Before referral: document a "reasonable attempt" to resolve. Parties intending to refer a land access dispute must make a reasonable attempt to resolve the dispute with the other party before referral, or risk refusal under s 36(2)(b)(i). Because "reasonable attempt" is not defined in the statute except as a potential subject of procedural guidelines (s 65), parties should record clear, tangible steps taken to resolve the matter, such as dated correspondence, mediation offers, meeting minutes, offers to negotiate, and any use of contractual dispute processes where relevant. If a party is asked to make further attempts under s 37, that direction should be complied with and documented.
Referral mechanics and form. A referral may be made orally or in the approved form (s 33(1)). The ombudsman may require referrals made orally to be formalised in the approved form before investigation continues (s 33(2)). Use the approved form if available and seek assistance from the ombudsman if needed (s 33(3)). Ensure the referral clearly identifies the subject dispute, the referring party and the land concerned, consistent with the notice content required if the ombudsman accepts the referral (s 40(2)).
Protect confidential material and follow s 59. If documents are commercially sensitive, inform the ombudsman when producing them under s 42, and consider making formal confidentiality requests stating why disclosure would be detrimental (s 59). Where a party relies on confidentiality or privilege, invoke legal professional privilege before production if applicable (s 42(6)(a)). If a document was part of pre‑referral settlement negotiations, note that s 42(6)(b) protects those admissions from compelled production.
Responding to documentary and attendance notices. If the ombudsman issues a production notice under s 42 or an attendance notice under s 43, comply unless you have a statutory reasonable excuse. Reasonable excuses include lack of possession or control of the document, a third party failing to provide it after reasonable steps by the party, legal professional privilege or, for individuals, risk of self‑incrimination (ss 42(5), 43(3)). If asserting a reasonable excuse, state the grounds in writing and document the reasonable steps taken to obtain documents from others. For attendance, request leave to be represented where necessary; the ombudsman must not unreasonably withhold such leave and each party bears their own representation costs (s 43(4)-(6)).
Consent and entry protocols. If the ombudsman seeks access to dispute land, ensure the information required by s 48 is provided so consent is informed, and consider signing the s 49 acknowledgement if consenting to entry. If a party does not wish to consent to entry, state any conditions for consent and maintain documentation of withheld consent. For operational sites with safety management systems, ensure coordination with the resource authority holder where their consent is required (s 45(1)(d)-(f)).
Engage with draft notices and make submissions. The ombudsman must provide a draft s 51 notice and invite submissions within a reasonable period before finalising the notice (s 51(3)-(5)). Parties should prepare focussed written submissions responding to evidence, legal arguments and confidential material concerns, and should request confidential handling where appropriate. If the ombudsman relies on confidential documents to form reasons, s 51(9) permits the ombudsman to state reliance without disclosing the material; parties should identify any errors of fact or law in draft reasons.
Manage regulatory referral risk. If the ombudsman notifies an intention to recommend investigation to a regulator under ss 53-55, the party must be given notice and an opportunity to make submissions (ss 53(3)-(5), 54(3)-(5), 55(3)-(5)). Use that opportunity to provide contextual material, remedial steps taken, and any technical evidence that rebuts the suspicion of breach. Keep in mind that the ombudsman may include s 51 notices in its recommendation to regulators (ss 53(6), 54(6), 55(6)), so timely engagement is material.
Preserve privilege and ADR confidentiality. Legal professional privilege is preserved for production notices (s 42(6)(a)). Communications made during the ombudsman’s ADR process are inadmissible in later proceedings without the speaker’s consent (s 41(5)). If using ADR, consider what may or may not be consented to be used in later litigation when making statements during the process.
Record keeping and identity card obligations for officers. If appointed as an officer of the office, keep identity cards secure and return them within 21 days of ceasing office or document a reasonable excuse to avoid the 20 penalty unit exposure (s 29). Officers and the ombudsman must not disclose confidential information beyond permitted uses; internal policies and training should be in place to avoid s 60 breaches.
Use procedural guidelines and approved forms. Watch for procedural guidelines issued under s 65 and approved forms under s 64, which may clarify intake standards, what constitutes a reasonable attempt to resolve, and withdrawal procedures (s 39). These guidelines can materially reduce intake risk and uncertainty around compliance thresholds.
Prepare for admissibility consequences. Because s 51 notices may be admissible in Land Court proceedings and arbitrations (s 52), parties should consider the strategic implications of statements and documents provided to the ombudsman. When in doubt, consult litigation counsel before producing material that may be used later against the party, and use confidentiality requests under s 59 where appropriate.
Annual reporting and systemic advice channels. Organisations that are frequent participants should monitor the ombudsman’s annual reports (s 63) for patterns and systemic advice to regulators (s 56) and may use those reports to guide policy or operational changes. Where a systemic issue identified by the ombudsman implicates a regulated entity, engage proactively with regulators and prepare to supply corrective action evidence.
Confirm current law and commencement status. Given the volume of amendments and many flagged as uncommenced in the provided text, confirm the current consolidated statute and the commencement status of later amendments before advising clients or acting. Check Governor in Council commencement notices and the consolidated public acts register.
In short, compliance means documenting pre‑referral negotiation steps, using approved forms, carefully managing production and attendance notices with legal privilege in mind, handling consent to entry with attention to conditions and safety requirements, taking submissions on draft notices seriously, and preparing for the possibility that s 51 notices will be used as admissible evidence in later proceedings.