Fair Trading (Newsagency Industry Dispute Resolution Code) Regulations 2014

The instrument hinges on a small set of legal and administrative concepts drawn from the Fair Trading Act and spelled out in the Schedule. Key concepts are: prescribed industry code, participant in the newsagency industry, alternative dispute resolution procedure (ADR) as distinct from arbitration, authorised officer, reasonable attempt to resolve, confidentiality subject to production in court, and civil penalty contravention.

Prescribed industry code: The regulations make the Newsagency Industry Dispute Resolution Code a prescribed industry code under Part 3A of the Fair Trading Act (reg 4(1)). That links the code to the Act’s compliance and enforcement machinery, in particular s 28E (referenced in reg 5(1)) and the civil penalty regime in Part 7 Division 3A of the Act.

Participant in the newsagency industry: The Schedule defines who falls within the code’s operational scope. A participant includes someone carrying on a newsagency business (primary purpose: acquiring, selling or distributing newspapers or magazines), a business having a connection to a newsagency business, or a person who in the course of business supplies goods or services to newsagency businesses (Schedule cl 2). The definition is deliberately broad to capture operators, connected businesses and suppliers.

Alternative dispute resolution procedure (ADR): The Schedule states that ADR does not include arbitration (cl 2). ADR under the code therefore covers mediation and other non-arbitral forms of dispute resolution that an authorised officer may commence (cl 4(1)-(7)).

Authorised officer and the Commissioner: The Commissioner is the Small Business Commissioner and is responsible for administering the code and the relevant Part 3A elements (reg 4(2)). An authorised officer is the operational agent who may commence ADR, request participation, ask that an authorised decision‑maker attend, appoint experts, refer disputes to mediation and suspend or terminate ADR in specified circumstances (Schedule cl 4(1)-(11)).

Participation standards and duties: Parties must attend or otherwise participate as required, act reasonably, fairly, honestly and cooperatively, and must not mislead, harass, intimidate or oppress (cl 4(2)-(3)). They must also comply with reasonable requests by the authorised officer, including exchanging information, answering questions, attending meetings and taking part in mediation (cl 4(4)).

Certificates and confidentiality: Communications and documents prepared in connection with ADR are confidential unless otherwise agreed, but the authorised officer must issue a certificate stating parties, matters in dispute and either the terms of resolution or termination without resolution. That certificate, while otherwise within the confidentiality regime, may be produced before a court or tribunal (cl 4(11)-(13)).

Civil penalty link and fees: A contravention of s 28E of the Act that is constituted by contravening the code is subject to civil penalty under Part 7 Division 3A, and the regulations fix expiation fees of $4,000 for bodies corporate and $500 for natural persons for alleged contraventions (reg 5(1)-(2)). Separately, mediation arranged by an authorised officer with parties’ agreement attracts a fee of $195 per party per day (reg 6(1)-(2)), recoverable as a debt to the Crown, with a waiver power held by the Commissioner (reg 6(3)).

These concepts combine legal status (prescription under the Act), procedural obligations (participation and cooperation), administrative discretion (authorised officer, Commissioner powers), cost allocation (mediation fees, shared expert costs), and enforcement levers (civil penalties/expiation fees and production of the ADR certificate in court).

The regulations and the code identify several distinct groups that are directly affected.

Newsagency industry participants: The primary affected group are people described as participants in the newsagency industry in Schedule cl 2, including: (a) those who carry on a newsagency business (defined by primary purpose as acquiring, selling or distributing newspapers or magazines); (b) those carrying on a business having a connection to a newsagency business; and (c) persons who, in the course of business, supply goods or services to newsagency businesses. This captures principal outlets, connected traders and business-to-business suppliers who operate commercially with newsagencies.

Counterparties to participants: The code’s application clause (Schedule cl 3) extends to disputes between a participant and another participant, and between a participant and a person to whom goods or services are or may be supplied by the participant, in connection with acquisition, supply or potential acquisition or supply of goods or services relating to a newsagency business. That means customers, suppliers, landlords, wholesalers, distribution services and other commercial counterparties involved in the supply chain for goods or services relevant to newsagency operations can be drawn in.

The Small Business Commissioner and authorised officers: The Commissioner is assigned administration responsibility (reg 4(2)). Authorised officers (the operational agents) are empowered to start ADR procedures, direct participation, request attendance of persons authorised to resolve the dispute, appoint experts, and issue certificates (Schedule cl 4). These officers hold decision-making authority over initiation, progress and termination of ADR under the code.

Bodies corporate and natural persons facing alleged contraventions: The civil penalty and expiation regime in reg 5(2) explicitly differentiates corporate and natural-person defendants by fixing different expiation fees ($4,000 for bodies corporate; $500 for natural persons). That creates asymmetric immediate monetary exposure for businesses compared with individuals in alleged contraventions of the code that amount to a contravention of s 28E of the Act.

Parties to mediation: If an authorised officer arranges mediation with parties’ agreement, each party must pay $195 per day, or part day, of mediation (reg 6(1)). This fee is payable by each participating party and is recoverable as a debt to the Crown (reg 6(2)), although the Commissioner may waive the fee in an individual case (reg 6(3)). The fee applies whether the party is a corporate entity or an individual; the regulation sets a flat per-party per-day rate.

Experts appointed and their funders: Where the authorised officer appoints an expert after consultation with the parties (Schedule cl 4(7)(b)), the parties are equally liable for expert costs unless they agree a different apportionment (cl 4(8)). Therefore experts engaged to advise the officer will primarily look to the parties for payment, with equal liability the default rule.

Courts and tribunals, and arbitral tribunals: The code interacts with dispute resolution forums beyond the scheme: an authorised officer must suspend or terminate ADR if the dispute is already the subject of proceedings before a court or tribunal, arbitration or another ADR procedure (cl 4(9)). Certificates issued by authorised officers can be produced before courts or tribunals (cl 4(13)), so judicial bodies and arbitral processes have a role at the boundaries of the code’s operation.

Taken together, these rules mean that a wide range of commercial actors involved with newsagency goods and services,operators, suppliers, contractors, customers, and connected businesses,can be required to participate in Commissioner‑led ADR, to pay mediation fees and possibly share expert costs, and to face civil penalty exposure if their conduct in relation to the code is characterised as contravening s 28E of the Fair Trading Act.

The code establishes discrete participation duties, procedural rights and administrative powers. These are stated in operational terms and supported by the regulations’ linking to the Fair Trading Act.

Duties to participate and to be cooperative: If the Commissioner, on written application and subject to conditions, instructs an authorised officer to commence ADR, parties must attend or otherwise participate, or send a person authorised in writing to attend or participate on their behalf, as required by the authorised officer (Schedule cl 4(1)-(2)). Further, a person participating must act reasonably, fairly, honestly and cooperatively, and must not mislead, harass, intimidate or oppress another party (cl 4(3)). That creates a statutory behavioural floor for participants.

Duty to comply with reasonable requests: A person participating must comply with reasonable requests made by the authorised officer to assist resolution, including exchanging information relevant to the dispute, answering relevant questions, attending meetings, and participating in mediation or other ADR measures (cl 4(4)). 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 time and manner obligations set practical deadlines and create an administrative compliance burden.

Duty to provide an authorised decision‑maker: An authorised officer may request that a person participating be authorised to resolve the dispute, meaning the person attending should have authority to bind the party where asked (cl 4(5)). The request must be complied with within the statutory time limits in cl 4(6). This compels commercial parties to make available personnel with decision authority, potentially affecting corporate delegation and on-the-ground settlement capability.

Duty to share costs of experts by default: If the authorised officer appoints an expert to assist after consultation with the parties, the parties are equally liable for the costs of that expert unless they agree on a different apportionment (cl 4(7)(b), (8)). That places default financial risk for obtaining expert input equally on both sides, which may affect parties’ willingness to seek expert assistance.

Mediation fee obligations and recovery: Where an authorised officer arranges mediation with parties’ agreement, each party must pay $195 for each day or part day of mediation (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)). The regime thus imposes a per-party administrative fee with statutory recovery mechanisms and limited waiver discretion.

Rights to apply and to have the Commissioner consider ADR: A party may make a written application to the Commissioner for ADR under the code (cl 4(1)). The Commissioner exercises a gatekeeping role: an authorised officer may commence ADR only if satisfied that the applicant has made a reasonable attempt to resolve the dispute and that the dispute is not frivolous or vexatious (cl 4(1)(a)-(b)). This provides a filtered access right where parties have already attempted resolution.

Authorised officer powers and procedural rights: The authorised officer may refer disputes to mediation, appoint experts after consultation, suspend or terminate ADR in specified circumstances (presence of court or tribunal proceedings, arbitration, another ADR, or if there is no reasonable prospect of resolution or the subject matter is frivolous or vexatious,cl 4(7), (9), (10)), and must provide a certificate on completion or termination (cl 4(11)). Parties thereby obtain both procedural closure (a certificate) and the right to have the ADR process administratively directed by an officer who can end the process if it is unproductive or pre‑empted by litigation.

Confidentiality and limited disclosure rights: Unless otherwise agreed in writing, communications and documents prepared in connection with ADR are to be treated confidentially (cl 4(12)). However, a certificate must be provided and may be produced in court or tribunal (cl 4(11), (13)). Therefore confidentiality is protected during the ADR process but not absolute; the certificate is explicitly admissible or producible.

Civil penalty exposure: A contravention of s 28E of the Fair Trading Act that is constituted by contravening the code is subject to civil penalty under Part 7 Division 3A of the Act (reg 5(1)). Expiation fees for alleged civil penalty contraventions are set at $4,000 for bodies corporate and $500 for natural persons (reg 5(2)). These monetary consequences anchor enforcement and create a compliance cost for failing to conform with the code where that failure amounts to a statutory contravention.

Taken together, these duties and rights create an administrative ADR regime: parties are required to cooperate, supply information, send authorised decision-makers, and bear certain costs by default; they retain the right to seek ADR and to request confidentiality, with the Commissioner and authorised officers holding discretion over initiation, conduct, and termination of the process. Civil penalty exposure supplements administrative mechanisms with statutory monetary penalties where a contravention of the code amounts to a s 28E breach.

The regulations connect contraventions of the code to the Fair Trading Act’s civil penalty machinery and create specific monetary and procedural enforcement mechanisms.

Link to civil penalties under the Act: Reg 5(1) states that a contravention of section 28E of the Fair Trading Act constituted by a contravention of the code is subject to a civil penalty under Part 7 Division 3A of the Act. The regulation thus does not itself set out penalty quantum beyond expiation fees; instead it triggers the Act’s civil penalty regime where a code contravention meets the statutory threshold in s 28E. The regulations do not restate the Act’s procedural rules for imposing civil penalties, so enforcement is to proceed under the Act’s Part 7 Division 3A framework.

Expiation fees: Reg 5(2) fixes expiation fees for an alleged civil penalty contravention involving an alleged contravention or attempted contravention of the code. The fees are $4,000 for a body corporate and $500 for a natural person. These are fixed administrative sums payable in lieu of pursuing the civil penalty enforcement, ordinarily enabling a quicker resolution, with the differential amounts creating asymmetric monetary exposure between corporate and natural person respondents.

Mediation fees recoverability and waiver: Where mediation is arranged by an authorised officer with parties’ agreement, each party must pay $195 per day or part day (reg 6(1)). Reg 6(2) makes this fee recoverable as a debt due to the Crown, creating a statutory recovery process rather than private contractual enforcement. Reg 6(3) permits the Commissioner to waive a fee if satisfied it is appropriate in a particular case, providing a discretionary mitigation valve but leaving the default obligation intact.

Administrative enforcement powers of authorised officers: The code empowers authorised officers to commence ADR, compel attendance and participation, request that persons with authorisation to resolve disputes attend, request exchange of information and answers to questions, and to appoint experts or refer matters to mediation (Schedule cl 4(1)-(7)). The authorised officer can suspend or terminate ADR if the dispute is subject to court, tribunal or arbitration proceedings or if there is another ADR process (cl 4(9)), and can terminate if there is no reasonable prospect of resolving the dispute or the dispute is frivolous or vexatious (cl 4(10)). These are administrative enforcement levers within the ADR process.

Certificates and evidentiary role: Following completion of ADR, the authorised officer must provide a certificate setting out parties, the nature of matters in dispute and either terms of resolution or that the procedure terminated without resolution (cl 4(11)). While communications in ADR are confidential unless otherwise agreed (cl 4(12)), the code explicitly notes that the certificate may be produced before a court or tribunal (cl 4(13)). This gives the authorised officer’s certificate an evidentiary or procedural role in subsequent court or tribunal processes and can therefore influence downstream adjudication or settlement.

Who administers enforcement: Reg 4(2) assigns responsibility for administration of the code and Part 3A of the Act in relation to the code to the Small Business Commissioner. That positions the Commissioner’s office as the primary operational and enforcement authority for ADR commencement, fee collection or waiver, authorised officer appointments, expert appointments, and the issuance of certificates. Where contraventions align with s 28E, enforcement escalates to the Act’s civil penalty regime.

Practical enforcement consequences and interaction: The scheme combines administrative process-enforcement (compulsory participation, admin fees, debt recovery to the Crown) with statutory civil penalty exposure, and the authorised officer’s procedural gatekeeping and termination powers restrict double-handling where litigation or arbitration is already underway. The certificate’s admissibility in court means outcomes or statements in the ADR process can feed into formal litigation or tribunal processes notwithstanding general confidentiality protections for ADR communications. The regulations do not specify criminal penalties; enforcement is through civil penalties, expiation regimes and administrative debt recovery.

The instrument is explicitly designed to sit within the Fair Trading Act architecture and to interface with court, tribunal and arbitration processes. The regulations repeatedly reference the Act, and the Schedule provides specific interaction rules.

Prescription under the Fair Trading Act: Reg 4(1) prescribes the Newsagency Industry Dispute Resolution Code as an industry code for the purposes of Part 3A of the Fair Trading Act. Reg 5 links code contraventions to s 28E of the Act and to the civil penalty framework in Part 7 Division 3A. Therefore the code functions as a subordinate instrument that creates obligations and standards which, where breached in the way contemplated by s 28E, fall within the Act’s enforcement and civil penalty mechanisms.

Certificates and admissibility in court/tribunal: The code requires the authorised officer to issue a certificate recording the outcome or termination of ADR (Schedule cl 4(11)). Clause 4(13) permits the certificate to be produced before a court or tribunal. This creates a direct evidentiary bridge from the Commissioner-led ADR process into judicial or tribunal procedures. The code’s confidentiality clause (cl 4(12)) does not prevent the certificate being used before a judicial or tribunal body.

Suspension where litigation or arbitration is underway: The authorised officer may suspend or terminate ADR if the dispute is subject to proceedings before a court or tribunal, arbitration, or another ADR procedure (cl 4(9)). This establishes a priority principle: formal adjudicative proceedings or alternative conflict-resolution processes elsewhere can displace Commissioner-led ADR to avoid concurrent or conflicting processes.

Exclusion of arbitration from ADR under the code: The Schedule defines “alternative dispute resolution procedure” and expressly states that it does not include arbitration (cl 2). That definition establishes that the code’s ADR processes are distinct from arbitration procedures, and where arbitration is underway the authorised officer may suspend the code process (cl 4(9)). This delineation clarifies that the Commissioner’s processes are not intended to be substitute forums for arbitral tribunals.

Interaction with debt recovery and Crown remedies: Reg 6(2) makes mediation fees recoverable as a debt to the Crown, taking collection outside private contractual mechanics and into public debt-recovery processes under relevant Crown and public finance rules. The Commissioner’s waiver power (reg 6(3)) provides an administrative discretion in the Crown’s collection apparatus.

Limitations on scope beyond the Act: The regulations refer back to the Fair Trading Act for definitions such as “civil penalty contravention” (reg 3), and for the mechanics of civil penalty enforcement (reg 5(1)). The instrument therefore delegates penal substance and certain procedural enforcement mechanics to the parent Act rather than restating them, meaning readers must consult the Fair Trading Act for the full legal consequences of code contraventions.

No express interaction with other specific statutes: The text provided contains no references to other South Australian Acts, federal law, competition law, employment law, property law or privative clauses affecting judicial review. It does, however, make a firm rule for interplay with court, tribunal and arbitration processes by allowing suspension of ADR where those processes are in play and by allowing the ADR certificate to be produced in judicial proceedings.

Administrative vs judicial roles: The Commissioner and authorised officers have administrative power to conduct ADR, make referrals to mediation, appoint experts and issue certificates. Judicial or arbitral bodies, when seized of a dispute, can effectively pre-empt the Commissioner’s process. This allocation places the Commissioner’s process as an administrative front-end for disputes that can either lead to resolution and a certificate that is admissible in court, or be set aside where formal adjudication is already engaged.

Overall, the regulations operate as subordinate law within the Fair Trading Act framework, providing procedural ADR rules and administrative enforcement while deferring penal substance and some enforcement processes to the Act and creating a defined interface with courts, tribunals and arbitration.

The source provides a brief legislative history limited to the instrument’s principal regulation particulars. There is a single entry in the legislative history notes which records the principal regulations without further amendments.

The principal regulations are identified as: 2014, No 45, published in the Gazette on 13 February 2014 at page 902, with commencement on 13 February 2014 (Gazette 13.2.2014 p902; r 2). Reg 2 confirms the regulations came into operation on the day on which they were made. The Schedule itself is cited as the Newsagency Industry Dispute Resolution Code 2014 (Schedule 1, cl 1).

The legislative history section in the provided text does not list any subsequent amending instruments, revocations, or changes to the code or the regulations since the principal regulations. No amending regulations, modifications to fees, or other textual changes appear within the supplied materials. The instrument as presented therefore reflects the original 2014 instrument and its commencement particulars as recorded.

Because the provided text does not include later statutory instruments, amendments, or reversal entries, any change to expiation amounts, mediation fee, Commissioner powers, or the code’s substantive clauses is not recorded in the source supplied. Practitioners needing to ensure they rely on the current law should verify whether later amendments or repeals exist in the official South Australian legislative repository or Index of South Australian Statutes, as the notes explicitly point readers there for further information (Legislative history notes).

To summarise the source-provided amendment history: the regulations were made and commenced on 13 February 2014 as Statutory Instrument No 45 of 2014; the provided text contains no record of subsequent amendments.

The provided instrument does not include any case citations, reported judicial decisions, tribunal determinations, or references to litigation arising under the code or these regulations. The Schedule and regulations do not list or cite any judicial interpretations, nor do the legislative history notes record test cases or appellate decisions. The only historical entry in the materials relates to the instrument’s publication and commencement in 2014 (Gazette 13.2.2014 p902; r 2).

Because the text contains no litigation history, the following points are what the source supports:

• There are no courts, tribunals, or arbitral determinations recorded in the instrument’s text that interpret the code or the regulations.
• There are no recorded enforcement actions or civil penalty proceedings listed in the materials.
• The code contemplates interaction with courts and tribunals (Schedule cl 4(9), (11), (13)), and certificates can be produced in court or tribunal proceedings (cl 4(13)), but the source contains no examples of such certificates being used, or any reported rulings on their evidentiary weight.

Practitioners and researchers should therefore note that the provided material does not supply litigation precedents or examples of enforcement outcomes; any assessment of legal risk, likely judicial treatment of the code’s provisions or evidentiary effect of the authorised officer’s certificate in litigation would require consultation of subsequent case law and tribunal records beyond this instrument. The legislative notes recommend consulting the Index of South Australian Statutes or www.legislation.sa.gov.au for further information, which is the appropriate next step to locate any judicial treatment or enforcement history not present in the text supplied.

The code and regulations contain several operational features that can produce practical surprises if overlooked. These are drawn strictly from the instrument’s text.

Confidentiality is qualified by certificate admissibility: The code provides that communications and documents prepared in connection with ADR are confidential unless the authorised officer and the parties agree otherwise in writing (cl 4(12)). However, the authorised officer’s certificate that records the outcome or termination (cl 4(11)) may be produced before a court or tribunal (cl 4(13)). Parties often assume ADR confidentiality is absolute; under this code a formal certificate is an explicit exception and is admissible or producible, which can materially affect downstream litigation strategy.

Mediation fee is per party and recoverable as Crown debt: If mediation is arranged by an authorised officer with the parties’ agreement, each party pays $195 per day or part of a day (reg 6(1)), and that fee is recoverable as a debt due to the Crown (reg 6(2)). That converts an ADR administrative cost into a public debt-recovery matter rather than a private contractual dispute over payment. Parties who assume small administrative costs or expect private mediation arrangements may be surprised by the Crown recoverability mechanism.

Disparate expiation fees for corporate and natural persons: The expiation fee schedule fixes $4,000 for bodies corporate and $500 for natural persons for alleged civil penalty contraventions involving the code (reg 5(2)). That sharp differential creates materially higher immediate financial exposure for corporate entities when dealing with an alleged contravention that may be subject to expedited resolution. Parties should not assume parity between corporate and individual exposure.

Compulsory participation and delegation of authority: An authorised officer may require a participating party to attend or to send someone authorised in writing to attend or participate on their behalf (cl 4(2), (5)). Parties must comply with reasonable requests, including providing persons authorised to resolve the dispute (cl 4(4), (5), (6)). A business that sends junior staff without settlement authority may be non-compliant with the code’s requirements.

Time limits for complying with written requests: A written request by an authorised officer must be complied with as soon as reasonably practicable and, in any event, within 14 days of the date of the request unless the officer allows longer (cl 4(6)). Parties that habitually allow slow internal decision processes risk technical non-compliance if they exceed the 14-day default period without agreement from the authorised officer.

Default equal cost apportionment for experts: When an authorised officer appoints an expert to assist, the parties are equally liable for the costs unless they agree otherwise (cl 4(7)(b), (8)). Parties assuming that the instigating party will bear expert fees may be surprised to find an equal apportionment is the default. The appointment requires consultation with the parties (cl 4(7)(b)), but the cost rule applies unless differently agreed.

Threshold for commencement of ADR: An authorised officer may commence ADR only where satisfied the applicant has made a reasonable attempt to resolve the dispute and that the subject matter is not frivolous or vexatious (cl 4(1)(a)-(b)). Applicants who have not made a demonstrable attempt at resolution risk rejection at intake. The instrument does not define “reasonable attempt” in the supplied text, so this threshold may be applied with administrative discretion.

Suspension where litigation or arbitration is in play: The authorised officer may suspend or terminate ADR if the dispute is subject to proceedings before a court or tribunal, arbitration or another ADR procedure (cl 4(9)). Where litigation or arbitration has already started, the Commissioner’s process can be set aside; parties should be alert to the timing of applications to the Commissioner.

No arbitration under ADR: The code explicitly excludes arbitration from the definition of ADR (cl 2). Parties cannot shoehorn an arbitral process into the Commissioner-led ADR under this code, and arbitration proceedings can displace the code’s process (cl 4(9)).

Civil penalty link requires reference to the Act: Reg 5(1) ties contraventions of the code to s 28E of the Fair Trading Act and penalties under Part 7 Division 3A. The regulation does not itself set out the full civil penalty procedures or maximums beyond the expiation fees, so parties must consult the parent Act to understand full enforcement mechanics and penalties.

No express provision for appeal of authorised officer decisions in the supplied text: The code gives the authorised officer broad initiation and termination powers (cl 4(1), (9), (10)), but the instrument does not set out a statutory appeal route from those administrative choices within the text provided. The absence of an express review pathway in the instrument text supplied is a potential procedural surprise.

These items are literal consequences of the text and should be treated as practical compliance and procedural considerations rather than evaluative judgments.

Compliance with the regulations and the code requires attention to administrative process, timing, representation, information exchange and cost obligations. The following steps reflect the obligations and powers set out in the instrument.

1. Prepare for the Commissioner gateway: A party seeking ADR under the code must file a written application to the Commissioner. Anticipate that the authorised officer will require evidence that the applicant has made a reasonable attempt to resolve the dispute and that the matter is not frivolous or vexatious (Schedule cl 4(1)(a)-(b)). Document settlement communications, offers, negotiation history, and attempts at internal escalation to demonstrate a reasonable attempt to resolve before applying.

2. Be ready to attend and to authorise decisionmakers: If ADR commences, the code requires party attendance or participation and permits attendance by a person authorised in writing to act for a party (cl 4(2), (5)). Ensure that nominated representatives have documented authority to resolve the dispute, or that an authorised delegate is available to attend within the 14-day compliance window for written officer requests (cl 4(6)). Avoid sending individuals without authority to settle where the officer has requested an authorised decision-maker.

3. Observe behavioural standards during ADR: Parties must act reasonably, fairly, honestly and cooperatively and must not mislead, harass, intimidate or oppress the other party (cl 4(3)). Train representatives and advisers in these statutory behavioural standards. Non-compliant conduct could influence the officer’s willingness to continue ADR and may be relevant to later enforcement.

4. Comply with reasonable information and meeting requests promptly: The authorised officer may request exchange of information, answers to questions, attendance at meetings, and participation in mediation or other ADR (cl 4(4)). Written requests must be complied with as soon as reasonably practicable and within 14 days unless otherwise allowed (cl 4(6)). Put in place internal procedures to respond to such requests within the 14-day default period, or to seek an extension from the authorised officer if that is necessary.

5. Budget for mediation and expert costs, and consider waivers/agreements: If mediation is arranged by an authorised officer with parties’ agreement, each party pays $195 for each day or part day of mediation (reg 6(1)). Budget for this fee and note it is recoverable as a debt to the Crown (reg 6(2)). The Commissioner can waive the fee in a particular case (reg 6(3)), so where appropriate, apply for a waiver with reasons. If an authorised officer appoints an expert, parties are equally liable for costs unless they agree otherwise (cl 4(7)(b), (8)). Consider negotiating a cost-sharing agreement before expert appointment to avoid the default equal apportionment.

6. Preserve confidentiality but expect the certificate to be produced in court: Communications in ADR are confidential unless the authorised officer and parties agree otherwise in writing (cl 4(12)). However, the authorised officer’s certificate may be produced before a court or tribunal (cl 4(13)). When negotiating settlement terms or drafting ADR communications, be mindful that the certificate summarising outcomes may later be produced in litigation, so manage wording and settlement documentation accordingly.

7. Monitor timing relative to court, tribunal or arbitration filings: The authorised officer will suspend or terminate ADR if the dispute becomes subject to court or tribunal proceedings, arbitration or another ADR procedure (cl 4(9)). If there is a strategic decision to litigate or arbitrate, be aware this will displace the Commissioner’s process. Coordinate filings and ADR applications to avoid procedural pre-emption if the Commissioner’s process is desired.

8. Document compliance with the code to avoid civil penalty exposure: Reg 5(1) makes contraventions of the code that constitute a contravention of s 28E subject to civil penalties. Maintain records of compliance with participation duties, officer requests, and ADR steps. If there is a risk of conduct being characterised as a code contravention, seek early legal advice and consider engaging the Commissioner’s process to mitigate escalation.

9. Use written agreements to modify default cost apportionments: Where possible, reach written agreements about expert cost apportionment and confidentiality exceptions early in the ADR process. The code allows parties to agree different apportionments for expert costs than the default equal split (cl 4(8)), and written agreements can alter the default confidentiality settings (cl 4(12)).

10. Keep the Commissioner’s role and powers in mind: The Commissioner administers the code and Part 3A in relation to the code (reg 4(2)). Where mediation fees or other administrative decisions are contested, address them to the Commissioner’s office; the Commissioner has explicit power to waive mediation fees in particular cases (reg 6(3)).

In practical terms, compliance requires early organisation of negotiation records, designated authorised representatives, prompt and documented responses to authorised officer requests, budgeting for mediation and possible expert costs, and careful handling of confidentiality and settlement documentation given the exception for certificates being produced in court.