The Regulation is compact and pivots around a small set of operational concepts that structure the appointed person’s task under the Act. The core concepts are prescribed period, determination/draft determination, remuneration, submission period, relevant information, compulsory production notice, confidentiality notice and publication. These concepts are defined or given operative effect in Part 2 and Part 3 (see Regs 3-11).

Prescribed period. The Regulation defines a two-tier timing regime for the determination. The basic window is six months from the appointment date. The appointed person may extend that window to 12 months by giving written notice to the Treasurer and the Port operator and stating reasons the additional time is reasonable (Reg 4(1)-(2)). If the appointed person issues a draft determination before the expiry of the prescribed period, the period is extended by three months, but only for the first draft issued (Reg 4(3)-(4)). The appointment date is the date of appointment under the Act, section 6 (Reg 4(5)).

Determination and draft determination. The appointed person may issue a draft determination to the parties and must allow a specified submission window. The Regulation mandates that the appointed person consider timely written submissions, respond in writing when disagreeing with a submission, and may extend the submission period if reasonable and necessary (Reg 7(1)-(5)). The minimum submission period is 42 days, subject to extension (Reg 7(5)).

Remuneration. The fee for the appointed person, and reasonable costs and disbursements, are to be split equally between the State and the Port operator (Reg 6(1)-(2)). Remuneration is what the Treasurer and the appointed person agree plus reasonable costs.

Relevant information, compulsory production and confidentiality. The Regulation sets boundaries on obtaining and using information. The appointed person may issue compulsory production notices only where the information could not reasonably be obtained by other means (Reg 9(1)-(2)). A compulsory production notice must state it is issued under the provision and recipients must take reasonable steps to comply (Reg 9(3)-(4)). Use of relevant information is restricted to purposes of the Act (Reg 10). A notifier may designate information as confidential by written notice; the appointed person is prohibited from disclosing that information except in narrow, enumerated circumstances (employees, advisers on confidential terms, public availability, notifier consent or where another Act or law requires disclosure) (Reg 11(1)-(2)).

Inflation adjustment. The Regulation prescribes a CPI-based formula to calculate the inflation-adjusted payment payable under the Act, section 8. It uses the ABS All Groups CPI for eight capital cities, the CPI number for the quarter immediately before payment, and the CPI for the June quarter 2014 as the base (Reg 5(1)-(2)). The Regulation supplies the variables A, B and C and thus operationalises section 8 of the Act.

Publication. The appointed person must publish notice of the determination on a publicly available website maintained by them within 14 days of making the determination. This creates a public transparency obligation for the final determination (Reg 8).

Definitions and scope. The Regulation defines party to mean the Port operator or the State, and explicitly notes that information includes documents (Reg 3). It also records that the Act and the Interpretation Act 1987 affect interpretation and application (Reg 3, note).

Together, these concepts transform a statutory appointment into a bounded administrative process with explicit timing, document-production, cost allocation and confidentiality rules.

The Regulation makes binding provisions that directly affect these actors: the appointed person; the Port operator; the State; any person to whom a compulsory production notice is issued; employees and advisers engaged by the appointed person; and any notifier who supplies information and claims confidentiality (Reg 3, Regs 6, 9-11).

Appointed person. The Regulation allocates responsibilities and discretions to the appointed person. They determine the prescribed period (by deciding whether to require extra time and by issuing notices to the Treasurer and Port operator) (Reg 4(1)(b)-(2)). They control whether and when to issue a draft determination; issuing the first draft before the end of the prescribed period extends the period by three months (Reg 4(3)-(4)). They decide whether a compulsory production notice is necessary because the information could not reasonably be obtained otherwise (Reg 9(1)-(2)). The appointed person must consider submissions within the submission period and respond in writing when disagreeing with a submission (Reg 7(1)-(4)). They must publish a notice of the determination within 14 days on a publicly available website maintained by them (Reg 8). They must limit use of relevant information to the purposes of the Act (Reg 10). They must respect confidentiality notices unless disclosure is allowed under enumerated exceptions (Reg 11(1)-(2)).

Port operator. The Port operator is explicitly a “party” for the Regulation’s purposes (Reg 3). Financially, the Port operator is liable for half of the appointed person’s remuneration, inclusive of agreed fees and reasonable costs and disbursements (Reg 6(1)-(2)). As a recipient of draft and final determinations and as an object of compulsory production notices, the Port operator may need to produce relevant information and make submissions. The Port operator is also an addressee of any notice the appointed person must give to extend the prescribed period (Reg 4(1)(b)-(2)).

The State. The State is the other party defined by the Regulation and shares liability for half of the appointed person’s remuneration (Reg 3, Reg 6(1)). The Treasurer is the specific State official named as the recipient of notices about extensions of the prescribed period (Reg 4(1)(b)). The State may also be required to produce information in response to a compulsory production notice and may be the recipient of draft determinations and submissions.

Persons who hold information. The Regulation affects any person from whom the appointed person requires information by compulsory production notice. The appointed person may issue such a notice only if the information could not reasonably be obtained by other means (Reg 9(1)-(2)). A person served with a compulsory production notice must take reasonable steps to comply (Reg 9(4)). Those persons therefore face a practical duty to search for, collate and deliver relevant information, subject to rights and protections such as confidentiality notices (Reg 11).

Employees and professional advisers. Where confidential material is designated by a notifier, the Regulation permits disclosure to the appointed person’s employees or to professional advisers engaged on confidentiality terms when the appointed person considers the disclosure necessary for making the determination (Reg 11(2)(a)(i)-(ii)). Those recipients will receive access to confidential relevant information under controlled terms, and may be legally bound to keep it confidential by contract or the terms of engagement.

Notifiers. Any person who supplies relevant information to the appointed person may, by written notice, designate that information as confidential (Reg 11(1)). That designation triggers the non-disclosure restrictions and the exceptions listed in the Regulation (Reg 11(2)).

Public and interested third parties. The Regulation requires the appointed person to publish notice of the determination on a public website within 14 days (Reg 8). This means members of the public and third parties have a guaranteed route to access the existence of the determination. The Regulation also defines the term “relevant information” narrowly as information obtained by the appointed person for the purposes of consideration under the Act, section 7(3) (Reg 3), and limits the use of such information to purposes of the Act (Reg 10), which affects how third parties may rely on information obtained during the process.

Organisations’ legal and compliance teams. In practice, legal, compliance and finance teams for both parties and any third party subject to compulsory production notices will need to budget for remuneration liabilities, prepare submission materials within the 42-day minimum period, assess whether to designate material confidential, and arrange for appropriate custodianship of documents provided to the appointed person.

Taken together, the Regulation primarily imposes obligations and allocates costs between the appointed person, the State and the Port operator, while creating duties for any person required to produce information and protections and exceptions for confidentiality and use of that information.

This section summarises the principal procedural duties and rights that the Regulation creates or clarifies for the parties and related actors. Citations are given to the Regulation clauses that create each duty or right.

Duties of the appointed person

• Timing and notice duties. The appointed person must make the determination within the prescribed period, which is normally six months from appointment but may be extended to 12 months if the appointed person gives written notice and reasons to the Treasurer and the Port operator (Reg 4(1)-(2)). If the appointed person issues a draft determination before the end of the prescribed period, the prescribed period is extended by three months for that first draft only (Reg 4(3)-(4)). Appointment date is the date of appointment under the Act, s 6 (Reg 4(5)).
• Draft determination handling. If the appointed person issues a draft determination, they must consider any written submissions made within the submission period and must respond in writing explaining reasons for disagreeing with a submission when applicable (Reg 7(1)(a)-(b), (4)). Submission windows are at least 42 days and may be extended on request when the appointed person considers the extension reasonable and necessary (Reg 7(3)-(5)).
• Publication duty. They must publish notice of the determination on a publicly available website they maintain within 14 days of making the determination (Reg 8).
• Use of information. The appointed person may use relevant information only for the purposes of the Act (Reg 10).
• Confidentiality obligations. Where a notifier has served a confidentiality notice, the appointed person must not disclose the information except under enumerated exceptions (Reg 11(1)-(2)).

Duties of the parties and other recipients

• Financial duty. The State and the Port operator are each liable to pay half of the appointed person’s remuneration, which includes the agreed fee and reasonable costs and disbursements (Reg 6(1)-(2)).
• Production of information. A person who receives a compulsory production notice must take reasonable steps to comply with it (Reg 9(3)-(4)). The appointed person may issue such a notice only if the information could not reasonably be obtained by other means (Reg 9(2)).
• Confidentiality notice entitlement. A person who gives relevant information may give written notice that the information is confidential, which restricts disclosure save for specified exceptions (Reg 11(1)-(2)).

Rights and discretions

• Appointed person’s discretion to issue compulsory production notices. The appointed person can require production only subject to the “could not reasonably be obtained by other means” constraint (Reg 9(1)-(2)). That is a gatekeeping discretion that limits fishing expeditions in the text of the Regulation.
• Right to have submissions considered. Parties have the right to have timely written submissions on a draft considered, and to receive reasons in writing when the appointed person disagrees with a submission (Reg 7(1)(a)-(b), (4)).
• Right to confidentiality. Notifiers may assert confidentiality by written notice (Reg 11(1)). That triggers statutory non-disclosure protections with narrow exceptions (Reg 11(2)(a)-(d)).
• Discretion to extend submission period. The appointed person can extend the submission period upon request if they consider the extension reasonable and necessary (Reg 7(3)). This gives parties some leverage to seek reasonable extra time for complex material.

Procedural constraints

• The appointed person must publish notice of the determination within 14 days, which creates a definite disclosure timeline for the final outcome (Reg 8).
• Submissions received after the end of the submission period need not be considered (Reg 7(2)). That creates an enforceable closure point for evidentiary input.
• The appointed person must provide reasons for seeking a prescribed period extension when giving the relevant written notice to the Treasurer and Port operator (Reg 4(2)). That requires the appointed person to justify a longer timetable.

Collectively, these duties and rights create a structured process in which the appointed person holds significant procedural control but must operate within prescribed timelines, consider party submissions, allow for confidentiality claims, and share the cost of their services equally between the State and the Port operator.

The Regulation itself does not create specific criminal penalties or civil penalties for failure to comply with its procedural requirements. Instead, it spells out procedural obligations and allocates costs and rights without prescribing explicit sanctions in the text provided. Where enforcement or consequences are not specified in the Regulation, enforcement mechanics must be sought in the Act and in general legal remedies under other laws. The Regulation should therefore be read in combination with the Act and any general enforcement powers applicable under administrative or statutory law.

What the Regulation does require and therefore what would typically produce enforceable obligations

• Reasonable steps to comply with compulsory production notices. A person to whom a compulsory production notice is issued must “take reasonable steps to comply with the notice” (Reg 9(4)). The Regulation does not itself state the consequences of failing to take reasonable steps. Non-compliance could, depending on the Act or other legislation, attract statutory penalty provisions in the parent Act or enable the appointed person to draw adverse inferences. The Regulation text does not specify such consequences.
• Financial liability for remuneration. The State and the Port operator are “each liable to pay half of the appointed person’s remuneration” (Reg 6(1)). Liability to pay is a legal obligation. If one party refuses to pay their share, remedies would arise under contract or public law, or the mechanism for recovery set out in the Act or other applicable financial management legislation. The Regulation does not itself prescribe recovery mechanisms.
• Publication obligation. The appointed person must publish notice of the determination on a publicly available website within 14 days (Reg 8). The Regulation does not provide a sanction for failing to publish. Non-publication may nevertheless be actionable by judicial review if publication is an obligation under the Act read with the Regulation, but the Regulation text does not spell out remedies.
• Confidentiality duty. The appointed person must not disclose confidential information subject to a confidentiality notice except in enumerated circumstances (Reg 11(2)). The Regulation does not set out remedies for unauthorised disclosures.

Scope for other legal enforcement. The Regulation refers to the Act and to the Interpretation Act 1987 (Reg 3, note). Enforcement and penalties that are not set out in this Regulation may be found in the Act itself, or in other statutes that apply to officials, contractors and advisers (for example, statutory secrecy provisions or common law remedies for breach of confidence). The Regulation recognises that disclosure might be “required by another Act or law” (Reg 11(2)(d)). That reference anticipates legal obligations that trump non-disclosure.

Implication for parties. In practice, enforcement of the Regulation will likely rely on:

• contractual and funding arrangements to collect the appointed person’s remuneration from the State and Port operator;
• the appointed person’s procedural control to refuse to accept late submissions or to consider compelled documents inadmissible if not properly produced; and
• general legal remedies (injunction, declaratory relief, judicial review or actions for breach of confidence) that are available elsewhere in law when a party breaches an obligation created by this Regulation or the Act.

Because the Regulation contains no discrete penalty schedule, parties should plan on using administrative and civil law remedies if enforcement becomes necessary and refer to the Act and other relevant statutes for any express enforcement powers.

The Regulation is explicitly expressed to operate in conjunction with the Port of Newcastle (Extinguishment of Liability) Act 2022. Reg 3 defines the Act as that parent statute and notes that the Act and the Interpretation Act 1987 contain definitions and other provisions affecting interpretation and application (Reg 3, note). The Regulation gives effect to specific sections of the Act by providing procedural detail and definitions. The principal cross-references in the Regulation are to the Act, sections 6, 7, 8 and 9, which the Regulation operationalises.

Interaction with the Act

• Prescribed period and appointment. The Regulation implements the Act’s timing rule by setting the prescribed period and the process for extending it, including notice and reasons to the Treasurer and the Port operator (Reg 4(1)-(2)). The appointment date is the date the appointed person is appointed under the Act, section 6 (Reg 4(5)). Thus the Regulation supplies the procedural content necessary for the Act’s section 7 to function.
• Calculation of compensation. The Regulation provides the formula and CPI indices required to implement the Act’s inflation adjustment provision (Reg 5). That operationalises the Act, section 8, by naming the CPI series, the reference quarter and the CPI quarter to use immediately before payment.
• Remuneration mechanics. The Act contemplates remuneration of the appointed person. The Regulation decides how that financial liability is shared, making the State and Port operator each liable for half the appointed person’s remuneration and defining what constitutes remuneration (Reg 6). This complements any general funding or financial provisions in the Act.
• Information powers and confidentiality. The Regulation fleshes out the Act’s information and confidentiality provisions by setting rules for compulsory production notices, use of relevant information and confidentiality notices (Regs 9-11). These provisions must be applied consistently with any broader information access or secrecy regimes in other statutes.

Interaction with the Interpretation Act 1987

• Definitions and interpretation. Reg 3 expressly notes that the Interpretation Act 1987 contains definitions and other provisions that affect interpretation and application. Practically, this means that terms in the Regulation and the Act are to be interpreted using the interpretation and commencement rules contained in the Interpretation Act. This affects timing, service, notices and other matters governed by statutory interpretation principles.

Interaction with other statutes and obligations

• Compulsory disclosure required by other Acts. The Regulation permits disclosure of confidential information where “required by another Act or law” (Reg 11(2)(d)). That means the confidentiality shield is subordinated to other statutory obligations, for example, disclosure requirements under legislation requiring reporting to regulators, taxation laws, or court orders. The Regulation does not specify which Acts would require disclosure; such determinations must be made against the specific provisions of the other statutes.
• Use of information limited to Act purposes. Reg 10 constrains the appointed person’s use of relevant information to the purposes of the Act. This restriction may intersect with privacy, public records, freedom of information or other information-handling regimes that impose broader obligations or rights. The Regulation does not displace the application of those regimes, but it does signal the intended scope of the appointed person’s use of information.

Potential tension points

• Publication versus confidentiality. The Regulation requires that the appointed person publish notice of the determination within 14 days (Reg 8) while permitting notifiers to designate supplied information as confidential and restricting disclosure (Reg 11). The Regulation does not prescribe a mechanism for redaction in the published notice or identify which parts of the determination must remain confidential. Reconciling the obligation to publish a notice and the duty not to disclose confidential material will require the appointed person to apply Reg 11’s exceptions and to ensure the published notice complies with both obligations.
• Obligations under other laws to produce information. A compelled production notice is allowed only if the information could not reasonably be obtained by other means (Reg 9(2)). However, if another statute separately empowers or compels the collection or disclosure of the same information, the interplay will depend on the other statute’s terms. The Regulation recognises that “another Act or law” may require disclosure (Reg 11(2)(d)).

Overall, the Regulation functions as a procedural complement to the Act, and its practical legal effect will depend on how it is applied alongside the Act and other statutes that govern confidentiality, disclosure, financial liability and administrative process.

The Regulation contains three items that bear directly on commencement, name and amendment history. It gives its formal name as the Port of Newcastle (Extinguishment of Liability) Regulation 2023 (Reg 1). It provides that the Regulation “commences on the day on which it is published on the NSW legislation website” (Reg 2). The Regulation’s text does not list any amendments or prior versions. No schedules or transitional arrangements are included in the supplied text.

What the text records

• Title and year. The Regulation is titled Port of Newcastle (Extinguishment of Liability) Regulation 2023 (Reg 1).
• Commencement. It commenced on publication on the NSW legislation website (Reg 2). The text does not provide the publication date itself. The effect is that the Regulation becomes operative from the website publication date, as stated.
• No internal amendment provisions. The supplied Regulation does not contain clauses that amend other instruments nor does it record any prior amendments. It does not contain a clause stating it amends or replaces any earlier subordinate instrument.

How to interpret the absence of amendment entries

• Lack of amendment history in the text does not preclude later amendment. The Regulation as supplied is the operative instrument. Any subsequent amendments would be recorded by the NSW Parliamentary Counsel’s Office and published on the legislation website. Users of the Regulation should verify the current status and ensure there have been no subsequent amending regulations.
• Reliance on external version control. Because the Regulation refers to commencement by publication on the NSW legislation website, the authoritative version, including any amendments, will be the consolidated version maintained by that website. The Regulation itself provides no historical notes on prior versions, repeal dates, or amendment schedules.

Interaction with the Act and future amendments

• The Regulation operationalises specific sections of the Act, and future amendments to the Act affecting those sections could require the Regulation to be amended. Likewise, the Regulation could be amended to change procedural timeframes, disclosure rules, or cost allocation. Any such changes will be captured via amending instruments and published on the legislation website.

Practical recommendation

• Users should consult the consolidated instrument on the NSW legislation website for the current text and any amendment history. The Regulation’s commencement rule requires publication on that site, and subsequent changes will also be recorded there. The supplied Regulation text contains no amendment history entries and therefore should be treated as the original 2023 instrument unless superseded.

The Regulation’s text does not include or cite any court decisions, statutory appeals, or litigation outcomes. The instrument itself is procedural and does not record any litigation that has tested its provisions. It names the parent Act and refers to the Interpretation Act 1987, but the provided text contains no references to judicial decisions, tribunal determinations or case law.

What the absence of litigation history in the Regulation means for practitioners

• No reported cases within the instrument. Because the Regulation text does not list litigation, it does not disclose whether any disputes about these procedural rules have been litigated. Where parties anticipate disagreement about the Regulation’s application, relevant judicial or tribunal decisions may be found in case law databases or administrative law reports rather than in the Regulation.
• Potential for judicial review and confidentiality disputes. The Regulation creates procedural duties and confidentiality protections that could give rise to disputes suitable for judicial review or claims in confidence. For example, disputes might arise over whether a compulsory production notice met the “could not reasonably be obtained by other means” threshold (Reg 9(2)), whether the appointed person made a reasonable decision to extend the prescribed period under Reg 4(1)(b)-(2), or whether disclosure of confidential information was lawfully required under another Act (Reg 11(2)(d)). The Regulation does not itself record any such litigation.
• Enforcement and remedy questions. Because the Regulation does not include specific penalties, litigated disputes are likely to invoke remedies available under the Act, administrative law (including judicial review for procedural fairness or lawfulness), or common law causes of action such as breach of confidence. Practitioners should search contemporaneous case law if a precedent or interpretation is required.

How practitioners should proceed when seeking precedent

• Check the Act. The Act may include appeals or review procedures that channel disputes to particular forums. The Regulation operates as a supplement to the Act.
• Search administrative law and equity decisions. Given the confidentiality and production provisions, case law on compulsory production, equitable breach of confidence, and judicial review of administrative decisions are likely to be relevant to disputes about the Regulation’s application.
• Monitor tribunal and court lists. Any litigation testing the regulation’s procedural architecture will be recorded in court and tribunal systems; the Regulation does not itself provide that record.

In sum, the Regulation contains no litigation history. For concrete authoritative interpretations or precedents, practitioners must consult external judicial decisions and the Act’s provisions.

This Regulation is short and precise but contains several specific points that can be operational pitfalls for parties who do not track timing, notice content, confidentiality mechanics and cost allocation. The following are concrete issues to watch for, with references to the relevant provisions.

1. Deadlines and extension mechanics

• Six-month default but one-off 12-month extension. The appointed person can extend the prescribed period to 12 months only by written notice to the Treasurer and the Port operator that includes reasons demonstrating that additional time is reasonable (Reg 4(1)(b)-(2)). The notice must include reasons. Failing to receive or to record such notice could be dispositive of whether the extended period applies.
• First draft triggers a three-month extension only. If the appointed person issues a draft determination before the end of the prescribed period, the Regulation automatically extends the prescribed period by three months, but only in relation to the first draft determination (Reg 4(3)-(4)). Parties should anticipate that the first draft has this temporal effect and plan submissions accordingly.

2. Submission timing and late material

• Minimum submission period and finality. The submission period for a draft determination is at least 42 days (Reg 7(5)). The appointed person may extend this period if they consider the extension reasonable and necessary (Reg 7(3)). Critically, the appointed person is not required to consider submissions made after the end of the submission period (Reg 7(2)). Parties must ensure timely and comprehensive submissions within the window.

3. Equal financial liability for remuneration

• Half-and-half allocation. The State and the Port operator are each liable to pay half of the appointed person’s remuneration (Reg 6(1)). Remuneration includes the agreed fee and reasonable costs and disbursements (Reg 6(2)). Parties should budget for their share and agree procedures for invoicing and payment. There is no detail in the Regulation on dispute resolution if a party refuses to pay its share.

4. Compulsory production notices are constrained but consequential

• Reasonable-obtainment threshold. The appointed person may issue a compulsory production notice only where the information could not reasonably be obtained by other means (Reg 9(2)). That phrase is not defined in the Regulation and may be contested. Parties should record steps taken to preserve, locate and make available relevant material.
• “Reasonable steps” standard for compliance. Persons to whom a compulsory production notice is issued must take reasonable steps to comply (Reg 9(4)). The Regulation does not define “reasonable steps,” creating uncertainty about adequacy of searches and production.

5. Confidentiality protections are limited

• Written confidentiality notice required. A notifier must give a written confidentiality notice to trigger non-disclosure rules (Reg 11(1)). Parties should ensure that confidentiality claims are made in writing and keep copies.
• Exceptions allow disclosure to employees and advisers. The appointed person may disclose confidential information to employees or advisers engaged on confidential terms if necessary for making the determination (Reg 11(2)(a)(i)-(ii)). That narrows the protection practically available and requires notifiers to consider who within the appointed person’s office or advisers will see material.
• Other Act or law overrides. Confidentiality is subject to disclosure where “required by another Act or law” (Reg 11(2)(d)). Parties should check whether other statutory reporting obligations or legal processes could compel disclosure.

6. Publication obligation versus confidentiality

• Determination must be public. The appointed person must publish notice of the determination on a publicly available website within 14 days (Reg 8). The Regulation does not specify how confidential material is to be treated in that published notice. Parties should plan for redaction or seek clarification from the appointed person about the form of the public notice.

7. Narrow use of relevant information

• Use limited to Act purposes. The appointed person may use relevant information only for the purposes of the Act (Reg 10). That restriction benefits suppliers of information but may create friction if parties expect wider use of produced material in regulatory or civil proceedings.

8. Lack of explicit enforcement or penalties

• No penalty schedule. The Regulation specifies duties and liabilities but contains no express penalties for breach of the procedural obligations it creates. Parties should consider contractual protections and alternative legal remedies.

9. Definition traps

• Definitions shape scope. “Party” is defined as the Port operator or the State (Reg 3). “Relevant information” is information obtained by the appointed person for the purposes of consideration under the Act, s 7(3). Parties outside that definition may be affected by production notices but should check whether their material would qualify as “relevant information.”

10. Practical website requirement

• Appointed person’s website. The appointed person must publish the notice of determination on a publicly available website they maintain (Reg 8). If the appointed person does not have an existing website, this is a practical requirement they must satisfy, which affects timelines.

These are concrete operational points that should shape a party’s project management, document production, privilege and confidentiality strategy, and budget forecasting. Failure to observe timing windows, to make written confidentiality claims, or to plan for payment of remuneration may create avoidable procedural disadvantages.

The Regulation prescribes a manageable set of procedural steps and document controls. The following is a checklist and practice guidance grounded in the Regulation text to help the appointed person, the Port operator, the State and any person who might receive a compulsory production notice comply with the instrument’s obligations.

1. Calendar and timetable management

• Record the appointment date. The prescribed period references the appointment date under the Act, s 6 (Reg 4(5)). Log that date immediately.
• Track prescribed period deadlines. Default prescribed period is six months from appointment (Reg 4(1)(a)). If the appointed person gives written notice to the Treasurer and the Port operator that additional time is required, the prescribed period becomes 12 months (Reg 4(1)(b)-(2)). Ensure notices are sent and received with contemporaneous records.
• Monitor draft-determination effects. If the appointed person issues a first draft determination before the end of the prescribed period, the prescribed period extends by three months (Reg 4(3)-(4)). Parties should be ready to file submissions within the submission window and to update their calendars for the extended period.

2. Submissions and interaction with draft determinations

• Prepare submissions within the minimum 42-day window. When a draft determination is issued, the submission period is the longer of 42 days or any extension the appointed person grants (Reg 7(5)). File submissions well before the expiry to avoid non-consideration because the Regulation allows the appointed person to ignore late submissions (Reg 7(2)).
• When disagreeing, expect a written response. If the appointed person does not agree with a submission, the appointed person must give the submitting party a written response explaining reasons for disagreeing when the determination is made (Reg 7(1)(b), (4)). Prepare submissions so they identify points for which parties expect reasons in reply.

3. Dealing with compulsory production notices

• Assess whether compulsory production is necessary. The appointed person may issue a compulsory production notice only if the information could not reasonably be obtained by other means (Reg 9(1)-(2)). If you receive such a notice, document steps already taken to preserve and produce the information and be prepared to show that other means were attempted if that defence is needed.
• Take reasonable steps to comply. Persons served with a compulsory production notice must take reasonable steps to comply (Reg 9(4)). Implement a search plan, perform custodial interviews, and collect responsive documents with contemporaneous notes demonstrating the reasonableness of your efforts.

4. Claiming and handling confidentiality

• Serve a written confidentiality notice where appropriate. A notifier must give written notice to trigger the non-disclosure protections (Reg 11(1)). Ensure the confidentiality notice clearly identifies the material and the basis for confidentiality.
• Anticipate limited exceptions. Reg 11(2) allows disclosure to the appointed person’s employees and advisers if necessary for making the determination, where information becomes publicly available, with the notifier’s consent, or where disclosure is required by another Act or law. Be prepared to define scope and protective measures if disclosure to advisers is likely.
• Use contractual measures with advisers. If the appointed person engages advisers who will receive confidential material, request that the advisers be bound by confidentiality terms consistent with Reg 11(2)(a)(ii).

5. Financial and budgeting steps

• Budget for half the appointed person’s remuneration. The State and the Port operator each pay half of the appointed person’s remuneration, defined as the agreed fee plus reasonable costs and disbursements (Reg 6(1)-(2)). Establish invoicing and payment procedures early and agree a mechanism for resolving disputes about “reasonable” costs.
• Record agreements with the appointed person. Ensure that the Treasurer (for the State) and the appointed person document the remuneration amount and that the Port operator has clear documentation of its liability and payment process.

6. Publication compliance and redaction planning

• Expect publication within 14 days. The appointed person must publish notice of the determination on a publicly available website they maintain within 14 days after making the determination (Reg 8). If you supply confidential material, consider seeking clarity about the form of the notice and the extent to which confidential material will be redacted from the published notice.
• Maintain records of the published notice. Keep an archival copy of the published notice and any redaction steps taken.

7. Records and contemporaneous evidence

• Keep contemporaneous records of notices and reasons. If the appointed person gives a written notice seeking extra time, that notice must include reasons (Reg 4(2)). Parties should retain copies of all notices, emails and proof of service.
• Document searches and compliance steps. For compulsory production notices, document the search scope, custodians, search terms and production protocol to show “reasonable steps” were taken (Reg 9(4)).

8. Legal review and interaction with other laws

• Check other statutory obligations. Confidentiality under Reg 11 is subject to disclosure required by another Act or law (Reg 11(2)(d)). Before asserting confidentiality, verify whether other statutes impose disclosure obligations.
• Consider remedies and dispute resolution. The Regulation does not set penalties for non-compliance. If non-compliance arises, consult legal counsel about remedies available under the Act, administrative law and equity.

9. Practical communication

• Coordinate with the appointed person. Good practice is to agree procedural timelines, points of contact and document formats with the appointed person to reduce disputes about timing and production.
• Request extensions promptly when needed. The appointed person may extend the submission period if they consider the extension reasonable and necessary (Reg 7(3)). Submit extension requests with supporting reasons to increase the chance of acceptance.

Following these steps will implement the Regulation’s obligations in a methodical way. The core compliance tasks are managing timeframes, documenting notices and reasons, preparing submissions within the prescribed window, handling confidentiality claims in writing, budgeting for remuneration liability and taking demonstrable, reasonable steps to comply with any compulsory production notice.