Australia: Changes to the Franchising Code of Conduct

Last Updated: 31 August 2010
Article by Bruce Mcgregor

Key summary of the new regulations

The key changes include:

  • a franchise agreement entered into on or after 1 July 1998 (formerly 1 October 1998) must not contain, or require a franchisee to sign, a general release of a franchisor from liability towards the franchisee.
  • A franchisor's annual financial marketing (or other cooperative) fund statement does not need to be audited if 75% of the franchisor's franchisees in Australia who contribute to the fund vote that the franchisor does not have to comply with this requirement and this agreement was reached within 3 months after the end of the financial year. This agreement will remain in force for 3 years.
  • a franchisee's request to the franchisor for a transfer or novation of the franchise agreement must be made in writing. A definition of "novation" has been introduced in the Code.
  • if the term of the franchise agreement is greater than 6 months, a franchisor must notify its franchisee at least 6 months before the end of the term of its decision to renew or not renew the franchise agreement, or to enter into a new franchise agreement.
  • if the term of the franchise agreement is less than 6 months, the franchisor must notify its franchisee at least 1 month before the end of the term of its decision to renew or not to renew the franchise agreement or enter into a new franchise agreement.
  • the complaint handling procedure will require parties to a dispute to approach the resolution of the dispute in a reconciliatory manner. The Code will provide a list of necessary behaviours, including:

    • attending and participating in meetings at reasonable times,
    • making each party's intention clear as to what they are intending to achieve through the mediation,
    • observing confidentiality obligations during the mediation process,
    • refusing to take, or alternatively taking, action during the dispute which may have the affect of damaging the franchise system.
  • the costs of mediation have been clarified to include the following costs: mediator's fee, room hire and any additional input agreed to by the parties (such as expert reports).

A franchisor will be required to amend their disclosure document to include the following:

  • a statement on the front page acknowledging that franchising is a serious undertaking and like any business the franchise or franchisor could fail during the term of the franchise agreement, which may have consequences for franchisees.
  • details of recurring or isolated payments reasonably foreseeable by the franchisor that may be payable by the franchisee to a person other than the franchisor.
  • whether it will require a franchisee to undertake unforeseen significant capital expenditure during the franchise term that was not disclosed by the franchisor before the franchisee entered into the franchise agreement.
  • whether it will attribute its costs incurred in dispute resolution to the franchisee.
  • the circumstances in which the franchisor has unilaterally varied a franchise agreement since 1 July 2010 and in circumstances in which the franchise agreement may be varied, unilaterally, by the franchisor in the future.
  • whether it will impose a confidentiality obligation on the franchisee and details of same.
  • details of the process that will apply in determining end-of-term arrangements for franchisees.
  • whether it will amend the franchise agreement on or before transferring or novating the franchise agreement.

Despite much debate across the sector, the Code has also been amended to include an acknowledgement that nothing in the Code limits any obligation imposed by the common law on the parties to a franchise agreement to act in good faith.

Given the significance of these changes, it is not intended the Code be amended for another 3 to 5 years to allow the sector to consider the effectiveness of the changes.

Practical application of the new regulations

All disclosure documents and franchise agreements issued by a franchisor on and from 1 July 2010 must strictly comply with the new regulations. In addition, a pre-1 July 2010 franchise agreement that is transferred, renewed, extended or the scope is extended post-1 July 2010 must comply with the new regulations.

Given the short time frame, we recommend franchisors urgently consider their disclosure, franchising arrangements and internal procedures to ensure compliance with the new regulations from 1 July 2010.

The obligation to comply with the new regulations is in addition to the existing obligation that the franchisor update its disclosure document within 4 months from the end of the each financial year.

We recommend that franchisors combine their annual update of the disclosure document with steps to ensure Code compliance with the new regulations.

At an internal level, we recommend franchisors carefully consider and possibly their procedures regarding end-of-term arrangements, unilateral variation of franchise agreements and decisions regarding the renewal of franchise agreements.

Further changes likely to affect the franchising sector

We currently have a watching-brief in relation to the following:

  1. later this year the Trade Practices Act will undergo its own changes which will affect, amongst other things, the ACCC's power to conduct spot-audits on franchisors.
  2. the progress of the Franchising (South Australia) Bill 2009.

We will release further news bulletins as developments in the sector occur.

We can assist franchisors in implementing the changes to ensure a best practice standard is achieved and maintained.

If you would like any further information regarding the proposed changes please contact a member of our Franchising team to discuss.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.