reg 4(2)). The Schedule repeatedly refers to “the Commissioner” and to “authorised officers” who act under the Commissioner’s authority (Schedule 1 cl 4(1), (4), (7), (11)).

Civil penalty exposure through s 28E. The regulation ties contraventions of the code to section 28E of the Act, stating that a contravention of section 28E constituted by contravention of the code is subject to civil penalty under Part 7 Division 3A of the Act (reg 5(1)). The text does not reproduce s 28E or Part 7 Division 3A; it records that contraventions of the code may amount to a civil‑penalty contravention under those provisions.

Expiation fees. The regulations set fixed expiation fees for alleged civil‑penalty contraventions constituted by contraventions of the code: $4,000 for a body corporate and $500 for a natural person (reg 5(2)). Those are the stated expiation amounts in the instrument for such alleged contraventions.

Mediation fees and recovery. If an authorised officer arranges mediation with the parties’ agreement, each party must pay $195 per day or part of a day on which mediation occurs (reg 6(1)). The fee is recoverable as a debt due to the Crown (reg 6(2)). The Commissioner may waive the fee in particular cases (reg 6(3)).

Scope terms: “business of primary production” and “participant in the farming industry.” The code defines “business of primary production” broadly to include agriculture, horticulture, viticulture, apiculture, poultry and dairy farming, forestry and other cultivation or rearing activities, as well as propagation or harvesting of aquatic organisms (Schedule 1 cl 2). “Participant in the farming industry” covers persons engaged in primary production, businesses connected to primary production, and suppliers of goods or services supplied in connection with primary production (cl 2).

Application of the code. The code applies to disputes between a participant in the farming industry and another participant or a person to whom goods or services are or may be supplied by the participant, where the dispute is in connection with the acquisition or supply, or potential acquisition or supply, of goods or services relating to primary production (Schedule 1 cl 3).

Alternative dispute resolution and limits. The code contemplates alternative dispute resolution procedures led by an authorised officer. The code expressly excludes arbitration from the meaning of “alternative dispute resolution procedure” (Schedule 1 cl 2). An authorised officer may commence ADR after being satisfied the applicant has made a reasonable attempt to resolve the dispute and that the dispute is not frivolous or vexatious (cl 4(1)). The officer may refer the dispute to mediation or, after consultation, appoint an expert to provide advice (cl 4(7)). Parties must participate and act reasonably and cooperatively, and must not mislead, harass, intimidate or oppress (cl 4(2)-(4)). Requests from authorised officers must generally be complied with within 14 days (cl 4(6)). The officer can suspend or terminate ADR if the dispute is the subject of court/tribunal proceedings, arbitration or another ADR, or if the officer assesses that there is no reasonable prospect of resolution or that the dispute is frivolous or vexatious (cl 4(9)-(10)).

Confidentiality and evidentiary carve out. Communications and documents connected with the ADR are confidential unless the parties and officer agree otherwise (cl 4(12)). However, the officer’s certificate prepared at the end of the procedure may be produced before a court or tribunal (cl 4(11), (13)). The certificate must identify the parties, the nature of the matters in dispute and whether the procedure was terminated without resolution or the terms of any resolution (cl 4(11)).

Cost sharing for experts. Where the Commissioner appoints an expert to provide advice to assist the officer, the parties are equally liable for the costs unless they agree otherwise (cl 4(7)-(8)). That rule fixes a default cost allocation in respect of expert assistance procured under the code.

Time and commencement. The regulations commence on the day made (reg 2). The legislative history records the principal regulation entry: Regulation No 269, Gazette 5.12.2013, which commenced 5 December 2013.

These are the core legal building blocks. Each creates a procedural or financial mechanism that affects incentives: a duty to participate and to comply with reasonable requests (including information exchange), a default equal split of expert costs, recoverable mediation fees per party, and exposure to civil penalties via the Fair Trading Act’s enforcement provisions.

The regulations and the Farming Industry Dispute Resolution Code apply to a defined cohort of market participants and a set of public officers responsible for administration. The text identifies the affected groups and the distinct legal and financial exposures they face.

Participants in the farming industry. The code applies to “participants in the farming industry,” a defined class that includes persons engaged in the business of primary production, businesses connected to primary production and businesses that supply goods or services to primary production where the supply occurs in connection with that business (Schedule 1 cl 2). The definition of “business of primary production” is broad and expressly includes agriculture, pasturage, horticulture, viticulture, apiculture, poultry and dairy farming, forestry and any other business involving cultivation of soils, gathering of crops, rearing of livestock, or propagation or harvesting of fish or other aquatic organisms (cl 2). That means farmers, growers, producers, aquaculturalists and many upstream and downstream suppliers and contractors fall within the code’s scope.

Counterparties to participants. The code applies to disputes between a participant and either another participant or “a person to whom goods or services are or may be supplied by the participant” (Schedule 1 cl 3(a)-(b)). This sweeps in buyers, purchasers, contractors, and potentially prospective customers or suppliers where the dispute is connected to the acquisition or supply, or potential acquisition or supply, of goods or services relating to primary production (cl 3). The instrument therefore affects commercial counterparties beyond primary producers themselves.

Natural persons and bodies corporate. The regulations differentiate the monetary exposure depending on legal form. Expiation fees for alleged civil‑penalty contraventions constituted by contraventions of the code are set at $500 for a natural person and $4,000 for a body corporate (reg 5(2)). Mediation fees, by contrast, are levied on each party irrespective of legal form at $195 per day or part day (reg 6(1)). Parties may be equally liable for expert costs unless they agree otherwise (Schedule 1 cl 4(8)). These provisions create different financial exposures for individuals and companies.

Small Business Commissioner and authorised officers. The Commissioner (the Small Business Commissioner) is assigned responsibility to administer the code and Part 3A in relation to the code (reg 4(2)). The code empowers “authorised officers” acting for the Commissioner to commence ADR procedures, request information from parties, refer disputes to mediation, appoint experts and suspend or terminate procedures in specified circumstances (Schedule 1 cl 4(1), (4), (7), (9)-(10)). The Commissioner and authorised officers are the public decision‑makers whose procedural decisions determine when the code’s obligations bite.

Courts and tribunals. Although not directly regulated by this instrument, the code contemplates interaction with judicial or arbitral processes. An authorised officer may suspend or terminate ADR if the dispute is the subject of proceedings before a court or tribunal, arbitration or another ADR procedure (Schedule 1 cl 4(9)). The officer’s certificate produced at the end of ADR may also be produced in court or tribunal proceedings (cl 4(11), (13)). Those links indicate that parties and their legal advisors, and courts or tribunals that may later hear disputes, are indirectly affected.

Who bears costs in practice. Under the code, each party is liable for mediation fees of $195 per day (reg 6(1)), and parties are equally liable for expert advice costs where the Commissioner appoints an expert unless they arrange otherwise (Schedule 1 cl 4(8)). Fees for mediation are recoverable to the Crown (reg 6(2)) while the Commissioner retains a discretionary waiver power (reg 6(3)). These mechanisms allocate direct monetary costs to private parties but vest collection and waiver discretion with the Crown and Commissioner respectively.

Who faces enforcement exposure. If a party’s conduct in relation to the code constitutes a contravention of section 28E of the Fair Trading Act, the party faces the civil penalty regime set out in Part 7 Division 3A of the Act (reg 5(1)). The instrument thus exposes both natural persons and corporations who fall within the code’s scope to statutory enforcement where the code is contravened in a way that engages section 28E.

In short, the instrument affects primary producers, suppliers and counterparties involved in the supply chain for primary production, imposes procedural duties on them when ADR is invoked by an authorised officer, sets shared and recoverable cost obligations, and engages the civil penalty machinery of the Fair Trading Act for contraventions that amount to s 28E breaches. It also places decision and discretion with the Small Business Commissioner and authorised officers.

The regulations and the Farming Industry Dispute Resolution Code create specific participation duties, conduct obligations, information‑exchange rights for authorised officers, cost‑sharing rules and limited evidentiary and confidentiality arrangements. These are the principal operational obligations and entitlements.

Duty to apply before ADR can be commenced. An authorised officer may commence an alternative dispute resolution procedure only where satisfied, on written application by a party to a dispute to which the code applies, that the applicant has made a reasonable attempt to resolve the dispute and that the subject matter is not frivolous or vexatious (Schedule 1 cl 4(1)). Those two threshold conditions are preconditions to the Commissioner commencing ADR under the code.

Mandatory participation and attendance. Once ADR is commenced under the code, a party to the dispute, or a person authorised in writing to attend or participate on the party’s behalf, must attend or otherwise participate in the procedure as required by the authorised officer (Schedule 1 cl 4(2)). The requirement is framed as an obligation on the parties to participate where ADR has been validly initiated by the authorised officer.

Conduct obligations. Participants in ADR must act reasonably, fairly, honestly and cooperatively, and must not mislead, harass, intimidate or oppress another party (Schedule 1 cl 4(3)(a)-(b)). Those standards set an expected behavioural baseline during ADR; the code ties the behavioural duty directly to participation in the procedure.

Requests for information and other cooperation. An authorised officer may make reasonable requests of participants in connection with attempts to resolve the dispute, including requests to exchange information relevant to the dispute, answer questions, attend meetings and participate in mediation or another ADR form (Schedule 1 cl 4(4)). Participants must comply with such reasonable requests as soon as reasonably practicable, and in the case of a written request, within 14 days of the date of request unless a longer period is allowed by the authorised officer (cl 4(6)). Those provisions create a time‑bound disclosure and cooperation obligation.

Right to require decision‑makers to attend. An authorised officer may request that a participant sends a person who is authorised to resolve the dispute (cl 4(5)). That is, the officer can seek to ensure that someone with authority to settle is present, and the request must be complied with within the timeframes set out (cl 4(6)). This is a mechanism to reduce pointless negotiation with representatives lacking settlement authority.

Referral to mediation and appointment of experts. For the purposes of attempting resolution, the authorised officer may refer the dispute to mediation or, after consulting the parties, appoint someone able to provide expert advice on relevant matters to assist the officer (cl 4(7)). The appointment of experts is a discretionary intervention the officer may take to inject technical or sectoral expertise into the process.

Cost allocation for experts and mediation. Unless the parties agree on a different allocation, the parties are equally liable for the costs of expert advice provided under the officer’s appointment (cl 4(8)). If the authorised officer arranges mediation with the parties’ agreement, each party must pay $195 per day or part day on which the mediation occurs (reg 6(1)). The mediation fee is recoverable as a debt due to the Crown (reg 6(2)), and the Commissioner may waive it if satisfied it is appropriate in a particular case (reg 6(3)).

Suspension and termination rights. The authorised officer may suspend or terminate a dispute resolution procedure if the dispute is the subject of proceedings before a court or tribunal, arbitration or another ADR procedure (cl 4(9)). The officer may also terminate ADR if the officer concludes there is no reasonable prospect of resolving the dispute or that the subject matter is frivolous or vexatious (cl 4(10)). Those clauses give the officer an administrative exit where ADR would be duplicative, futile or abusive.

Certificate, confidentiality and evidentiary use. At the end of ADR, the authorised officer must provide the parties with a certificate stating the names of the parties, the nature of matters in dispute and whether the procedure was terminated without resolution or, if resolved, the terms of the resolution (cl 4(11)). Communications and documents in connection with ADR are confidential unless otherwise agreed in writing between the officer and the parties (cl 4(12)). However, the officer’s certificate may be produced before a court or tribunal (cl 4(13)). That creates an evidentiary exception to the confidentiality regime, while preserving confidentiality for other ADR communications unless parties agree otherwise.

Civil penalty exposure. Contraventions of the code that constitute contraventions of section 28E of the Fair Trading Act are subject to civil penalties under Part 7 Division 3A of the Act (reg 5(1)). The regulations specify expiation fees for alleged contraventions of the code which constitute civil penalty contraventions: $4,000 for a body corporate and $500 for a natural person (reg 5(2)). The instrument does not set the full penalty regime but ties enforcement to the Act’s civil penalty provisions.

Administration duty and waiver power. The Small Business Commissioner is responsible for administration and has discretion to waive mediation fees where the Commissioner is satisfied waiver is appropriate in a particular case (reg 4(2); reg 6(3)). That establishes administrative responsibilities and a specific discretionary relief mechanism.

These duties and rights are expressed as mandatory participation and conduct requirements, time‑limited compliance obligations for information exchange, default cost allocation rules, and enforcement pathways through the Fair Trading Act. The authorised officer’s powers to require decision‑makers, to appoint experts and to suspend or terminate ADR are central levers the Commissioner uses to shape dispute resolution in this sector.

The instrument links contraventions of the Farming Industry Dispute Resolution Code to the Fair Trading Act’s civil penalty framework and imposes specified monetary conditions for mediation and expiation. It also establishes administrative enforcement levers and evidentiary instruments that may be used by courts or tribunals. The enforcement architecture is statutory rather than purely contractual.

Civil penalties via s 28E and Part 7 Division 3A. Regulation 5(1) states that a contravention of section 28E of the Fair Trading Act that is constituted by a contravention of the code is to be subject to a civil penalty under Part 7 Division 3A of the Act. The regulations therefore do not themselves specify penalty quantum beyond expiation fees; they embed enforcement within the Act’s civil‑penalty machinery. The precise content of section 28E and Part 7 Division 3A is not reproduced in this instrument, but the regulation makes clear that breaches of the code that amount to s 28E contraventions attract civil enforcement under the Act.

Specified expiation fees. The regulations establish fixed expiation fees that apply to alleged civil‑penalty contraventions involving contraventions or attempted contraventions of the code: $4,000 for bodies corporate and $500 for natural persons (reg 5(2)). An expiation is an administrative instrument that, according to the text, applies to alleged civil penalty contraventions constituted by code breaches. The regulation treats expiation as the fixed monetary alternative to ongoing civil action, subject to the Act’s procedures.

Recoverable mediation fees. When an authorised officer arranges mediation under the code with the parties’ agreement, each party must pay $195 per day or part of a day on which the mediation occurs (reg 6(1)). That fee is recoverable as a debt due to the Crown (reg 6(2)), which means the Crown has a direct remedial route to collect unpaid mediation fees as debt. The Commissioner may waive the fee in appropriate cases (reg 6(3)), creating a discretionary softening mechanism.

Administrative enforcement powers of authorised officers. The code empowers authorised officers to commence ADR, request attendance and participation, require participants or authorised representatives to be present, request documents and information and, where necessary, suspend or terminate ADR when the dispute is subject to external proceedings, arbitration or another ADR, or the officer concludes there is no reasonable prospect of resolution or that the dispute is frivolous or vexatious (Schedule 1 cl 4(1), (2), (4)-(6), (9)-(10)). Those operational powers allow the Commissioner’s officers to control the progress and scope of ADR and to exit or pause the process to avoid conflict with other forums.

Costs of expert assistance. Where the Commissioner appoints an expert to assist in resolving the dispute, the parties are equally liable for the costs of that expert unless they agree otherwise (Schedule 1 cl 4(7)-(8)). That provision allocates financial liability for expert services and crystalises a private cost obligation that can be enforced through ordinary contractual mechanisms or possibly by debt recovery if unpaid. The code does not specify additional enforcement steps for unpaid expert costs.

Confidentiality and evidentiary use. Communications and documents in connection with ADR are confidential by default unless the authorised officer and parties agree otherwise in writing (Schedule 1 cl 4(12)). However, the authorised officer’s certificate at the completion of ADR may be produced before a court or tribunal (cl 4(11), (13)). The availability of that certificate as admissible in litigation gives enforcement consequences to participation: the outcome, or the fact of termination without resolution, can be presented in other legal forums.

Scope of enforcement reach. The regulations connect code contraventions to the Act’s civil penalty regime, but do not themselves create criminal penalties or specify the full range of remedies available under the Act. They supply expiation amounts for alleged contraventions and set out recoverable mediation fees and cost‑sharing rules for expert appointments. Enforcement therefore operates through a triad: administrative controls by authorised officers, recoverable civil costs and the Fair Trading Act civil penalty apparatus.

In practice, enforcement exposure under this instrument depends on two linked predicates contained in the text: that the party’s conduct contravenes the code and that such contravention constitutes a contravention of section 28E of the Act (reg 5(1)). The instrument does not enumerate the specific acts or omissions that would constitute such a contravention; it locates enforcement within the Act’s broader civil penalty framework, while setting specific monetary figures for expiation and mediation.

The regulations are an exercise of power under the Fair Trading Act 1987 and are designed to operate alongside other legal forums. The text expressly links the code to particular parts of the Act, provides for suspension where other proceedings exist, and contemplates use of the authorised officer’s certificate in judicial proceedings. The instrument therefore sits within a network of statutory and adjudicative processes.

Connection to the Fair Trading Act 1987. The regulations repeatedly reference the Act as their parent statute. Regulation 3 defines “Act” as the Fair Trading Act 1987. The code is prescribed as an industry code for the purposes of Part 3A of the Act (reg 4(1)). Enforcement is tied to the Act’s civil penalty provisions, because a contravention of section 28E of the Act constituted by a contravention of the code is to be subject to a civil penalty under Part 7 Division 3A of the Act (reg 5(1)). The regulations therefore embed the code within the Act’s statutory framework rather than creating an independent parallel regime.

Relationship with court, tribunal and arbitral forums. The code permits an authorised officer to suspend or terminate ADR if the dispute is the subject of proceedings before a court or tribunal, arbitration, or another ADR procedure (Schedule 1 cl 4(9)). That establishes a primacy rule that external adjudicative proceedings can block or halt the Commissioner’s ADR process. Conversely, the authorised officer’s certificate prepared at the end of ADR may be produced before a court or tribunal (cl 4(11), (13)). The code therefore allows evidence of the ADR outcome or its termination to be used in other legal forums.

No change to arbitration. The code expressly excludes arbitration from the definition of “alternative dispute resolution procedure” (Schedule 1 cl 2). That indicates the process contemplated under the code is non‑arbitral and that, where arbitration is invoked, the authorised officer may suspend or terminate the code‑based ADR (cl 4(9)). The instrument does not purport to alter the legal effects of arbitration clauses in contracts or to override statutory arbitration regimes.

Interaction with debt‑recovery and Crown remedies. Mediation fees are recoverable as a debt due to the Crown (reg 6(2)). That provision situates unpaid mediation fees within Crown collection mechanisms rather than leaving them solely to private contractual remedies. The regulations also create expiation fees which function as administrative monetary penalties, operating in the enforcement space between criminal and civil remedies within the Act’s civil penalty framework (reg 5(2)).

Administrative law overlay. The Commissioner’s obligations to administer the code (reg 4(2)) and the authorised officer’s discretion to commence, suspend, terminate and request compliance imply standard public law constraints such as procedural fairness and reasonableness in decision‑making. The regulations do not specify review mechanisms or appeal rights; any review of administrative action by the Commissioner or authorised officers would therefore occur under the general administrative law framework applicable to public decision‑makers, subject to the Act and relevant judicial review principles outside the instrument.

Evidence and confidentiality. The code’s confidentiality rule (Schedule 1 cl 4(12)) operates subject to the evidentiary exception for the authorised officer’s certificate (cl 4(11), (13)). That creates a specific evidential relationship between the code’s ADR process and litigation or tribunal proceedings. The regulations do not, however, specify privilege or other statutory protections beyond the confidentiality default and the certificate exception.

In sum, the instrument operates as a sector‑specific overlay on the Fair Trading Act’s Part 3A and civil penalty machinery, coordinates with courts, tribunals and arbitral forums by permitting suspension where those forums are engaged, and integrates Crown recoverability for mediation fees. Its practical legal effect depends on how authorised officers exercise their statutory powers and how courts treat certificates produced under the code.

The instrument’s legislative history as set out in the text is concise. The regulations are the Fair Trading (Farming Industry Dispute Resolution Code) Regulations 2013. The notes at the end of the instrument record one principal regulation entry.

Commencement details. Regulation 2 states the regulations come into operation on the day on which they are made. The legislative history lists the principal regulations entry as Year 2013, No 269, Gazette 5.12.2013 p4451, with the commencement date recorded as 5 December 2013 (Legislative history; reg 2).

No amendments recorded in the text. The instrument as supplied contains no amending instruments, schedules of amendments or notation of subsequent changes. The legislative history section reproduces the principal regulations entry only and does not list later regulations or amendment numbers. Therefore, within this source, there are no recorded amendments, revocations or modifications to the 2013 regulations.

No repeal or expiry terms. The instrument does not contain any express sunset or expiry clause. It prescribes the code and establishes administrative arrangements and monetary amounts (mediation fee, expiation fees) without time limits. The text does not specify that the code is temporary or subject to automatic review within a fixed period.

Consequences for practitioners. Because the instrument’s textual record contains only the principal regulations entry and commencement date, any later amending instruments or court decisions that changed the operation or interpretation of the regulations would not appear in this source. Users requiring up‑to‑date status should consult the official consolidated legislation register or government gazette to confirm whether the instrument has been amended, repealed, or superseded since the principal regulations entry dated 5 December 2013. The instrument itself provides no transitional or savings provisions; it simply prescribes the code and sets out the operational rules as at commencement.

In short, the regulation record in the supplied source indicates a single principal instrument made in 2013 and commencing 5 December 2013, with no further amendments or repeal entries present in this text.

The supplied instrument does not record any litigation history. It contains the text of the regulations and the Farming Industry Dispute Resolution Code but does not list court decisions, tribunal determinations or judicial interpretations. The Schedule anticipates that certificates produced by authorised officers may be used in court or tribunal proceedings (Schedule 1 cl 4(11), (13)), but the source does not provide any examples of such use.

No judicial pronouncements included. The regulations and the Schedule do not cite, reproduce, or summarise any cases. They make provision for evidentiary use of the authorised officer’s certificate in external proceedings but do not record how courts have treated such certificates or whether courts have enforced contraventions of the code as contraventions of section 28E of the Fair Trading Act. The legislative history section lists only the principal regulation entry and does not include references to case law.

Implication for research and advice. Because no litigation history is supplied in the instrument, practitioners must treat the text as untested by the courts within this source and must search case law databases and tribunal records outside this document to determine how courts and tribunals have interpreted the interaction of the code with section 28E, the weight afforded to authorised officers’ certificates, and the enforceability of mediation or expert costs allocations. The instrument itself indicates potential points that could be litigated,such as whether a particular failure to comply with a request from an authorised officer constitutes a contravention of s 28E,but contains no judicial decisions resolving those questions.

Potential issues likely to have generated litigation. The instrument creates several potential litigation points that courts could be asked to resolve, even though no such rulings are recorded here. Those points include the scope of what constitutes a “reasonable attempt to resolve the dispute” for the purposes of commencing ADR (Schedule 1 cl 4(1)(a)), whether particular conduct during ADR breaches the duty not to mislead or harass (cl 4(3)), the legal effect and admissibility of an authorised officer’s certificate in subsequent litigation (cl 4(11), (13)), and the application of the civil penalty regime where contraventions of the code are alleged to constitute contraventions of section 28E of the Act (reg 5(1)). The instrument itself does not provide judicial answers to those questions.

Summary. The instrument contains no litigation history or judicial interpretations. It establishes procedural and enforcement mechanisms that could be the subject of later litigation, but practitioners must consult external legal databases or tribunal records to find any cases that have interpreted, applied, or challenged the code or the regulations since their commencement in December 2013.

The instrument contains several operational features and drafting choices that produce concrete compliance and strategic risks for parties and advisers. These are the practical traps and points of friction to watch for, based solely on the text.

Mandatory participation after commencement. Once an authorised officer has commenced ADR under the code, parties must attend or otherwise participate as required by the authorised officer (Schedule 1 cl 4(2)). This is not optional participation after a mere invitation; it is a requirement triggered by the officer’s written notice. Parties that fail to attend or participate risk being regarded as non‑compliant with the code, which may give rise to enforcement action if the conduct also constitutes a contravention of section 28E of the Act (reg 5(1)).

Broad information‑exchange and time limits. The authorised officer may require exchange of information and answers to questions relevant to the dispute, and written requests must generally be complied with within 14 days unless the authorised officer allows a longer period (Schedule 1 cl 4(4), (6)). Parties that are unprepared for rapid disclosure requirements may find themselves pressed to produce documents or responses within short statutory timeframes. The obligation to comply “as soon as reasonably practicable” further narrows room for delay.

Request for decision‑makers to attend. The officer may request that a person authorised to resolve the dispute attend (cl 4(5)). Parties that send representatives without actual settlement authority risk the authorised officer requiring a further attendance by an authorised person, which can add time and cost and may be regarded by the officer as uncooperative.

Equal cost allocation for experts by default. If the Commissioner appoints an expert, the parties are equally liable for the expert’s costs unless they agree a different allocation (cl 4(7)-(8)). Small suppliers or individual primary producers may find the equal split burdensome where one party is significantly smaller or less capitalised than the other. The code puts the default onus on parties to negotiate a different apportionment if they want an alternative.

Mediation fees per party and recoverability as Crown debt. Mediation arranged by an authorised officer incurs a per‑party fee of $195 per day or part day (reg 6(1)) and is recoverable as a debt due to the Crown (reg 6(2)). Parties that refuse to pay or underestimate mediation duration may expose themselves to Crown debt recovery. There is a waiver power (reg 6(3)), but it is discretionary and requires the Commissioner to be satisfied waiver is appropriate.

Civil penalty coupling with s 28E. Regulation 5(1) does not mean every procedural breach is automatically a civil penalty. It makes a contravention of s 28E that is constituted by contravention of the code subject to civil penalty. However, the text leaves open the extent and elements of s 28E and the conditions under which a code breach will meet the statutory standard. Practitioners should not assume trivial procedural breaches are necessarily enforceable as civil penalties, but should also not assume immunity; the risk of expiation exists ($4,000 corporate, $500 natural person) where a contravention of the code is treated as constituting a s 28E contravention (reg 5(2)).

Confidentiality but certificate admissible. ADR communications and documents are confidential unless the officer and parties agree otherwise (cl 4(12)). However, the authorised officer’s certificate may be produced in court or tribunal proceedings (cl 4(11), (13)). Parties may therefore be surprised to find that while many ADR communications remain confidential, the existence and outcome of the ADR process itself can become evidence in later litigation via the certificate.

Suspension where other proceedings exist. If the dispute is already before a court, tribunal or in arbitration, the authorised officer may suspend or terminate ADR under the code (cl 4(9)). Parties seeking quick administrative resolution via the Commissioner may be blocked where litigation or arbitration has already commenced. This may create forum‑selection tension between parties wanting ADR and parties who wish to proceed in other fora.

No arbitration in the code. Because the code explicitly excludes arbitration from the meaning of alternative dispute resolution procedure (Schedule 1 cl 2), parties cannot use the Commissioner’s ADR process to obtain an arbitral determination. Where commercial agreements contain arbitration clauses, those clauses may operate to pull matters out of the code’s domain.

Potential mismatch between small mediation fee and equal expert cost allocation. The mediation fee per party is relatively modest ($195 per party per day) but the expert cost allocation default is equal and may be significant. Parties may underestimate total financial exposure if they expect only the per‑party mediation fee rather than possible expert fees.

Discretionary waiver of mediation fee. The Commissioner may waive mediation fees where satisfied waiver is appropriate in a particular case (reg 6(3)). There is no statutory guidance in the instrument about the criteria for waiver. Parties should not assume waiver will be granted and should instead budget for mediation fees unless a documented waiver is obtained.

No internal appeals or review mechanisms specified. The instrument does not specify internal review routes or appeal mechanisms for decisions made by authorised officers under the code. While general administrative law remedies may be available, the code itself provides no appeal right, which can be a procedural surprise.

These “gotchas” derive from the code’s mandatory participation rules, time‑limited disclosure obligations, default cost allocations and the coupling of code breaches to the Act’s civil penalty machinery. Parties and advisers should plan for prompt compliance, cost exposure and the possibility that the officer’s certificate will be used in later proceedings.

Compliance under the regulations requires understanding the code’s preconditions for commencement, the procedural duties once ADR is initiated, the time and cost rules, and the administrative decision points controlled by the Small Business Commissioner and authorised officers. The following practical steps are grounded in the instrument’s provisions.

1. Make a contemporaneous record of pre‑ADR attempts to resolve disputes. An authorised officer will only commence ADR on written application where satisfied the applicant has made a reasonable attempt to resolve the dispute (Schedule 1 cl 4(1)(a)). Parties intending to apply should document attempts at direct negotiation, mediation or other informal resolution so that evidence of those attempts is readily available.

2. Ensure the dispute is not frivolous or vexatious. The Commissioner will decline to commence ADR where the subject matter is frivolous or vexatious (cl 4(1)(b)). Applicants should be prepared to justify the substance of the dispute and present its commercial or legal basis in their written application.

3. Submit a written application and be ready to participate. ADR commences only on written application and a satisfaction exercise by the authorised officer (cl 4(1)). If ADR is commenced, parties must attend or participate as required by the authorised officer (cl 4(2)). Ensure an appropriate representative is prepared to engage in the process.

4. Prepare to provide information and answers on a 14‑day clock. Comply with reasonable requests from the authorised officer to exchange information, answer questions and attend meetings (cl 4(4)). A written request must generally be complied with within 14 days or such longer period as the authorised officer allows (cl 4(6)). Put document and information retrieval systems in order to meet that timetable.

5. Be ready to send someone authorised to settle. The authorised officer may request that a participant sends a person authorised to resolve the dispute (cl 4(5)). If negotiating with junior staff or advisers, confirm in advance whether those representatives have mandate authority or be ready to arrange for a duly authorised decision‑maker to attend on short notice.

6. Budget for mediation fees and possible expert costs. If mediation is arranged by the authorised officer with the parties’ agreement, each party must pay $195 per day or part day (reg 6(1)), recoverable as a debt to the Crown (reg 6(2)). If the officer appoints an expert, the default cost allocation is equal between the parties unless they agree otherwise (cl 4(8)). Parties should budget for both types of costs and secure agreement in writing if they wish a different allocation for expert fees.

7. If cost relief is needed, seek a formal waiver in writing. The Commissioner may waive mediation fees if satisfied it is appropriate in a particular case (reg 6(3)). If a party wishes to avoid mediation fees, it should apply in writing to the Commissioner for waiver with supporting reasons and evidence, rather than relying on an assumption that waiver will follow.

8. Maintain conduct standards during ADR. Participants must act reasonably, fairly, honestly and cooperatively and must not mislead, harass, intimidate or oppress other parties (cl 4(3)). Train representatives and advisers in these behavioural expectations to avoid conduct that could be the basis for enforcement or adverse findings.

9. Preserve confidentiality but manage the certificate risk. Communications and documents connected with ADR are confidential unless otherwise agreed in writing with the authorised officer (cl 4(12)). However, the authorised officer’s certificate may be produced in court or tribunal proceedings (cl 4(11), (13)). Parties should be careful about what is agreed in writing on confidentiality and be aware that the ADR outcome or termination can be evidenced in later litigation through the certificate.

10. Check whether the dispute is already subject to court, tribunal or arbitral proceedings. If so, the authorised officer may suspend or terminate ADR (cl 4(9)). Where litigation or arbitration has commenced, weigh the costs and benefits of pursuing ADR before or after that process. If you intend to rely on arbitration clauses, note the code excludes arbitration from “alternative dispute resolution procedure” (cl 2), and the authorised officer can decline or suspend ADR if arbitration is underway.

11. Keep contemporaneous records of compliance with officer requests. Because compliance requests must be met promptly and because non‑compliance can have enforcement consequences, document responses to information requests, attendance at meetings and the provision of expert evidence or submissions.

12. If faced with an expiation notice or alleged civil penalty contravention, seek legal advice promptly. Regulation 5(1) and (2) link contraventions of the code that constitute s 28E contraventions to the Act’s civil penalty regime and specify expiation fees ($4,000 corporate; $500 natural person). Early legal advice will be needed to assess whether the alleged conduct meets the statutory elements of s 28E and whether to pay an expiation fee or contest it under the Act’s procedures.

13. Consider negotiating a written agreement about cost apportionment and confidentiality before ADR commences. Parties may agree in writing to allocate expert costs differently from the default equal split and to vary the confidentiality regime (cl 4(8), (12)). Documents agreeing these allocations should be signed and lodged with the authorised officer to avoid disputes about cost liability later.

14. Be aware of administrative review options outside the instrument. The code does not set out internal appeals or administrative review procedures. If a party is aggrieved by an authorised officer’s decision, consider administrative law remedies outside the code, while noting that the instrument itself confers specific operational powers on the Commissioner and authorised officers.

Following these steps aligns operational practice with the instrument’s textual obligations: preparing written evidence of attempts to resolve disputes, responding quickly to officer requests, arranging appropriately authorised participants, budgeting for fees and expert costs, and treating the authorised officer’s certificate as potentially admissible in later proceedings.