(1) Subject to sections 40RN, 40RO and 40RP, the Commissioner and the Ombudsman may jointly determine, by legislative instrument:
(a) the kind of conduct that is to be category 1 conduct for the purposes of this Act; and
(b) the kind of conduct that is to be category 2 conduct for the purposes of this Act; and
(c) the kind of conduct that is to be category 3 conduct for the purposes of this Act.
(2) If there is no determination under subsection (1) that applies to particular conduct, the conduct is to be taken to be category 3 conduct for the purposes of this Act.