Fair Trading (Mining and Resources Industry Land Access Dispute Resolution Code) Regulations 2018

The Regulations rely on a small set of definitional and procedural concepts that determine scope, process and sanction.

Industry and participants. Regulation 4 constructs an industry for Part 3A purposes by reference to activities on or in relation to land used for primary production: mining operations under the Mining Act 1971, and regulated activities under the Petroleum and Geothermal Energy Act 2000 (r 4(a)). The participants taken to be in that industry are mining operators, petroleum licence-holders and farmers (r 4(b)). The Regulations also import a defined list of what constitutes the “business of primary production” in r 3 (agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry and other cultivation of soil, crops, livestock and propagation or harvesting of fish or other aquatic organisms).

Code and commissioner. The phrase “code” in these Regulations denotes the Mining and Resources Industry Land Access Dispute Resolution Code 2018 in Schedule 1 (r 3). The Small Business Commissioner is the officer responsible for administration of the code and Part 3A insofar as it applies to this industry (r 5(2)). The Commissioner is thus the gatekeeper for initiation and oversight of the ADR process under the code.

Authorised officer and alternative dispute resolution procedure. The Schedule repeatedly uses the term authorised officer for the official who conducts or commences alternative dispute resolution procedures under the code (Schedule 1 cl 4). The Schedule defines “alternative dispute resolution procedure” only by exclusion: it does not include arbitration (Schedule 1 cl 2). The code empowers an authorised officer, once the Commissioner is satisfied on written application that the applicant has made reasonable attempts to resolve the dispute and the subject matter is not frivolous or vexatious, to notify the parties that the officer is commencing an ADR procedure (cl 4(1)). If ADR is commenced, participation and cooperation by the parties or authorised representatives is mandatory as required by the authorised officer (cl 4(2)-(4)).

Participation duties. Schedule 1 imposes behavioural and procedural duties on participants: act reasonably, fairly, honestly and cooperatively and not to mislead, harass, intimidate or oppress (cl 4(3)); comply with reasonable requests from the authorised officer to exchange information, answer questions, attend meetings or participate in mediation (cl 4(4)); and comply with requests to have a person attend who is authorised to resolve the dispute (cl 4(5)). Written requests must be complied with “as soon as reasonably practicable” and, in any event, within 14 days unless extended by the authorised officer (cl 4(6)).

Discretions for resolution and costs. An authorised officer may refer the dispute to mediation or, after consultation with the parties, appoint an expert to assist (cl 4(7)). Costs of expert advice are borne equally by the parties unless the parties agree otherwise (cl 4(8)). The authorised officer may suspend or terminate the ADR if the dispute is the subject of court/tribunal proceedings, arbitration or another ADR (cl 4(9)), or terminate if there is no reasonable prospect of resolution or the subject matter is frivolous or vexatious (cl 4(10)).

Confidentiality and certificates. Communications and documents made in connection with ADR under the code are confidential unless the authorised officer and parties agree otherwise in writing (cl 4(12)). The authorised officer must provide a certificate after completion indicating parties’ names, nature of the dispute and whether it was terminated without resolution or, if resolved, the terms of resolution (cl 4(11)). That certificate, despite general confidentiality, may be produced before a court or tribunal (cl 4(13)).

Civil penalties and fee mechanics. The Regulations make contraventions of the code that amount to contraventions of s 28E of the Fair Trading Act subject to civil penalties under Part 7 Division 3A of the Act (r 6(1)). The instrument sets expiation fees for alleged contraventions involving the code (r 6(2)), and prescribes mediation fees, their recovery as a debt to the Crown (r 7(1)-(2)), and a discretionary waiver power granted to the Commissioner for such mediation fees (r 7(3)).

Together these concepts create a regime where the Small Business Commissioner and authorised officers initiate and manage non‑arbitral ADR between farmers and mining interests about access to primary production land, with mandatory participation duties, limited confidentiality, a certificate that is admissible in court, prescribed costs and civil‑penalty exposure for breaches of the code as linked to the Fair Trading Act.

The Regulations specify a narrow universe of affected actors and a few public authorities who exercise gatekeeping and enforcement functions.

Direct private parties. The code applies only to disputes between a farmer and “1 or more mining operators” or the holder(s) of a licence under the Petroleum and Geothermal Energy Act 2000 in relation to access to land used by the farmer for primary production (Schedule 1 cl 3). That means the expressly covered private parties are:

• farmers, as defined in r 3 (a person engaged in the business of primary production);
• mining operators, as defined in the Mining Act 1971 (r 3 defines “mining operations” and “mining operator” by reference to that Act); and
• petroleum licence-holders under the Petroleum and Geothermal Energy Act 2000 (r 3 uses “regulated activities” and “licensees” as defined in that Act).

The instrument therefore does not, on its face, include disputes that involve non-farming landholders, occupiers who are not engaged in primary production, mining or petroleum participants who do not fall under the specified definitions, or disputes that do not concern access to land used for primary production.

Public authorities and roles. The Small Business Commissioner is the administering authority for the code and for Part 3A as it applies to this industry (r 5(2)). The Schedule contemplates authorised officers who conduct ADR procedures (Schedule 1 cl 4). The Commissioner must be satisfied, on written application by a party, that the applicant has made reasonable attempts to resolve the dispute and that the dispute is not frivolous or vexatious before an authorised officer may be notified to commence ADR (cl 4(1)). This creates a role division where the Commissioner screens and designates matters for ADR and authorised officers operate the ADR process.

Who pays. The Regulations impose specific monetary liabilities:

• Expiation fees for alleged civil penalty contraventions involving the code are $4,000 for a body corporate and $500 for a natural person (r 6(2)). The Regulations identify these as the expiation fee in relation to civil penalty contraventions involving the code , they are not described as criminal fines but as expiation amounts related to civil penalty contraventions under the Act.
• If an authorised officer arranges mediation with the parties’ agreement under the code, each party must pay $195 for each day, or part of a day, on which mediation occurs (r 7(1)). That fee is recoverable as a debt to the Crown (r 7(2)). The Commissioner may waive the fee in particular cases (r 7(3)).
• Where an authorised officer appoints an expert to assist the officer, the parties are equally liable for the expert’s costs unless they agree a different split (Schedule 1 cl 4(7)-(8)).

Obligations and risk-bearing. Parties to a code-based ADR face mandatory participation duties if ADR is commenced (cl 4(2)), obligations to act reasonably and not mislead or oppress (cl 4(3)), and obligations to comply with reasonable requests, including exchange of information and attendance, within specified timeframes (cl 4(4)-(6)). Failure to comply with the code can amount to a civil penalty contravention under the Fair Trading Act (r 6(1)), exposing corporate and natural persons to statutory expiation fees (r 6(2)) and to enforcement under Part 7 Division 3A of the Act.

Indirectly affected actors. Experts appointed to assist an authorised officer are engaged as part of ADR and their costs are borne by the parties (Schedule 1 cl 4(7)-(8)). Representatives authorised in writing to participate on behalf of a party are explicitly recognised by cl 4(2). Courts and tribunals are implicated only insofar as ADR may be suspended/terminated if the dispute is before a court or tribunal (cl 4(9)) and because the authorised officer’s certificate may be produced before a court or tribunal despite general confidentiality (cl 4(13)).

In short, the regime places most procedural duties, cost risks regarding mediation and expert assistance, and potential civil-penalty exposure on the private parties to access disputes (farmers and mining/petroleum participants), with administrative control resting with the Small Business Commissioner and authorised officers.

The Regulations and the Schedule establish specific mandatory duties for parties and corresponding rights and discretions for the Commissioner and authorised officers.

Duties of applicants before ADR can commence. A written application is required to trigger the Commissioner’s consideration (Schedule 1 cl 4(1)). The Commissioner must be satisfied that the applicant has made a reasonable attempt to resolve the dispute and that the subject matter is not frivolous or vexatious before an authorised officer may be directed to commence ADR (cl 4(1)). The code therefore places a pre-commencement duty on applicants to demonstrate prior attempts at resolution.

Mandatory participation. Once the authorised officer notifies the parties that ADR is commencing, parties or persons authorised in writing to act on their behalf must attend or otherwise participate as required by the authorised officer (cl 4(2)). That is a compulsory process participation duty; attendance or participation is required by the authorised officer’s directions.

Behavioural duties during ADR. Participants must act reasonably, fairly, honestly and cooperatively, and must not mislead, harass, intimidate or oppress another party (cl 4(3)). These are conduct standards that bind participants while ADR is underway.

Obligation to comply with reasonable requests. Persons participating must comply with any reasonable request from the authorised officer in connection with ADR. The schedule lists illustrative requests that are expressly contemplated: exchange information relevant to the dispute, answer questions on relevant matters, attend meetings, and participate in mediation or another form of ADR (cl 4(4)). The authorised officer may also request that a person participating in the procedure be someone authorised to resolve the dispute (cl 4(5)). Written requests must be complied with as soon as reasonably practicable and, in any event, within 14 days unless the authorised officer allows a longer period (cl 4(6)). These provisions create specific time and disclosure obligations during ADR.

Financial duties. Parties are equally liable for costs of expert advice appointed by the authorised officer to assist the officer unless they agree otherwise (cl 4(8)). Where mediation is arranged by an authorised officer with parties’ agreement, each party must pay $195 per day or part day (r 7(1)). That mediation fee is a statutory obligation that is recoverable as a debt to the Crown (r 7(2)), subject to the Commissioner’s discretionary power to waive the fee in an individual case (r 7(3)). Separately, contravention of the code that constitutes a contravention of s 28E of the Fair Trading Act attracts the civil penalty regime under Part 7 Division 3A of the Act (r 6(1)) and set expiation amounts are prescribed (r 6(2)).

Authorised officer discretions and rights. The authorised officer may:

• commence ADR after the Commissioner’s satisfaction on application (cl 4(1));
• require attendance/participation and compliance with requests (cl 4(2)-(6));
• refer the dispute to mediation (cl 4(7)(a)); or appoint an expert after consultation with the parties to assist the officer (cl 4(7)(b));
• suspend ADR while the dispute is before a court, tribunal, arbitration or another ADR (cl 4(9));
• terminate ADR if there is no reasonable prospect of resolving the dispute or if the subject matter is frivolous or vexatious (cl 4(10)); and
• provide a completion certificate which records the existence and outcome of ADR, or that it was terminated without resolution (cl 4(11)).

Confidentiality right and its limitation. Communications and documents created in connection with ADR are confidential unless the authorised officer and the parties agree otherwise in writing (cl 4(12)). However, the completion certificate may be produced before a court or tribunal (cl 4(13)). That creates a right to confidentiality for most ADR material with a specific statutory exception for the authorised officer’s certificate.

Right to cost apportionment agreement. Parties have the implicit right to agree a different apportionment of expert costs than the default equal split (cl 4(8)). The authorised officer offers a consultative role before appointment of an expert (cl 4(7)(b)).

Enforcement rights. The Commissioner has a discretionary waiver power for mediation fees (r 7(3)). The Crown has a statutory right to recover unpaid mediation fees as a debt (r 7(2)). The Fair Trading Act’s civil penalty machinery under Part 7 Division 3A is the enforcement mechanism for code contraventions designated as contraventions of s 28E (r 6(1)); the Regulations set the expiation amounts for alleged contraventions (r 6(2)).

In short, private parties carry duties of pre‑application effort, compulsory participation and cooperation, financial liability for mediation and expert costs, and conduct obligations during ADR, while the Commissioner and authorised officers hold gatekeeping, procedural and termination discretions, and the Crown holds debt recovery rights for unpaid mediation fees. The certificate mechanism limits confidentiality by creating a pathway for ADR outcomes or non‑resolution to be presented in court.

The Regulations create two connected enforcement strands: civil‑penalty exposure for contravention of the code as tied to the Fair Trading Act, and recovery mechanisms for mediation fees and expert costs.

Civil penalties and expiation amounts. Regulation 6(1) makes a contravention of the code that constitutes a contravention of section 28E of the Fair Trading Act subject to civil penalties under Part 7 Division 3A of the Act. The Regulations therefore incorporate the Act’s civil penalty regime as the enforcement instrument against contraventions of the code that amount to s 28E contraventions. Regulation 6(2) prescribes expiation fees for an alleged civil penalty contravention involving an alleged contravention or attempted contravention of the code: $4,000 for a body corporate and $500 for a natural person. The text frames those amounts as the expiation fee for an alleged civil penalty contravention that involves the code; it does not in itself describe the procedural steps under Part 7 Division 3A, but makes clear that the civil penalty machinery of the Act applies to code breaches (r 6(1)-(2)).

Fee recovery and waiver for mediation. Regulation 7 creates a statutory fee for mediation arranged by an authorised officer with the parties’ agreement: each party must pay $195 for each day or part of a day on which mediation occurs (r 7(1)). That fee is recoverable as a debt due to the Crown (r 7(2)). The Commissioner may waive the fee if satisfied that it is appropriate in a particular case (r 7(3)). The combination of an express fee and recoverability as a debt gives the Crown a civil avenue to recover mediation costs from non‑paying parties, with an administrative discretion to relieve parties in specified circumstances.

Cost allocation for expert advice. When an authorised officer appoints an expert to assist (Schedule 1 cl 4(7)(b)), the default rule is equal liability by the parties for the expert’s costs unless they agree a different apportionment (cl 4(8)). That is not framed as an enforceable statutory debt to the Crown; it allocates cost responsibility between the parties, and non‑payment would be a private contractual or debt issue between parties, except where other enforcement mechanisms under the Act or general law apply. The schedule does not specify enforcement mechanisms for unpaid expert fees; it only establishes the default apportionment.

Obligations and potential penal consequences. Participants who are required to attend or otherwise participate must do so as directed by the authorised officer (cl 4(2)). The schedule sets behavioural duties , act reasonably, fairly, honestly and cooperatively, and not mislead, harass, intimidate or oppress (cl 4(3)) , and requires compliance with reasonable requests from the authorised officer, including exchange of information and attendance at meetings (cl 4(4)). Because breach of the code can be a civil penalty contravention under r 6(1) if it constitutes a contravention of s 28E of the Act, non‑compliance with these duties may expose a party to civil penalty proceedings under the Act. The Regulations themselves do not set out the procedural details of how Part 7 Division 3A operates; they designate that regime as the enforcement path.

Interplay with court processes and ADR suspension. An authorised officer may suspend or terminate ADR if the dispute is the subject of court or tribunal proceedings, arbitration, or another ADR (cl 4(9)). Termination also follows if the authorised officer forms the view there is no reasonable prospect of resolution or that the dispute is frivolous or vexatious (cl 4(10)). The authorised officer must provide a certificate after completion or termination, and that certificate can be produced before a court or tribunal (cl 4(11), (13)). The ability to produce the certificate before a court means ADR outcomes and the fact of termination or resolution may form part of subsequent adjudicative processes; confidentiality is limited by that exception (cl 4(12)-(13)).

Practical enforcement consequences. The practical enforcement regime therefore combines:

• statutory civil‑penalty exposure under the Fair Trading Act (r 6(1));
• fixed expiation amounts for alleged contraventions involving the code (r 6(2));
• cost recovery by the Crown of mediation fees (r 7(1)-(2));
• discretionary waivers for mediation fees (r 7(3)); and
• a certificate that may be deployed in court or tribunal proceedings (cl 4(11), (13)).

The Regulations do not themselves set criminal penalties or specify the full procedural route for seeking civil penalties; they refer enforcement to the Fair Trading Act’s civil penalty division for substantive enforcement action.

The Regulations deliberately weave definitions and enforcement into existing South Australian statutes; the text makes explicit cross‑references and exclusions.

Fair Trading Act 1987. These Regulations operate under the Fair Trading Act 1987, and directly engage Part 3A and Part 7 Division 3A of that Act. Regulation 4 prescribes the industry and participants for the purposes of Part 3A. Regulation 5 prescribes the code as an industry code for the purposes of Part 3A and assigns responsibility for its administration to the Small Business Commissioner (r 5(1)-(2)). Regulation 6(1) ties a contravention of the code that constitutes a contravention of section 28E of the Act to the civil penalty regime under Part 7 Division 3A. The Regulations therefore do not create a standalone penalty regime; they incorporate the Act’s Part 7 Division 3A civil penalty architecture.

Mining Act 1971. The Regulations import the meanings of “mining operations” and “mining operator” from the Mining Act 1971 by stating that those terms “have the same meaning as in the Mining Act 1971” (r 3). That means the scope of who is a mining operator and what counts as mining operations under these Regulations is determined by the definitions in the Mining Act 1971.

Petroleum and Geothermal Energy Act 2000. Similarly, the Regulations import the meaning of “regulated activities” from the Petroleum and Geothermal Energy Act 2000 (r 3). Regulation 4(a)(ii) prescribes that regulated activities carried out pursuant to a licence under that Act, when they occur on or in relation to land used for primary production, form part of the prescribed industry, and r 4(b)(ii) treats licensees under that Act as industry participants. Therefore the definitions and licensing contours in the Petroleum and Geothermal Energy Act 2000 determine who and what is captured in disputes under this code.

Civil debt and Crown recovery. Regulation 7(2) makes mediation fees recoverable as a debt due to the Crown. That expressly ties fee recovery to general debt recovery processes available to the Crown , administrative recovery or civil proceedings to recover a debt , and thereby intersects with the law and procedures for recovery of debts owed to the Crown.

Arbitration, court and tribunal proceedings. The Schedule expressly states that “alternative dispute resolution procedure does not include arbitration” (Schedule 1 cl 2). The authorised officer may suspend or terminate ADR if the dispute is the subject of proceedings before a court or tribunal, arbitration, or another ADR (cl 4(9)). The authorised officer’s certificate is admissible before court or tribunal (cl 4(13)), which means the code’s outputs can be invoked in other legal processes. The Regulations therefore carve out arbitration from the defined ADR under the code while expressly permitting suspension where arbitration or court proceedings are already on foot.

Confidentiality and admissibility. The code provides confidentiality for communications or documents prepared in connection with ADR unless the authorised officer and parties agree otherwise (cl 4(12)). The exception permitting the authorised officer’s certificate to be produced before a court or tribunal (cl 4(13)) creates a specific statutory exception to the general confidentiality rule. That exception interacts with rules of evidence and court practice: while communications are generally confidential under the code, the certificate is admissible.

Cost allocation and private law claims. The code’s allocation of expert costs between parties (cl 4(8)) sets a default contractual or statutory expectation of cost-sharing. The Regulations do not set out enforcement mechanisms for non‑payment of expert fees beyond commercial remedies; where one party refuses to pay its share, the other party or the expert may need to pursue the debt through ordinary civil process unless the fee is captured by some other Crown recovery mechanism. The code does not create a direct power for the Commissioner to compel private collection beyond debt recovery to the Crown for mediation fees.

In sum, the Regulations do not exist in isolation. They depend on operational definitions and enforcement apparatus in the Fair Trading Act 1987, the Mining Act 1971 and the Petroleum and Geothermal Energy Act 2000. They exclude arbitration from the ADR they create, allow suspension where other adjudicative processes are engaged, and make specific procedural elements (the certificate, mediation fee recovery) interact directly with court admissibility and Crown debt recovery mechanisms.

The instrument includes a concise legislative history and no recorded amendments in the text provided.

• Date of making and commencement. The Regulations were made and came into operation on 29 November 2018 (Principal regulations Year 2018 No 231; Gazette 29.11.2018 p 4096; r 2). Regulation 2 states that they come into operation on the day on which they are made.

• Principal regulations entry. The Legislative history section records the principal regulations as 2018, No 231, with the Gazette citation and the commencement date as 29.11.2018 (Legislative history; Notes at end).

• No subsequent amendments recorded. The text of the Regulations and Schedule includes no amendments, repeal provisions or transitional provisions. The Legislative history and Notes provided do not list any later amending instruments or changes to the Regulations. The Schedule is printed as the Mining and Resources Industry Land Access Dispute Resolution Code 2018, and no amending instruments are recorded in the material supplied.

• Relationship to the act. The Regulations are subordinate legislation made under the Fair Trading Act 1987 and explicitly tie their operation to the Act (r 3 definition of Act, r 5 referencing Part 3A). Any amendment to the Regulations would proceed through the usual subordinate‑legislation processes under the enabling Act and the South Australian statute‑making rules; none are recorded in the supplied text.

For users seeking to know whether the Regulations have been amended after the principal 2018 instrument, this document contains no subsequent amending entries. Any current or later amendments would need to be checked against the official statutory database or the Gazette entries after the date recorded here.

The Regulations and Schedule as supplied do not record any judicial decisions, prosecutions or tribunal determinations concerning the code or these Regulations. The instrument contains no case citations, litigated examples, or references to decisions under Part 7 Division 3A of the Fair Trading Act. The only references to adjudicative processes are procedural: the authorised officer may suspend or terminate ADR if the dispute is the subject of proceedings before a court or tribunal, arbitration or another ADR (Schedule 1 cl 4(9)), and an authorised officer’s certificate may be produced before a court or tribunal (cl 4(13)).

What the Regulations do signal about future litigation pathways, without providing case law, is:

• Enforcement route. The Regulations make contraventions of the code that constitute contraventions of s 28E of the Fair Trading Act subject to civil penalties under Part 7 Division 3A of the Act (r 6(1)). Any civil penalty proceedings will therefore be brought under the procedures and case law (if any) relevant to that Part of the Act. The Regulations do not summarize or restate Part 7 Division 3A procedures, and no cases are named in the instrument.

• Admissibility of certificates. The authorised officer’s certificate, produced after ADR completion or termination, is explicitly admissible before courts or tribunals (cl 4(13)). That creates a predictable evidentiary pathway by which ADR outcomes or the fact of termination might be used in subsequent litigation or tribunal proceedings, but the text does not provide judicial interpretation of how courts will weigh such certificates.

• Confidentiality limitation. Although ADR communications are confidential unless otherwise agreed in writing (cl 4(12)), the certificate exception (cl 4(13)) means that at least a formal record of the ADR process and outcome is not excluded from court or tribunal consideration.

Because no litigation is recorded in the text, users must treat litigation‑related topics as prospective: any interpretation of how courts will apply or enforce the code or the Fair Trading Act’s civil penalty provisions in this context will have to await actual cases under Part 7 Division 3A or challenges that involve the admissibility and weight of authorised officer certificates.

The Regulations contain several textual features that create practical hazards or tight points of operation for parties and advisers. These are matters to watch closely because they follow directly from the drafting.

1. Narrow statutory scope. The code applies only to disputes between a farmer and a mining operator or petroleum licence-holder about access to land used by the farmer for primary production (Schedule 1 cl 3). If the land is not “used… for the business of primary production” as defined (r 3), or the landholder is not a “farmer” by that definition, the code does not apply. Parties should not assume the code automatically covers all land‑access conflicts involving mines or petroleum activities.

2. Pre‑application screening requirement. The Commissioner will only allow an authorised officer to commence ADR if satisfied the applicant has made a reasonable attempt to resolve the dispute and the dispute is not frivolous or vexatious (cl 4(1)). Applications therefore require evidence of prior attempts at resolution; an inadequately documented application can be rejected at the threshold.

3. Mandatory participation and time pressure. Once ADR is engaged, attendance or participation is mandatory as required by the authorised officer (cl 4(2)). Written requests from the authorised officer must be complied with “as soon as reasonably practicable” and, in any event, within 14 days unless extended (cl 4(6)). That 14‑day clock can be tight for gathering records, instructing authorised representatives, or securing persons who have authority to resolve the dispute.

4. Authorised representative must be in writing. The Schedule permits a person authorised in writing to attend or participate on a party’s behalf (cl 4(2)). If a party intends a representative to attend, the written authorisation should be prepared and available; otherwise the authorised officer may demand the presence of someone authorised to resolve the dispute (cl 4(5)).

5. Confidentiality limited by the certificate. The code makes ADR communications generally confidential (cl 4(12)), but the authorised officer’s certificate is admissible in court or tribunal (cl 4(13)). Parties should therefore expect that the fact of ADR having occurred and its terms (if resolved) or the fact it was terminated without resolution can be put before a court. Confidentiality is not an absolute bar to future litigation use.

6. Equal liability for expert costs by default. If the authorised officer appoints an expert, parties are equally liable for the expert’s costs unless they agree otherwise (cl 4(7)-(8)). No mechanism for recovering a defaulting party’s share from the Crown is set out; parties need to document cost‑sharing agreements or be prepared to bear cost risk.

7. Fee recovery as a Crown debt. Mediation fees are statutory and recoverable as a debt to the Crown ($195 per party per day: r 7(1)-(2)). Non‑payment can therefore lead to Crown debt recovery procedures rather than purely contractual remedies, and the Commissioner’s waiver power is discretionary (r 7(3)). Parties should not assume fee waivers will be automatic.

8. Civil penalty exposure linked to s 28E. The text says contravention of the code that constitutes a contravention of section 28E of the Fair Trading Act is subject to civil penalties under Part 7 Division 3A (r 6(1)). The Regulations do not replicate s 28E, so parties must check the Act for precise conduct that constitutes a contravention and the procedural consequences under Part 7 Division 3A. This linkage can create unexpected civil‑penalty risk for what might otherwise be considered routine ADR non‑compliance.

9. ADR excludes arbitration. The Schedule expressly excludes arbitration from its meaning of alternative dispute resolution (cl 2). Parties who have chosen arbitration or who expected arbitration as part of their commercial arrangements will not have arbitration conducted by an authorised officer under this code; the authorised officer may suspend ADR if arbitration is on foot (cl 4(9)).

10. Grounds for termination. The authorised officer may terminate ADR if there is no reasonable prospect of resolution or the subject matter is frivolous or vexatious (cl 4(10)). That is a subjective decision for the officer and can cut short ADR where the officer considers resolution unlikely, potentially driving parties into other forums.

11. Who pays the expiation fee. The expiation fees differ by corporate form: $4,000 for bodies corporate and $500 for natural persons (r 6(2)). Those are fixed statutory amounts for the alleged civil penalty contravention involving the code; parties need to be aware of the differential exposure by entity type.

12. Little detail on enforcement procedure. While the Regulations reference Part 7 Division 3A for civil penalties and make mediation fees a Crown debt, they do not spell out timelines, appeal routes, or administrative processes. Advisers must consult the Fair Trading Act and applicable procedural rules to understand enforcement pathways.

These drafting details create procedural and cost risks for parties and highlight the need to carefully document pre‑application resolution attempts, to prepare written authorisations for representatives, to budget for mediation and expert costs, and to be ready for the authorised officer’s timeframes and discretionary decisions.

Compliance under these Regulations requires attention to pre‑application evidence, procedural obligations during ADR, cost liabilities, and awareness of enforcement exposure. The following set of practical steps follows directly from the statutory text.

1. Confirm coverage. Before taking any step under the code, verify that the dispute falls within the code’s scope: it must be a dispute between a farmer and one or more mining operators or a holder of a petroleum licence, and the dispute must be about access to land used by the farmer for the business of primary production (Schedule 1 cl 3). Check that the parties fit the definitions imported from the Mining Act 1971 and the Petroleum and Geothermal Energy Act 2000 (r 3).

2. Document prior attempts to resolve. The Commissioner will not direct an authorised officer to commence ADR unless satisfied, on written application, 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)). Prepare and lodge a written application that sets out with documentary support the steps taken to resolve the matter before applying to the Commissioner.

3. Use written authorisations for representatives. If a party intends to have a representative attend or participate, provide a written authorisation for that person. The schedule permits participation by another person “authorised in writing to attend or participate on the party’s behalf” (cl 4(2)). Keep the written authority available to present to the authorised officer.

4. Prepare to participate and comply with reasonable requests. If ADR is commenced, attendance and participation are mandatory as required by the authorised officer (cl 4(2)). Parties must act reasonably, fairly, honestly and cooperatively and must not mislead, harass, intimidate or oppress (cl 4(3)). Expect requests to exchange information, answer questions, attend meetings or participate in mediation (cl 4(4)). Where written requests are made, compliance is required “as soon as reasonably practicable” and, in any event, within 14 days unless the authorised officer allows otherwise (cl 4(6)). Establish internal processes to assemble relevant documents quickly and to obtain necessary instructions within those timeframes.

5. Ensure authorised decision‑makers attend if requested. The authorised officer may request that a person participating be authorised to resolve the dispute (cl 4(5)). Where commercial settlements or undertakings are possible outcomes, guarantee that someone with settlement authority is available or that the party provides an authorised delegate in writing.

6. Budget for fees and expert costs. If mediation is arranged by an authorised officer with the parties’ agreement, each party must pay $195 for each day or part day of mediation (r 7(1)). That fee is recoverable as a debt to the Crown (r 7(2)); the Commissioner may waive it in particular cases (r 7(3)). If an authorised officer appoints an expert, parties are equally liable for the costs unless they agree another split (Schedule 1 cl 4(7)-(8)). Agree cost apportionments in writing where possible to avoid later disputes.

7. Preserve confidentiality but expect the certificate to be admissible. Treat communications and documents prepared for ADR as confidential in line with cl 4(12). However, be aware that the authorised officer must provide a certificate upon completion and that the certificate may be produced in court or tribunal proceedings (cl 4(11), (13)). Protect privileged material and consider legal issues around disclosure separately; gather documentary evidence of confidentiality undertakings and consider what should be included in any record or settlement.

8. Avoid conduct that could constitute a contravention. The Regulations make contravention of the code that constitutes a contravention of s 28E of the Fair Trading Act subject to civil penalties under Part 7 Division 3A (r 6(1)). While the Regulations do not restate s 28E, ensure conduct in ADR complies with the code’s behavioural duties (cl 4(3)-(4)) and the Fair Trading Act’s requirements to limit risk of a civil penalty proceeding or expiation notice ($4,000 for a body corporate; $500 for a natural person, r 6(2)).

9. Anticipate suspension where litigation or arbitration exists. If the dispute is the subject of proceedings before a court or tribunal, arbitration or another ADR, the authorised officer may suspend or terminate ADR (cl 4(9)). If you are involved in litigation or arbitration, coordinate approaches so as not to trigger suspension and to align strategic timelines.

10. Keep records to support future use of the authorised officer’s certificate. Because the authorised officer’s certificate can be produced in court or tribunal proceedings (cl 4(13)), maintain records of the ADR process, settlement terms, representations and any reasons given for termination. The certificate must set out the names of the parties, the nature of the matters in dispute, and either the terms of resolution or that the procedure was terminated without resolution (cl 4(11)).

11. Seek clarity on enforcement and procedural steps under the Fair Trading Act. Because contraventions are referred to Part 7 Division 3A of the Fair Trading Act (r 6(1)), review the Act’s procedures for civil penalty proceedings, expiation notice processes, and appeals to ensure compliance planning aligns with enforcement exposure.

12. If fee waiver is necessary, make a reasoned submission. The Commissioner may waive mediation fees in particular cases (r 7(3)). If fee waiver is sought, prepare a written submission explaining why waiver is appropriate, with supporting evidence, and lodge it promptly, as waiver is discretionary.

Following these steps will align practice with the procedural and substantive obligations created by the Regulations and the code. The essential compliance logic is to document pre‑application resolution efforts; be ready to participate and to respond to authorised officer requests within short timeframes; budget for mediation and expert costs; and protect records because the authorised officer’s certificate can be used in later proceedings.