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

These regulations may be cited as the Fair Trading (Mining and Resources Industry Land Access Dispute Resolution Code) Regulations 2018.

These regulations come into operation on the day on which they are made.

In these regulations, unless the contrary intention appears—

Act means the Fair Trading Act 1987;

business of primary production means the business of agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, dairy farming, forestry or any other business consisting of the cultivation of soils, the gathering in of crops, the rearing of livestock or the propagation or harvesting of fish or other aquatic organisms;

civil penalty contravention has the same meaning as in Part 7 Division 3A of the Act;

code means the Mining and Resources Industry Land Access Dispute Resolution Code 2018 set out in Schedule 1;

Commissioner means the Small Business Commissioner;

farmer means a person engaged in the business of primary production;

mining operations has the same meaning as in the Mining Act 1971;

mining operator has the same meaning as in the Mining Act 1971;

regulated activities has the same meaning as in the Petroleum and Geothermal Energy Act 2000.

For the purposes of Part 3A of the Act—

the activity of undertaking—

mining operations; or

regulated activities pursuant to a licence under the Petroleum and Geothermal Energy Act 2000, on or in relation to land used for the business of primary production is taken to be an industry (the mining and resources industry); and

the following persons are taken to be participants in the mining and resources industry:

mining operators;

licensees under the Petroleum and Geothermal Energy Act 2000;

farmers.

The code is prescribed as an industry code for the purposes of Part 3A of the Act.

The Small Business Commissioner is responsible for the administration of the code and for the administration of Part 3A of the Act in relation to the code.

A contravention of section 28E of the Act constituted of a contravention of the code is to be subject to a civil penalty under Part 7 Division 3A of the Act.

The expiation fee for an alleged civil penalty contravention involving an alleged contravention or attempted contravention of the code is—

in the case of a body corporate—$4 000; and

in the case of a natural person—$500.

If an authorised officer arranges for mediation of a dispute under the code with the agreement of the parties to the dispute, each of the parties must pay a fee of $195 for each day, or part of a day, on which the mediation occurs.

A fee payable by a person under subregulation (1) is recoverable as a debt due to the Crown.

The Commissioner may waive a fee payable by a person under subregulation (1) if satisfied that it is appropriate to do so in a particular case.

This code may be cited as the Mining and Resources Industry Land Access Dispute Resolution Code 2018.

In this code—

alternative dispute resolution procedure does not include arbitration.

This code applies to a dispute between—

a farmer; and

—

1 or more mining operators; or

the holder or holders of a licence under the Petroleum and Geothermal Energy Act 2000, in relation to access to land used by the farmer for the business of primary production.

If the Commissioner is satisfied, on written application by a party to a dispute to which this code applies—

that the party has made a reasonable attempt to resolve the dispute; and

that the subject matter of the dispute is not frivolous or vexatious, an authorised officer may notify the parties to the dispute in writing that the officer is commencing an alternative dispute resolution procedure in relation to the dispute in accordance with this code.

If an alternative dispute resolution procedure is commenced under this code, a party to the dispute, or another person authorised in writing to attend or participate in the procedure on the party's behalf, must attend or otherwise participate in the procedure, as required by the authorised officer.

A person participating in an alternative dispute resolution procedure—

must act reasonably, fairly, honestly and cooperatively; and

must not mislead, harass, intimidate or oppress another party to the dispute.

A person participating in an alternative dispute resolution procedure must comply with any reasonable request made by the authorised officer in connection with the officer's attempt to assist the parties in the resolution of the dispute, including, without limitation, a request to do 1 or more of the following:

exchange information relevant to the dispute with the other party;

answer questions in respect of matters relevant to the dispute;

attend meetings;

participate in mediation or another form of alternative dispute resolution.

An authorised officer conducting an alternative dispute resolution procedure may request that a person participating in the procedure be a person who is authorised to resolve the dispute.

A request made by an authorised officer under subclause (4) or (5) must be complied with as soon as reasonably practicable, and, in any event, in the case of a written request, within 14 days of the date of the request or such longer period as is allowed by the authorised officer.

The authorised officer conducting an alternative dispute resolution procedure may, for the purposes of attempting to resolve the dispute—

refer the dispute to mediation; or

after consultation with the parties—appoint a person able to provide expert advice on matters relevant to the dispute to assist the officer.

The parties to a dispute are equally liable for the costs of expert advice provided under subclause (7)(b) unless they agree to a different apportionment of the costs.

An authorised officer may suspend (for a specified time or until further notice) or terminate a dispute resolution procedure if the dispute is the subject of—

proceedings before a court or tribunal; or

arbitration; or

another alternative dispute resolution procedure.

An authorised officer may terminate an alternative dispute resolution procedure if the officer forms the view that—

there is no reasonable prospect of resolving the dispute; or

the subject matter of the dispute is frivolous or vexatious.

Following the completion of an alternative dispute resolution procedure, the authorised officer who conducted the procedure must provide the parties with a certificate stating—

the names of the parties; and

the nature of the matters in dispute; and

if the procedure has been terminated under subclause (9) or (10)—that the procedure has been terminated without resolution; and

if the dispute has been resolved—the terms of the resolution.

Unless the authorised officer and the parties otherwise agree in writing, any communication made, or document prepared (including a certificate provided under subclause (11)), in connection with an alternative dispute resolution procedure under this code must be treated as confidential.

However, a certificate provided under subclause (11) may be produced before a court or tribunal.