{"id":"nsw:act-1994-091","name":"Farm Debt Mediation Act 1994","slug":"farm-debt-mediation-act-1994","collection":"act","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"91 of 1994","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":105869,"registerId":"nsw-act-1994-091-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"# Part 1 Preliminary\n\nPart 1 Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"#### 1 Name of Act\n\n1 Name of Act\n\n> This Act may be cited as the [Farm Debt Mediation Act 1994](/view/html/inforce/current/act-1994-091).","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n2 Commencement\n\n> This Act commences 2 months after the date of assent, except in so far as commenced sooner by proclamation.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Object","content":"#### 3 Object\n\n3 Object\n\n> The object of this Act is to provide for the efficient and equitable resolution of matters involving farm debts. Mediation is required before a creditor can take possession of property or other enforcement action under a farm mortgage.\n> \n> **s 3:** Subst 2002 No 82, Sch 1 \\[1\\]. Am 2018 No 16, Sch 1 \\[1\\].","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Definitions","content":"#### 4 Definitions\n\n4 Definitions\n\n> > (1) In this Act:\n> > \n> > approved form means the form approved by the Authority.\n> > \n> > Authority means the New South Wales Rural Assistance Authority constituted by the [Rural Assistance Act 1989](/view/html/inforce/current/act-1989-097).\n> > \n> > business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales.\n> > \n> > creditor means a person to whom a farm debt is for the time being owed by a farmer.\n> > \n> > default, in relation to a farm mortgage, means failure to perform an obligation that, under the terms of the mortgage, is a ground for enforcement action.\n> > \n> > Note—\n> > \n> > Examples of default on the part of a farmer include failure to pay the principal, interest or other money the payment of which is secured by a farm mortgage; failure to keep the property subject to the farm mortgage insured; and failure to submit financial statements required by the creditor.\n> > \n> > draft mediation agreement means a draft agreement prepared under section 18J.\n> > \n> > enforcement action, in relation to a farm mortgage, means taking possession of property under the mortgage or any other action to enforce the mortgage, including the giving of any statutory enforcement notice, or the continuation of any action to that end already commenced, but does not include:\n> > \n> > > (a) the completion of the sale of property held under the mortgage in respect of which contracts were exchanged before the commencement of this Act, or\n> > \n> > > (b) the enforcement of a judgment that was obtained before the commencement of this Act.\n> > \n> > exemption certificate—see section 13.\n> > \n> > farm means land on which a farmer engages in a farming operation.\n> > \n> > farm debt means a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage.\n> > \n> > farm machinery means any of the following things that are commonly used for the purposes of a farming operation:\n> > \n> > > (a) a vehicle, machine or other implement,\n> > \n> > > (b) any other thing of a class prescribed by the regulations.\n> > \n> > farm mortgage includes any interest in, or power over, any farm property securing obligations of the farmer whether as a debtor or guarantor, including any interest in, or power arising from, a hire purchase agreement relating to farm machinery, but does not include:\n> > \n> > > (a) any stock mortgage or any crop or wool lien, or\n> > \n> > > (b) the interest of the lessor of any farm machinery that is leased.\n> > \n> > farming operation—see section 4AB.\n> > \n> > farm property means:\n> > \n> > > (a) a farm or part of a farm, or\n> > \n> > > (b) farm machinery used by a farmer in connection with a farming operation, or\n> > \n> > > (c) an access licence (within the meaning of the [Water Management Act 2000](/view/html/inforce/current/act-2000-092)) held by a farmer in connection with a farming operation.\n> > \n> > farmer means a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement and the personal representatives of a deceased farmer.\n> > \n> > function includes a power, authority or duty.\n> > \n> > hire purchase agreement has the same meaning as it has in the [Duties Act 1997](/view/html/inforce/current/act-1997-123).\n> > \n> > mediation—see section 4AA.\n> > \n> > mediation agreement means an agreement entered into under section 18K.\n> > \n> > mediation request—see section 18B.\n> > \n> > mediator means a person accredited as a mediator under section 16.\n> > \n> > notice inviting mediation—see section 18A.\n> > \n> > prohibition certificate—see section 9.\n> > \n> > statutory enforcement notice means:\n> > \n> > > (a) a notice under section 57 (2) (b) of the [Real Property Act 1900](/view/html/inforce/current/act-1900-025), or\n> > \n> > > (b) a notice under section 111 (2) (b) of the [Conveyancing Act 1919](/view/html/inforce/current/act-1919-006), or\n> > \n> > > (b1) a notice under section 71X (1) (b) of the [Water Management Act 2000](/view/html/inforce/current/act-2000-092), or\n> > \n> > > (c) a notice, given under any Act or statutory instrument, that is prescribed by the regulations as being within the scope of this definition.\n> \n> > (1A) A reference in this Act to satisfactory mediation is a reference to:\n> > \n> > > (a) a mediation that has achieved a resolution of a matter involving a farm debt, or\n> > \n> > > (b) a mediation that has proceeded as far as it reasonably can in an attempt to achieve a resolution of a matter involving a farm debt but has nevertheless failed to resolve the matter, or\n> > \n> > > (c) a mediation specified or of a class described in regulations made for the purposes of this subsection to be a satisfactory mediation.\n> \n> > (2) (Repealed)\n> \n> **s 4:** Am 1996 No 106, Sch 1 \\[1\\]; 1998 No 14, Sch 1 \\[1\\] \\[2\\]; 2002 No 82, Sch 1 \\[2\\] \\[3\\]; 2005 No 95, Sch 1 \\[1\\] \\[2\\]; 2018 No 16, Sch 1 \\[2\\]–\\[4\\].","sortOrder":4},{"sectionNumber":"4AA","sectionType":"section","heading":"Mediation","content":"#### 4AA Mediation\n\n4AA Mediation\n\n> > (1) Mediation is a structured negotiation process in which a mediator, as a neutral and independent party, assists the participants in the process:\n> > \n> > > (a) to communicate effectively with each other, and\n> > \n> > > (b) to reach agreement on the issues in dispute, and\n> > \n> > > (c) to achieve their own resolution of the dispute.\n> \n> > (2) The regulations may declare that any process of a specified kind is, or is not, mediation for the purposes of this Act.\n> \n> **s 4AA:** Ins 2018 No 16, Sch 1 \\[5\\].","sortOrder":5},{"sectionNumber":"4AB","sectionType":"section","heading":"Farming operation","content":"#### 4AB Farming operation\n\n4AB Farming operation\n\n> > (1) A farming operation is a business undertaking that primarily involves one or more of the following activities:\n> > \n> > > (a) agriculture (for example, crop growing and livestock or grain farming),\n> > \n> > > (b) aquaculture,\n> > \n> > > (c) the cultivation or harvesting of timber or native vegetation,\n> > \n> > > (d) any activity involving primary production carried out in connection with an activity referred to in paragraphs (a)–(c).\n> \n> > (2) A farming operation does not include a business undertaking that primarily involves wild harvest fishing or the hunting or trapping of animals, birds or reptiles in the wild.\n> \n> > (3) The regulations may declare that any business undertaking of a specified kind is, or is not, a farming operation for the purposes of this Act.\n> \n> **s 4AB:** Ins 2018 No 16, Sch 1 \\[5\\].","sortOrder":6},{"sectionNumber":"4A","sectionType":"section","heading":"Notes","content":"#### 4A Notes\n\n4A Notes\n\n> Notes included in this Act do not form part of this Act.\n> \n> **s 4A:** Ins 2002 No 82, Sch 1 \\[4\\].","sortOrder":7},{"sectionNumber":"5","sectionType":"section","heading":"Application of Act","content":"#### 5 Application of Act\n\n5 Application of Act\n\n> > (1) This Act applies in respect of creditors only in so far as they are creditors under a farm debt.\n> \n> > (2) This Act does not apply in respect of:\n> > \n> > > (a) a farmer whose property is subject to control under Division 2 of Part X of the [Bankruptcy Act 1966](http://www.legislation.gov.au/) of the Commonwealth, or\n> > \n> > > (b) a farmer whose property is the subject of a bankruptcy petition presented by any person, or\n> > \n> > > (c) a farmer, being a corporation, that is an externally administered corporation within the meaning of the [Corporations Act 2001](http://www.legislation.gov.au/) of the Commonwealth.\n> \n> > (3) This Act does not apply in respect of a farm debt secured by a farm mortgage if:\n> > \n> > > (a) the farmer is in default under the farm mortgage, and\n> > \n> > > (b) the farm mortgage secures all or part of the balance outstanding under an earlier farm mortgage, and\n> > \n> > > (c) the farmer and the creditor have previously entered into a mediation agreement under this Act in relation to the farm debt.\n> \n> **s 5:** Am 1998 No 14, Sch 1 \\[3\\]; 2001 No 34, Sch 4.18 \\[1\\]; 2018 No 16, Sch 1 \\[6\\].","sortOrder":8},{"sectionNumber":"6","sectionType":"section","heading":null,"content":"#### 6\n\n6 (Repealed)","sortOrder":9},{"sectionNumber":"7","sectionType":"section","heading":"Relationship of Act with other laws","content":"#### 7 Relationship of Act with other laws\n\n7 Relationship of Act with other laws\n\n> > (1) Nothing in this Act affects the operation of the [Contracts Review Act 1980](/view/html/inforce/current/act-1980-016) or any other Act or law that deals with the granting of relief in respect of harsh, oppressive, unconscionable or unjust contracts or on the grounds of hardship.\n> \n> > (2) Nothing in this Act is to be construed as affecting the operation of the [Banking Act 1959](http://www.legislation.gov.au/) of the Commonwealth and, in particular, the duty of the Reserve Bank under Division 2 of Part II of that Act.\n> \n> > (3) Except as otherwise expressly provided by this Act, this Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.\n> \n> > (4) Other than as provided in this section, this Act has effect despite any other Act.\n> \n> **s 7:** Am 2010 No 6, Sch 2.6; 2018 No 16, Sch 1 \\[8\\].","sortOrder":11},{"sectionNumber":"Part 1A","sectionType":"part","heading":"Enforcement action","content":"# Part 1A Enforcement action\n\nPart 1A Enforcement action\n\n**pt 1A:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":12},{"sectionNumber":"Division 1","sectionType":"division","heading":"Prohibition on enforcement action","content":"## Division 1 Prohibition on enforcement action\n\nDivision 1 Prohibition on enforcement action\n\n**pt 1A, div 1:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":13},{"sectionNumber":"8","sectionType":"section","heading":"Exemption certificate required for enforcement action","content":"#### 8 Exemption certificate required for enforcement action\n\n8 Exemption certificate required for enforcement action\n\n> > (1) A creditor must not take enforcement action in respect of a farm mortgage unless an exemption certificate granted to the creditor is in force in respect of the farm debt concerned.\n> > \n> > Maximum penalty:\n> > \n> > > (a) for a corporation—2,500 penalty units, or\n> > \n> > > (b) for an individual—500 penalty units.\n> \n> > (2) Enforcement action taken by a creditor in respect of a farm debt in contravention of this Act is void.\n> \n> > (3) This section does not invalidate any statutory enforcement notice or other process given, served or executed in order to fulfil a condition precedent to the taking of any enforcement action, but operates to prohibit the taking of the action concerned and the enforcement by a court or tribunal of any such notice or process.\n> \n> > (4) Subsection (3) does not affect any proceedings authorised under section 15 (5) to be continued or concluded after the expiry of an exemption certificate.\n> \n> **s 8:** Am 1996 No 106, Sch 1 \\[2\\]. Rep 2018 No 16, Sch 1 \\[10\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":14},{"sectionNumber":"Division 2","sectionType":"division","heading":"Prohibition certificates","content":"## Division 2 Prohibition certificates\n\nDivision 2 Prohibition certificates\n\n**pt 1A, div 2:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":15},{"sectionNumber":"9","sectionType":"section","heading":"Application for prohibition certificate","content":"#### 9 Application for prohibition certificate\n\n9 Application for prohibition certificate\n\n> > (1) A farmer who is in default and who has requested a creditor to mediate in respect of the farm debt concerned may apply to the Authority for a certificate prohibiting the creditor from taking enforcement action (a prohibition certificate).\n> \n> > (2) An application for a prohibition certificate may be made whether or not the farmer has been given a notice inviting mediation in respect of the farm debt.\n> \n> > (3) An application is to be in the approved form.\n> \n> **s 9:** Am 2002 No 82, Sch 1 \\[5\\] \\[6\\]. Rep 2018 No 16, Sch 1 \\[10\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":16},{"sectionNumber":"9A","sectionType":"section","heading":null,"content":"#### 9A\n\n9A, 9B (Repealed)","sortOrder":17},{"sectionNumber":"10","sectionType":"section","heading":"Grant or refusal of prohibition certificate","content":"#### 10 Grant or refusal of prohibition certificate\n\n10 Grant or refusal of prohibition certificate\n\n> > (1) The Authority may, on application, grant or refuse a prohibition certificate.\n> \n> > (2) The Authority must grant a prohibition certificate if:\n> > \n> > > (a) the farmer is in default under the farm mortgage, and\n> > \n> > > (b) the farmer has given the creditor a mediation request in respect of the farm debt concerned, and\n> > \n> > > (c) no exemption certificate is in force in relation to the farm mortgage, and\n> > \n> > > (d) the Authority is satisfied that there is at least one additional ground for granting the prohibition certificate.\n> \n> > (3) Each of the following is an additional ground for granting a prohibition certificate:\n> > \n> > > (a) the farmer has attempted to mediate in good faith throughout the period of 3 months commencing on the day on which the mediation request was given, but no satisfactory mediation has taken place,\n> > \n> > > (b) the creditor has failed to respond to a mediation request in respect of the farm debt within the period required by Part 2 (or within such longer period as the Authority considers is reasonable in the circumstances),\n> > \n> > > (c) the creditor has indicated in writing to the Authority or the farmer that the creditor does not wish to enter into or proceed with mediation,\n> > \n> > > (d) the creditor has, in any other manner, declined to mediate (whether under this Act or under a corresponding law of another State or Territory).\n> \n> > (4) However, the Authority may refuse to grant a prohibition certificate where the creditor has failed to respond to a mediation request if the Authority is satisfied that:\n> > \n> > > (a) the creditor’s failure to respond is justified in the circumstances, and\n> > \n> > > (b) the creditor intends to mediate within a period that is reasonable in the circumstances.\n> \n> **s 10:** Am 1996 No 106, Sch 1 \\[3\\] \\[4\\]. Rep 2018 No 16, Sch 1 \\[10\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":19},{"sectionNumber":"11","sectionType":"section","heading":"Prohibition certificate not to be issued while exemption certificate in force","content":"#### 11 Prohibition certificate not to be issued while exemption certificate in force\n\n11 Prohibition certificate not to be issued while exemption certificate in force\n\n> No prohibition certificate can be issued by the Authority in relation to a farm mortgage while an exemption certificate is in force in relation to the farm mortgage.\n> \n> **s 11:** Am 1996 No 106, Sch 1 \\[5\\]–\\[7\\]; 1998 No 14, Sch 1 \\[4\\] \\[5\\]; 2002 No 82, Sch 1 \\[8\\]–\\[13\\]; 2004 No 52, Sch 5 \\[1\\]. Rep 2018 No 16, Sch 1 \\[10\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":20},{"sectionNumber":"11AA","sectionType":"section","heading":null,"content":"#### 11AA\n\n11AA, 11A (Repealed)","sortOrder":21},{"sectionNumber":"11B","sectionType":"section","heading":null,"content":"#### 11B\n\n11B, 11C\n\n(Renumbered as sections 18M, 18N)","sortOrder":23},{"sectionNumber":"12","sectionType":"section","heading":"Duration of prohibition certificate","content":"#### 12 Duration of prohibition certificate\n\n12 Duration of prohibition certificate\n\n> A prohibition certificate takes effect when it is issued and remains in force for a period of 6 months.\n> \n> **s 12:** Am 2002 No 82, Sch 1 \\[24\\]–\\[26\\]. Rep 2018 No 16, Sch 1 \\[17\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":24},{"sectionNumber":"12A","sectionType":"section","heading":null,"content":"#### 12A\n\n12A\n\n(Renumbered as section 18C)","sortOrder":25},{"sectionNumber":"Division 3","sectionType":"division","heading":"Exemption certificates","content":"## Division 3 Exemption certificates\n\nDivision 3 Exemption certificates\n\n**pt 1A, div 3:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":26},{"sectionNumber":"13","sectionType":"section","heading":"Application for exemption certificate","content":"#### 13 Application for exemption certificate\n\n13 Application for exemption certificate\n\n> > (1) A creditor under a farm mortgage may apply to the Authority for a certificate that this Act does not apply to the farm mortgage (an exemption certificate).\n> \n> > (2) An application is to be in the approved form.\n> \n> **s 13:** Am 1998 No 14, Sch 1 \\[7\\]; 2002 No 82, Sch 1 \\[28\\]. Rep 2018 No 16, Sch 1 \\[19\\]. Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":27},{"sectionNumber":"14","sectionType":"section","heading":"Grant or refusal of exemption certificate","content":"#### 14 Grant or refusal of exemption certificate\n\n14 Grant or refusal of exemption certificate\n\n> > (1) The Authority may, on application, grant or refuse an exemption certificate.\n> \n> > (2) The Authority must grant an exemption certificate if:\n> > \n> > > (a) the farmer is in default under the farm mortgage, and\n> > \n> > > (b) no prohibition certificate is in force in relation to the farm mortgage, and\n> > \n> > > (c) the Authority is satisfied that there is at least one additional ground for granting the exemption certificate.\n> \n> > (3) Each of the following is an additional ground for granting an exemption certificate:\n> > \n> > > (a) the farmer has, when in default, given a mediation request to the creditor and satisfactory mediation has taken place following the request,\n> > \n> > > (b) the farm debt is secured by a farm mortgage over farm property in another State or Territory and in New South Wales and mediation (equivalent to satisfactory mediation) has taken place under a corresponding law of that State or Territory in respect of that part of the farm debt that is secured by a farm mortgage over farm property in New South Wales,\n> > \n> > > (c) the creditor has given the farmer a notice inviting mediation and has attempted to mediate in good faith throughout the period of 3 months (or such longer period as has been agreed by the creditor for the purposes of this section by notice in writing given to the farmer) commencing on the day on which the notice was given,\n> > \n> > > (d) the farmer has failed to respond to a notice inviting mediation within the period required by Part 2 (or within such longer period as the Authority considers is reasonable in the circumstances),\n> > \n> > > (e) the farmer has failed to take part in mediation in good faith or has unreasonably delayed entering into or proceeding with mediation in respect of the farm debt,\n> > \n> > > (f) the farmer has indicated in writing to the Authority or to the creditor that the farmer does not wish to enter into or proceed with mediation in respect of the farm debt,\n> > \n> > > (g) the farmer has, in any other manner, declined to mediate (whether under this Act or under a corresponding law of another State or Territory).\n> \n> > (4) However, the Authority may refuse to grant an exemption certificate if satisfied that:\n> > \n> > > (a) in the circumstances, the farmer is justified in declining to mediate, and\n> > \n> > > (b) the farmer intends to mediate within a period that is reasonable in the circumstances.\n> \n> > (5) A failure by a creditor to agree to reduce or forgive any debt does not, of itself, demonstrate a lack of good faith on the part of a creditor in attempting to mediate.\n> \n> **s 14:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":28},{"sectionNumber":"15","sectionType":"section","heading":"Duration of exemption certificate","content":"#### 15 Duration of exemption certificate\n\n15 Duration of exemption certificate\n\n> > (1) An exemption certificate takes effect when it is issued and remains in force until the date on which the effective period ends.\n> \n> > (2) The effective period for an exemption certificate is:\n> > \n> > > (a) if satisfactory mediation in respect of the farm debt concerned has taken place, or the farmer has failed to take part in mediation in good faith—the period of 3 years commencing on the last date of the mediation, or\n> > \n> > > (b) if the farmer has indicated in writing that the farmer does not wish to enter into or proceed with mediation—the period of 3 years commencing on the date the indication was given to the Authority or creditor, or\n> > \n> > > (c) if the farmer has failed to respond to a notice inviting mediation within the period of 20 business days (or any longer period allowed by the Authority for the purposes of determining the application for the exemption certificate)—the period of 3 years commencing immediately after the end of the period required or allowed for the response, or\n> > \n> > > (d) in any other case—the period of 3 years commencing on the date the certificate was issued.\n> \n> > (3) An exemption certificate may not be issued after the date on which it would, if issued, expire under subsection (2).\n> \n> > (4) An exemption certificate is to specify the date on which it expires.\n> \n> > (5) The expiry of an exemption certificate does not affect any proceedings for recovery of a farm debt, or for the exercise or enforcement of any right of the creditor, already taken or commenced by a creditor while the certificate was in force, and any such proceedings may be continued and concluded as if the certificate were still in force.\n> \n> > (6) The reference in subsection (5) to the commencement of proceedings does not include a reference to the giving of any statutory enforcement notice or other action taken in order to fulfil a condition precedent to the enforcement of a right otherwise than through proceedings in a court or tribunal.\n> \n> **s 15:** Ins 2018 No 16, Sch 1 \\[9\\].","sortOrder":29},{"sectionNumber":"Part 2","sectionType":"part","heading":"Mediation","content":"# Part 2 Mediation\n\nPart 2 Mediation\n\n**pt 2 div 4, hdg:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":30},{"sectionNumber":"16","sectionType":"section","heading":"Accreditation of mediators","content":"#### 16 Accreditation of mediators\n\n16 Accreditation of mediators\n\n> > (1) The Authority may accredit or reaccredit persons as mediators for the purposes of this Act.\n> \n> > (2) The regulations may make provision for or with respect to the accreditation of mediators (including, without limitation, for or with respect to applications for, and conditions of, accreditation and the suspension and cancellation of accreditation).\n> \n> **pt 2, div 2 (ss 16–18B):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":32},{"sectionNumber":"17","sectionType":"section","heading":"Functions of mediators","content":"#### 17 Functions of mediators\n\n17 Functions of mediators\n\n> > (1) A mediator has the following functions:\n> > \n> > > (a) to mediate, or attempt to mediate, between the participants in the mediation for the purpose of arriving at an agreement for the present arrangements and future conduct of financial relations among them,\n> > \n> > > (b) such other functions as are conferred or imposed on the mediator by or under this or any other Act.\n> \n> > (2) It is not a function of a mediator:\n> > \n> > > (a) to advise a farmer or creditor about the law, or\n> > \n> > > (b) to encourage or assist a farmer or creditor in reserving or establishing legal rights, or\n> > \n> > > (c) to act as an adjudicator or arbitrator.\n> \n> **pt 2, div 2 (ss 16–18B):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":33},{"sectionNumber":"18A","sectionType":"section","heading":"Creditor-initiated mediation","content":"#### 18A Creditor-initiated mediation\n\n18A Creditor-initiated mediation\n\n> > (1) A creditor under a farm mortgage may give a farmer who is in default under the mortgage a notice of invitation to participate in mediation (a notice inviting mediation) in respect of the farm debt concerned.\n> \n> > (2) The notice must specify that a failure of the farmer to respond to the notice within the period required by this section may constitute a ground for the grant of an exemption certificate.\n> \n> > (3) The farmer must respond to the notice within 20 business days after receiving the notice.\n> \n> > (4) A notice inviting mediation, or a farmer’s response, is to be in writing in the approved form.\n> \n> **pt 2, div 2 (ss 16–18B):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":35},{"sectionNumber":"18B","sectionType":"section","heading":"Farmer-initiated mediation","content":"#### 18B Farmer-initiated mediation\n\n18B Farmer-initiated mediation\n\n> > (1) A farmer who owes money to a creditor under a farm mortgage may, by notice given to the creditor, request mediation in relation to the farm debt concerned (a mediation request).\n> \n> > (2) The mediation request must specify that a failure of the creditor to respond to the request within the period required by this section may constitute a ground for the grant of a prohibition certificate.\n> \n> > (3) A mediation request may be made whether or not the farmer is in default. However, a mediation request may not be made if the creditor has given the farmer a notice inviting mediation in respect of the farm debt.\n> \n> > (4) The creditor must respond to the mediation request within 20 business days after receiving the request.\n> > \n> > Note—\n> > \n> > See section 10 for provisions relating to the grant of a prohibition certificate where a creditor declines to mediate with a farmer who is in default.\n> \n> > (5) A mediation request, and a creditor’s response, is to be in writing in the approved form.\n> \n> **pt 2, div 2 (ss 16–18B):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":36},{"sectionNumber":"18C","sectionType":"section","heading":"Farmer to nominate mediator","content":"#### 18C Farmer to nominate mediator\n\n18C Farmer to nominate mediator\n\n> > (1) If a farmer and creditor agree to enter into mediation in respect of a farm debt, the farmer must nominate a mediator.\n> \n> > (2) A creditor cannot nominate a mediator but must accept or reject the mediator nominated by a farmer.\n> \n> > (3) If a creditor rejects the mediator nominated by a farmer, the farmer must nominate a panel of at least 3 other mediators. The creditor must choose from the panel one mediator to mediate between the farmer and the creditor.\n> \n> **s 18C (previously s 12A):** Ins 2002 No 82, Sch 1 \\[27\\]. Renumbered 2018 No 16, Sch 1 \\[18\\].","sortOrder":38},{"sectionNumber":"18D","sectionType":"section","heading":"Requests for information","content":"#### 18D Requests for information\n\n18D Requests for information\n\n> > (1) A mediator may facilitate the exchange of information between the parties to the mediation for the purpose of assisting the parties to resolve the issues between them.\n> \n> > (2) For that purpose, a party to a mediation must give the mediator a copy of any request for information before giving the request to the other party.\n> \n> > (3) In preparing a summary of the mediation under this Part, the mediator is to have regard to whether any request for information made by a party was reasonable, and whether information was provided in response to a request within a reasonable period.\n> \n> > (4) Subsection (3) does not limit the matters to which the mediator is to have regard in preparing a summary of the mediation.\n> \n> **s 18D:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":39},{"sectionNumber":"18E","sectionType":"section","heading":"Conduct of mediation sessions","content":"#### 18E Conduct of mediation sessions\n\n18E Conduct of mediation sessions\n\n> > (1) The procedure for commencing and conducting a mediation session is to be as determined by the Authority.\n> \n> > (1A) Without limiting subsection (1), a mediator may:\n> > \n> > > (a) call a pre-mediation conference, and\n> > \n> > > (b) adjourn a mediation session if it appears that a party would be significantly disadvantaged because of the length of the session, and\n> > \n> > > (c) adjourn or terminate a mediation session if it appears that continuing the session would not be appropriate.\n> \n> > (1B) In determining whether it would be appropriate to continue a mediation session, the mediator is to consider the following matters:\n> > \n> > > (a) the duration of the mediation session,\n> > \n> > > (b) whether the parties are able and willing to participate in the mediation session,\n> > \n> > > (c) whether the parties are engaging in the mediation in good faith,\n> > \n> > > (d) any risk to the health or safety of the parties resulting from the conduct of the mediation session,\n> > \n> > > (e) any other matters that, in the opinion of the mediator, are relevant in the circumstances.\n> \n> > (1C) Mediation sessions are to be held at a place and time, and in a manner, that is reasonably convenient for the parties.\n> \n> > (2) Mediation sessions are to be conducted with as little formality and technicality, and with as much expedition, as possible.\n> \n> > (3) The rules of evidence do not apply to mediation sessions.\n> \n> > (4) A mediation session is not open to the public.\n> \n> > (5) Persons who are not parties to a mediation session:\n> > \n> > > (a) may be present at or participate in the session in an advisory or representative capacity if authorised to do so under section 18H, or\n> > \n> > > (b) may otherwise be present at or participate in the session with the permission of the mediator.\n> \n> **s 18E (previously s 14):** Am 1996 No 106, Sch 1 \\[8\\]; 2002 No 82, Sch 1 \\[29\\]; 2018 No 16, Sch 1 \\[20\\]–\\[22\\]. Renumbered 2018 No 16, Sch 1 \\[30\\].","sortOrder":40},{"sectionNumber":"18F","sectionType":"section","heading":"Confidentiality of mediation sessions","content":"#### 18F Confidentiality of mediation sessions\n\n18F Confidentiality of mediation sessions\n\n> > (1) Evidence of anything said or admitted during a mediation session and a document prepared for the purposes of, in the course of or pursuant to, a mediation session are not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence.\n> \n> > (2) In this section, mediation session includes any steps taken in the course of making arrangements for a mediation session or in the course of the follow-up of a mediation session.\n> \n> > (3) This section does not apply to the following documents:\n> > \n> > > (a) a mediation agreement,\n> > \n> > > (b) a contract, deed, mortgage or other instrument entered into as a result of, or pursuant to, a mediation agreement,\n> > \n> > > (c) a summary of mediation under section 18O.\n> \n> > (4) This section does not apply to proceedings commenced with respect to any act or omission in connection with which the information has been disclosed on the basis of preventing or minimising the danger of injury to any person or damage to any property.\n> \n> **s 18F (previously s 15):** Am 2002 No 82, Sch 1 \\[30\\]; 2018 No 16, Sch 1 \\[23\\]–\\[25\\]. Renumbered 2018 No 16, Sch 1 \\[30\\].","sortOrder":41},{"sectionNumber":"18G","sectionType":"section","heading":"Disclosure of information","content":"#### 18G Disclosure of information\n\n18G Disclosure of information\n\n> A person must not disclose any information obtained in a mediation session or in connection with the administration or execution of this Act unless the disclosure is made:\n> \n> > (a) with the consent of the person from whom the information was obtained, or\n> \n> > (b) in connection with the administration or execution of this Act, or\n> \n> > (c) as reasonably required for the purpose of referring any party or parties to mediation to any person, agency, organisation or other body and, with the consent of the parties to the mediation, for the purpose of aiding in the resolution of an issue between those parties, or\n> \n> > (c1) to prevent or minimise the danger of injury to any person or damage to any property, or\n> \n> > (d) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth, or\n> \n> > (e) with other lawful excuse.\n> \n> Maximum penalty: 100 penalty units.\n> \n> **s 18G (previously s 16):** Am 2018 No 16, Sch 1 \\[26\\] \\[27\\]. Renumbered 2018 No 16, Sch 1 \\[30\\].","sortOrder":42},{"sectionNumber":"18H","sectionType":"section","heading":"Representation and assistance during mediation","content":"#### 18H Representation and assistance during mediation\n\n18H Representation and assistance during mediation\n\n> > (1) A party to mediation is not entitled to be represented by an agent unless it appears to the mediator that:\n> > \n> > > (a) an agent should be permitted to facilitate the mediation, and\n> > \n> > > (b) the agent proposed to be appointed has sufficient knowledge of the issue concerned to enable the agent to represent the party effectively,\n> > \n> > and the mediator so approves.\n> \n> > (2) Subsection (1) does not prevent a corporation within the meaning of the [Corporations Act 2001](http://www.legislation.gov.au/) of the Commonwealth that is a party to a mediation from being represented at the mediation by an officer of the corporation.\n> \n> > (3) If the mediator approves of the representation of a party by an agent, the approval of the mediator may be given subject to such conditions as the mediator considers reasonable to ensure that the other party to the mediation is not substantially disadvantaged by the agent appearing at the mediation and, if the mediator does so approve, the entitlement of the agent to represent the party is subject to compliance by the agent with the conditions.\n> \n> > (3A) Any person representing a party to a mediation (whether or not the person is himself or herself a party to the mediation) must not attend a mediation session unless the person has been given written authority by the party the person represents to enter into a mediation agreement.\n> \n> > (3B) (Repealed)\n> \n> > (4) A farmer who is a party to mediation is entitled to have present at any mediation session an advisor, who may but need not be legally or otherwise professionally qualified, and is entitled to call upon that advisor for advice and counsel during the session.\n> \n> > (5) Nothing in subsection (4) affects the operation of section 18E (1)–(3).\n> \n> > (6) A contravention of this section does not invalidate a mediation.\n> \n> **s 18H (previously s 17):** Am 1996 No 106, Sch 1 \\[9\\]; 2001 No 34, Sch 4.18 \\[2\\]; 2002 No 82, Sch 1 \\[31\\]; 2018 No 16, Sch 1 \\[23\\] \\[28\\] \\[29\\]. Renumbered 2018 No 16, Sch 1 \\[30\\].","sortOrder":43},{"sectionNumber":"18I","sectionType":"section","heading":"Costs of mediation","content":"#### 18I Costs of mediation\n\n18I Costs of mediation\n\n> > (1) The parties to a mediation are to pay:\n> > \n> > > (a) an equal share of any fee charged by the mediator for the mediation, and\n> > \n> > > (b) their own costs associated with attendance at the mediation.\n> \n> > (2) If more than one mediation session is required as a result of a party’s failure to give a person representing the party authority to enter into a mediation agreement, the party is to pay the whole of the mediator’s fee for the session and all costs associated with the attendance by the other party at the additional session.\n> \n> > (3) The parties may agree to apportion costs otherwise than as provided by this section.\n> \n> > (4) The Authority is not liable for any of the costs of or associated with mediation for the purposes of this Act, except in its capacity as a creditor.\n> \n> **s 18I:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":44},{"sectionNumber":"Division 4","sectionType":"division","heading":"Mediation agreements","content":"## Division 4 Mediation agreements\n\nDivision 4 Mediation agreements","sortOrder":45},{"sectionNumber":"18J","sectionType":"section","heading":"Draft mediation agreements","content":"#### 18J Draft mediation agreements\n\n18J Draft mediation agreements\n\n> > (1) If a mediator is satisfied that a farmer and a creditor who are parties to a mediation have agreed, or are about to agree, on an issue between them, the mediator must personally prepare for the consideration of the parties a draft agreement setting out the main points of agreement on the issue (draft mediation agreement).\n> \n> > (2) The draft mediation agreement must include a statement, in the approved form, relating to the cooling off period for the proposed mediation agreement.\n> \n> **ss 18J–18L:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":46},{"sectionNumber":"18K","sectionType":"section","heading":"Mediation agreements","content":"#### 18K Mediation agreements\n\n18K Mediation agreements\n\n> > (1) If the parties are satisfied that a draft mediation agreement sets out the main points agreed on by them during, or within 24 hours after the end of, the mediation, the parties may enter into a mediation agreement by signing the draft agreement.\n> \n> > (2) A mediation agreement is binding on the parties to the agreement.\n> \n> > (3) A mediation agreement may be varied or replaced by a further agreement in writing between the parties.\n> \n> > (4) If the mediation agreement does not include the statement relating to the cooling off period for the agreement as required by this Part, the creditor who is a party to the agreement is to give to the farmer a statement relating to the cooling off period.\n> \n> > (5) The statement given by the creditor is to be in the approved form.\n> \n> **ss 18J–18L:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":47},{"sectionNumber":"18L","sectionType":"section","heading":"Cooling off period for mediation agreement","content":"#### 18L Cooling off period for mediation agreement\n\n18L Cooling off period for mediation agreement\n\n> > (1) There is to be a cooling off period for each mediation agreement between a farmer and a creditor.\n> \n> > (2) The cooling off period expires:\n> > \n> > > (a) at 5 pm on the 10th business day after the day on which the mediation agreement is entered into, or\n> > \n> > > (b) if a statement relating to the cooling off period was not included in the draft mediation agreement—at 5 pm on the 10th business day after the day on which a statement relating to the cooling off period is given to the farmer by the creditor as required by this Part.\n> \n> > (3) The cooling off period may be waived or varied by agreement in writing between the farmer and the creditor.\n> \n> > (4) The Authority may not issue an exemption certificate to a creditor on the ground that satisfactory mediation in respect of a farm debt has taken place if:\n> > \n> > > (a) a mediation agreement is in force in relation to the farm debt, and\n> > \n> > > (b) the cooling off period has not expired.\n> \n> **ss 18J–18L:** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":48},{"sectionNumber":"18M","sectionType":"section","heading":"Rights during cooling off period","content":"#### 18M Rights during cooling off period\n\n18M Rights during cooling off period\n\n> > (1) The farmer may, during a cooling off period arising under section 18L, serve a written notice on the creditor or the creditor’s Australian legal practitioner to the effect that the farmer rescinds the mediation agreement subject to the cooling off period.\n> \n> > (2) The notice of rescission must be signed by the farmer or the farmer’s Australian legal practitioner.\n> \n> > (3) On service of a notice of rescission signed in accordance with this section, the mediation agreement is taken to be rescinded ab initio.\n> \n> > (4) If rescission occurs, the farmer or creditor is entitled to make a claim for such compensation, adjustment or accounting as is just and equitable between the farmer and the creditor where a party has received a benefit under the mediation agreement.\n> \n> > (5) This section and section 18L do not affect any right or remedy available otherwise than under this section or section 18L.\n> \n> > (6) A creditor may not make a claim under subsection (4) if the only basis of the claim is the rescission of the mediation agreement under this section.\n> \n> **s 18M (previously s 11B):** Ins 1998 No 14, Sch 1 \\[6\\]. Am 2002 No 82, Sch 1 \\[21\\] \\[22\\]; 2005 No 98, Sch 3.25; 2018 No 16, Sch 1 \\[11\\]–\\[13\\]. Renumbered 2018 No 16, Sch 1 \\[16\\].","sortOrder":49},{"sectionNumber":"18N","sectionType":"section","heading":"Implementing mediation agreement","content":"#### 18N Implementing mediation agreement\n\n18N Implementing mediation agreement\n\n> > (1) (Repealed)\n> \n> > (2) A creditor who is a party to any contract, deed, mortgage or other instrument which purportedly results from, or is pursuant to, a mediation agreement between the creditor and a farmer but which fails to reflect the relevant mediation agreement is guilty of an offence.\n> > \n> > Maximum penalty (subsection (2)): 100 penalty units.\n> \n> **s 18N (previously s 11C):** Ins 2002 No 82, Sch 1 \\[23\\]. Am 2018 No 16, Sch 1 \\[14\\] \\[15\\]. Renumbered 2018 No 16, Sch 1 \\[16\\].","sortOrder":50},{"sectionNumber":"18O","sectionType":"section","heading":"Summary of mediation","content":"#### 18O Summary of mediation\n\n18O Summary of mediation\n\n> At the end of a mediation, a mediator must fill in the form approved by the Authority for setting out a summary of the conduct and results of the mediation (including any mediation agreement entered into by the parties).\n> \n> **s 18O (previously s 18A):** Ins 2002 No 82, Sch 1 \\[32\\]. Am 2018 No 16, Sch 1 \\[31\\] \\[32\\]. Renumbered 2018 No 16, Sch 1 \\[33\\].","sortOrder":51},{"sectionNumber":"Division 5","sectionType":"division","heading":"Internal review","content":"## Division 5 Internal review\n\nDivision 5 Internal review\n\n**pt 2, div 5 (ss 18P, 18Q):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":52},{"sectionNumber":"18P","sectionType":"section","heading":"Internal review of decisions of Authority","content":"#### 18P Internal review of decisions of Authority\n\n18P Internal review of decisions of Authority\n\n> > (1) An aggrieved person may apply to the Authority for a review (internal review) of any of the following decisions:\n> > \n> > > (a) a decision to grant, or to refuse, a prohibition certificate,\n> > \n> > > (b) a decision to grant, or to refuse, an exemption certificate,\n> > \n> > > (c) a decision to accredit or reaccredit, or to refuse to accredit or reaccredit, a person as a mediator,\n> > \n> > > (d) a decision to suspend or cancel the accreditation of a mediator.\n> \n> > (2) An aggrieved person is:\n> > \n> > > (a) in relation to a decision about the grant or refusal of a prohibition certificate or an exemption certificate—the farmer or guarantor whose obligations are secured by the farm mortgage concerned, or the creditor, or\n> > \n> > > (b) in relation to a decision about accreditation or reaccreditation of a mediator—the mediator.\n> \n> > (3) An application for internal review must:\n> > \n> > > (a) be in the approved form, and\n> > \n> > > (b) be lodged with the Authority within 20 business days (or such longer period as the Authority may allow) after the person was notified of the making of the decision concerned, and\n> > \n> > > (c) comply with such other requirements as may be prescribed by the regulations.\n> \n> > (4) The application is to be dealt with by the Chief Executive of the Authority or an employee of the Authority who is directed by the Chief Executive to deal with the application. The reviewer must be a person who was not substantially involved in making the decision the subject of the application.\n> \n> > (5) The reviewer may invite any person who, in the opinion of the reviewer, may be affected by the outcome of the review to submit material for consideration on the review.\n> \n> > (6) The reviewer is to consider any relevant material submitted by the applicant or any person invited under this section to submit material.\n> \n> > (7) In determining an application for internal review, the reviewer may:\n> > \n> > > (a) affirm the decision, or\n> > \n> > > (b) vary the decision, or\n> > \n> > > (c) set aside the decision and make a decision in substitution for the decision that is set aside.\n> \n> > (8) In determining an application for internal review, the reviewer may exercise the same functions under this Act or any other law that the Authority had in making the decision subject to review.\n> \n> > (9) The reviewer is to give notification of the reviewer’s decision to:\n> > \n> > > (a) the applicant, and\n> > \n> > > (b) if the review relates to a decision about the grant or refusal of a prohibition certificate or an exemption certificate—the farmer or creditor, or any guarantor, under the farm mortgage concerned who is not the applicant for the review, and\n> > \n> > > (c) the Authority.\n> \n> > (10) The notification is to include a statement of reasons for the decision.\n> \n> > (11) An application for internal review is to be determined within 30 business days after it is made. However, a determination is not invalid because it is made after the expiration of that period.\n> \n> > (12) The regulations may make provision for or with respect to the conduct of internal reviews.\n> \n> **pt 2, div 5 (ss 18P, 18Q):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":53},{"sectionNumber":"18Q","sectionType":"section","heading":"Stay of reviewable decisions","content":"#### 18Q Stay of reviewable decisions\n\n18Q Stay of reviewable decisions\n\n> > (1) An application under this Division for internal review of a decision to grant an exemption certificate operates to stay the decision until the applicant is notified of the reviewer’s decision.\n> \n> > (2) If an application is made for internal review of a decision to refuse a prohibition certificate, the creditor must not take enforcement action in respect of the farm mortgage concerned until the creditor is notified of the reviewer’s decision.\n> \n> > (3) An application under this Part for internal review of any of the following decisions does not operate to stay the decision:\n> > \n> > > (a) a decision to grant a prohibition certificate,\n> > \n> > > (b) a decision to refuse an exemption certificate,\n> > \n> > > (c) a decision to accredit or reaccredit, or to refuse to accredit or reaccredit, a person as a mediator,\n> > \n> > > (d) a decision to suspend or cancel the accreditation of a mediator.\n> \n> **pt 2, div 5 (ss 18P, 18Q):** Ins 2018 No 16, Sch 1 \\[10\\].","sortOrder":54},{"sectionNumber":"Part 3","sectionType":"part","heading":"General provisions concerning mediation","content":"# Part 3 General provisions concerning mediation\n\nPart 3 General provisions concerning mediation","sortOrder":55},{"sectionNumber":"18","sectionType":"section","heading":"Exclusion of personal liability of mediators and certain other persons","content":"#### 18 Exclusion of personal liability of mediators and certain other persons\n\n18 Exclusion of personal liability of mediators and certain other persons\n\n> A matter or thing done or omitted to be done by a mediator or any person acting under the direction of a mediator does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this Act, subject the mediator or a person so acting personally to any action, liability, claim or demand.","sortOrder":56},{"sectionNumber":"Part 4","sectionType":"part","heading":"Miscellaneous","content":"# Part 4 Miscellaneous\n\nPart 4 Miscellaneous","sortOrder":57},{"sectionNumber":"19","sectionType":"section","heading":"Act binds the Crown","content":"#### 19 Act binds the Crown\n\n19 Act binds the Crown\n\n> This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.","sortOrder":58},{"sectionNumber":"19A","sectionType":"section","heading":"Authority may require information","content":"#### 19A Authority may require information\n\n19A Authority may require information\n\n> > (1) The Authority may, by notice given to a farmer or a creditor, require the farmer or creditor to provide to the Authority such information as the Authority considers to be relevant to:\n> > \n> > > (a) an application under this Act made by the farmer or creditor, or\n> > \n> > > (b) the rights or obligations of the farmer or creditor in relation to a mediation under this Act (including any mediation that has not yet taken place).\n> \n> > (2) The Authority may refuse to consider an application made by the farmer or the creditor under Part 1A if the farmer or the creditor fails to comply with a requirement made under this section.\n> \n> **s 19A:** Ins 2018 No 16, Sch 1 \\[34\\].","sortOrder":59},{"sectionNumber":"20","sectionType":"section","heading":"Contracting out prohibited","content":"#### 20 Contracting out prohibited\n\n20 Contracting out prohibited\n\n> > (1) A provision of an agreement or other instrument (whether in writing or not and whether entered into before or after the commencement of this Act) by which a person seeks to avoid, modify or restrict the operation of this Act is void.\n> \n> > (2) A provision of an agreement or other instrument (whether in writing or not and whether entered into before or after the commencement of this Act) by which a person seeks to have a farmer (whether as debtor or guarantor) or a guarantor indemnify a creditor for any loss or liability arising under this Act is void.\n> \n> > (3) A creditor who is a party to any such agreement or other instrument is guilty of an offence.\n> > \n> > Maximum penalty: 100 penalty units.","sortOrder":60},{"sectionNumber":"21","sectionType":"section","heading":"Waiver of rights void","content":"#### 21 Waiver of rights void\n\n21 Waiver of rights void\n\n> > (1) A waiver of mediation rights under this Act is void.\n> \n> > (2) This section does not affect the requirement for the Authority to grant an exemption certificate in respect of a farm mortgage in circumstances where the farmer has indicated that the farmer does not wish to enter into or proceed with mediation in respect of the debt concerned.\n> \n> **s 21:** Am 2018 No 16, Sch 1 \\[35\\].","sortOrder":61},{"sectionNumber":"22","sectionType":"section","heading":"Notices by mortgagee","content":"#### 22 Notices by mortgagee\n\n22 Notices by mortgagee\n\n> If land is subject to a farm mortgage and another Act requires the mortgagee to give notice to the mortgagor before exercising in relation to the land a power or right conferred by the other Act or by the farm mortgage:\n> \n> > (a) nothing in this Act derogates from the requirement to give the notice under the other Act, and\n> \n> > (b) a notice required by this Act to be given before the exercise of the power or right does not fail to comply with this Act only because it includes matter required to be specified in a notice required by the other Act to be given before exercise of the power or right.","sortOrder":62},{"sectionNumber":"23","sectionType":"section","heading":"Service of documents","content":"#### 23 Service of documents\n\n23 Service of documents\n\n> > (1) A document that is authorised or required by this Act or the regulations to be served on any person (other than a mediator) may be served by any of the following methods:\n> > \n> > > (a) in the case of an individual—by personal delivery to the person,\n> > \n> > > (b) by post to the address specified by the person for the service of documents of that kind,\n> > \n> > > (c) in the case of an individual who has not specified such an address—by post to the residential or business address of the person last known to the person serving the document,\n> > \n> > > (d) in the case of a corporation—by post to the registered office or any other office of the corporation or by leaving it at any such office with a person apparently over the age of 16 years,\n> > \n> > > (e) by email to an email address specified by the person for the service of documents of that kind,\n> > \n> > > (f) by any other method authorised by the regulations for the service of documents of that kind.\n> \n> > (2) A document that is authorised or required by this Act or the regulations to be served on a mediator may be served by post to any office of the Authority.\n> \n> > (3) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person by any other method.\n> \n> > (4) In this section, serve includes give or send.\n> \n> **s 23:** Am 1998 No 14, Sch 1 \\[8\\]. Subst 2018 No 16, Sch 1 \\[36\\].","sortOrder":63},{"sectionNumber":"24","sectionType":"section","heading":null,"content":"#### 24\n\n24 (Repealed)","sortOrder":64},{"sectionNumber":"25","sectionType":"section","heading":"Proceedings for offences","content":"#### 25 Proceedings for offences\n\n25 Proceedings for offences\n\n> Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court.\n> \n> **s 25:** Am 2001 No 121, Sch 2.110; 2007 No 94, Sch 2.","sortOrder":66},{"sectionNumber":"26","sectionType":"section","heading":"Double jeopardy","content":"#### 26 Double jeopardy\n\n26 Double jeopardy\n\n> If an act or omission constitutes an offence:\n> \n> > (a) under this Act or the regulations, and\n> \n> > (b) under another law of this jurisdiction or a law of another jurisdiction,\n> \n> and the offender has been punished in relation to the offence under a law mentioned in paragraph (b), the offender is not liable to be punished in relation to the offence under this Act or the regulations.","sortOrder":67},{"sectionNumber":"27","sectionType":"section","heading":"Aiding, abetting and attempts","content":"#### 27 Aiding, abetting and attempts\n\n27 Aiding, abetting and attempts\n\n> > (1) A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly concerned in or a party to, the commission of an offence against this Act or the regulations is taken to have committed the offence and is liable to the penalty for the offence.\n> \n> > (2) A person who attempts to commit an offence against this Act or the regulations commits an offence and is punishable as if the attempted offence had been committed.","sortOrder":68},{"sectionNumber":"28","sectionType":"section","heading":"Offences by corporations","content":"#### 28 Offences by corporations\n\n28 Offences by corporations\n\n> > (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each officer of the corporation is taken to have contravened the same provision if the officer knowingly authorised or permitted the contravention.\n> \n> > (2) An officer of a corporation may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.\n> \n> > (3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.\n> \n> > (4) In this section, officer means a director of the corporation or a person who is otherwise concerned in its management.","sortOrder":69},{"sectionNumber":"29","sectionType":"section","heading":"Limitation","content":"#### 29 Limitation\n\n29 Limitation\n\n> Despite anything in any Act, proceedings for an offence against this Act or the regulations may be brought within the period of 3 years after the commission of the offence or, with the consent of the Attorney General, at any later time.","sortOrder":70},{"sectionNumber":"29A","sectionType":"section","heading":null,"content":"#### 29A\n\n29A (Repealed)","sortOrder":71},{"sectionNumber":"30","sectionType":"section","heading":"Regulations","content":"#### 30 Regulations\n\n30 Regulations\n\n> > (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.\n> \n> > (2) The regulations may create offences punishable by a penalty not exceeding 10 penalty units.","sortOrder":73},{"sectionNumber":"31","sectionType":"section","heading":null,"content":"#### 31\n\n31 (Repealed)","sortOrder":74},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":"Savings and transitional provisions","content":"# Schedule 1 Savings and transitional provisions\n\nSchedule 1 Savings and transitional provisions\n\n**sch 1:** Ins 1996 No 106, Sch 1 \\[10\\]. Am 1998 No 14, Sch 1 \\[9\\] \\[10\\]; 2002 No 82, Sch 1 \\[34\\] \\[35\\]; 2004 No 52, Sch 5 \\[3\\] \\[4\\]; 2005 No 95, Sch 1 \\[3\\] \\[4\\]; 2018 No 16, Sch 1 \\[38\\]–\\[46\\].","sortOrder":76},{"sectionNumber":"Part 5","sectionType":"part","heading":"Provision consequent on enactment of National Competition Policy Health and Other Amendments (Commonwealth Financial Penalties) Act 2004","content":"# Part 5 Provision consequent on enactment of National Competition Policy Health and Other Amendments (Commonwealth Financial Penalties) Act 2004\n\nPart 5 Provision consequent on enactment of [National Competition Policy Health and Other Amendments (Commonwealth Financial Penalties) Act 2004](/view/html/repealed/current/act-2004-052)","sortOrder":88},{"sectionNumber":"Part 6","sectionType":"part","heading":"Provision consequent on enactment of Farm Debt Mediation Amendment (Water Access Licences) Act 2005","content":"# Part 6 Provision consequent on enactment of Farm Debt Mediation Amendment (Water Access Licences) Act 2005\n\nPart 6 Provision consequent on enactment of [Farm Debt Mediation Amendment (Water Access Licences) Act 2005](/view/html/repealed/current/act-2005-095)","sortOrder":90},{"sectionNumber":"Part 7","sectionType":"part","heading":"Provisions consequent on enactment of Farm Debt Mediation Amendment Act 2018","content":"# Part 7 Provisions consequent on enactment of Farm Debt Mediation Amendment Act 2018\n\nPart 7 Provisions consequent on enactment of [Farm Debt Mediation Amendment Act 2018](/view/html/repealed/current/act-2018-016)","sortOrder":92}],"analysis":{"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":7,"scope_assessment":{"changed":true,"description":"The original 1994 Act was narrowly focused on requiring mediation before enforcement of basic farm mortgages in New South Wales. Subsequent amendments, especially the comprehensive 2018 rewrite, expanded scope to include water access licences, aquaculture activities, formal cooling-off periods for mediation agreements, internal review of Authority decisions, explicit good-faith criteria, confidentiality exceptions and detailed cost-sharing rules, transforming it into a broader, more prescriptive farm financial dispute resolution code."},"complexity_factors":["Over 25 defined terms in s 4 plus two further interpretive sections (ss 4AA and 4AB) that cross-reference multiple other statutes","Layered certification regime with prohibition certificates (ss 9–12) and exemption certificates (ss 13–15) each having multiple cumulative grounds, exceptions and duration rules","Detailed procedural steps for creditor-initiated and farmer-initiated mediation (ss 18A–18B), mediator nomination (s 18C), information exchange (s 18D), session conduct (s 18E) and post-mediation documents (ss 18J–18O)","Renumbering and restructuring from the 2018 amendments that inserted entire new Parts and Divisions while repealing or relocating older sections","Savings and transitional provisions across seven Parts of Schedule 1 that apply differently depending on the date of defaults, mediations or certificates"],"plain_english_summary":"**The Farm Debt Mediation Act 1994** requires banks and other lenders (creditors) to attempt mediation with farmers before they can seize farm land, machinery or water licences over unpaid farm debts. \n\nMediation is a structured, neutral-facilitated negotiation where the farmer and creditor try to reach their own agreement on how to handle the debt. The Act sets up two types of official certificates issued by the NSW Rural Assistance Authority: a **prohibition certificate** that stops the creditor taking action, and an **exemption certificate** that lets the creditor proceed if mediation has occurred or the farmer has refused to participate properly. \n\nIt defines who counts as a farmer (someone mainly doing agriculture, aquaculture or timber work), what a farm debt and farm mortgage are, and detailed rules for requesting mediation, running sessions, signing agreements with a 10-business-day cooling-off period, and keeping discussions confidential. Breaching the rules can lead to large fines and any enforcement action taken without the right certificate is legally void. The law aims to give farmers breathing space to negotiate fair outcomes before losing their livelihood assets."},"summary":{"complexity_score":4,"scope_assessment":{"changed":false,"description":"Based on the available metadata, the Act appears to have remained focused on its original intent — providing mandatory mediation protections for farm debtors in NSW before creditor enforcement action. The multiple amendments appear to be administrative or refinements rather than fundamental expansions or contractions of scope."},"complexity_factors":["Interplay between creditor enforcement rights and mandatory pre-enforcement process creates procedural complexity","Definitions of 'farm debt' and eligible 'farmer' or 'farming operation' can involve judgment calls at the margins","Multiple amendments over 24+ years mean understanding the current version requires awareness of historical changes","Interaction with other secured lending laws (e.g., real property legislation, national credit laws) adds a layer of legal context","Mediation agreement enforcement mechanisms involve both contractual and statutory dimensions"],"plain_english_summary":"## Farm Debt Mediation Act 1994 (NSW)\n\n**What is this law?**\nThis is a New South Wales law that protects farmers who are struggling to repay loans or debts secured against their farm property. It essentially forces lenders (like banks) to sit down with farmers and attempt mediation (a structured negotiation process with a neutral third party) **before** the lender can take action to seize or sell the farm.\n\n**Who does it affect?**\n- **Farmers and primary producers** in NSW who have debts secured against farming land or assets\n- **Lenders** (banks, financial institutions, private creditors) who hold security over farm property\n\n**Why does it matter?**\nWithout this law, a bank could move quickly to repossess a farm the moment repayments fell behind. This Act puts the brakes on that process. Key protections include:\n- A lender **cannot** take enforcement action (e.g., repossess land, sell assets) against a farmer until mediation has been attempted\n- Farmers can **request** mediation at any time\n- If mediation results in an agreement, both sides are legally bound by it\n- It gives struggling farmers a real opportunity to negotiate restructured repayment arrangements and potentially keep their farm\n\n**In plain terms:** If you're a farmer in NSW and you're behind on your loans, the bank can't just kick you off your land without first going through a formal negotiation process. This law gives you a seat at the table and some breathing room.\n\n**Administered by:** The NSW Minister for Agriculture."},"flash_summary":{"complexity_score":5,"scope_assessment":{"changed":true,"description":"The Act’s scope has been expanded and refined through later amendments evident in the text. Notable scope changes include creation and detailed regulation of prohibition and exemption certificate regimes restricting or permitting enforcement action (Part 1A: ss 8–15, inserted/amended 2018), formal statutory definitions of mediation and farming operations (ss 4AA, 4AB, inserted 2018), explicit treatment of hire-purchase and water access licence interests within farm mortgages (definitions and Schedule provisions), and introduction of mediator accreditation, cooling-off rules and internal review processes (Part 2: ss 16–18O, ss 18P–18Q). The Schedule records transitional rules bringing existing agreements and mediators within the amended framework (Schedule 1, Part 7). These amendments changed how and when enforcement can occur, added administrative certificate regimes, and added procedural protections (cooling-off, confidentiality) compared with the earlier text (see Schedule 1 provisions addressing how amendments apply)."},"complexity_factors":["Multiple interacting certification regimes (prohibition certificates v exemption certificates) with different grounds and durations (ss 9–15).","Detailed procedural timelines and form requirements (20 business day response periods; approved forms; cooling-off period rules) that must be complied with precisely (ss 18A–18B, 18J–18L).","Significant administrative discretion invested in the Authority for granting/refusing certificates, accrediting mediators, requiring information and conducting internal reviews (ss 10, 14, 16, 18P, 19A).","Statutory confidentiality and admissibility limits with specific exceptions affecting evidence and enforcement (s 18F; s 18G disclosure offence).","Overlap and preservation of other legal remedies creating cross-references to other laws and potential jurisdictional interaction (s 7).","Sanctions and offence provisions linked to procedural non-compliance, contracting out and enforcement without certificates (ss 8, 18N, 20).","Transitional and amendment history embedded in the Schedule that changes scope and definitions over time (Schedule 1, Part 7)."],"plain_english_summary":"What this law does (mechanically)\n\n- Requires mediation for farm-debt disputes and creates a statutory process for how mediation and related enforcement are handled. (s 3; Part 2)\n- Prevents a creditor from taking enforcement action under a farm mortgage unless the creditor holds an exemption certificate issued by the Authority; enforcement taken in breach is void. (s 8)\n- Allows a farmer in default who has requested mediation to apply for a prohibition certificate that stops a creditor from taking enforcement action for a fixed period. Prohibition certificates last 6 months. (ss 9–12)\n- Allows a creditor to apply for an exemption certificate that permits enforcement action despite the Act, and sets out grounds on which the Authority must or may grant such a certificate. Exemption certificates generally run for 3 years depending on the circumstances specified. (ss 13–15)\n- Sets out the detailed mediation procedure: how mediation is invited or requested, timeframes for responses (20 business days), how mediators are nominated and accredited, confidentiality rules for mediation sessions, a mandatory cooling-off period for mediation agreements, and obligations about drafting and implementing mediation agreements. (ss 16–18O)\n- Prescribes who pays mediation costs (parties share mediator fees equally unless agreed otherwise) and that the Authority is not liable for mediation costs except where it acts as a creditor. (s 18I)\n- Gives the Authority powers to require information relevant to applications and to run internal reviews of its decisions, and provides for stays or limits on the effect of review applications. (ss 18P–18Q; s 19A)\n- Prohibits contracting out of rights under this Act and makes waivers of mediation rights void. (ss 20–21)\n\nOfficial purpose claim\n\n- The Act states its object is to provide for the efficient and equitable resolution of matters involving farm debts and to require mediation before a creditor can take possession or other enforcement action under a farm mortgage. (s 3)\n\nTesting the purpose claim against mechanics, costs and incentives (source sections in parentheses)\n\n- Who decides and exercises discretion: The New South Wales Rural Assistance Authority (\"the Authority\") decides whether to grant or refuse prohibition and exemption certificates and accredits mediators, and it may require parties to supply information relevant to applications (ss 4 (Authority), 10, 14, 16, 19A). These are administrative decisions that may involve discretionary judgment (see the multiple \"Authority may\" and \"Authority must\" provisions in ss 10 and 14). \n\n- Who pays and direct costs: Parties share mediator fees equally and each party pays its own attendance costs, unless they agree otherwise. If additional sessions are required because a party’s representative lacks authority, that party bears the extra mediator fee and the other party’s attendance costs (s 18I). The Authority is not liable for mediation costs except when it acts as a creditor (s 18I(4)).\n\n- Compliance burden and formalities: Applications and notices generally must be in approved forms (see definition of \"approved form\" and ss 9, 13, 18A(4), 18B(5), 18J(2), 18K(4)–(5)). Parties must respond to mediation invitations or requests within 20 business days (ss 18A(3), 18B(4)). A mediation agreement has a statutory cooling-off period (10 business days) during which the farmer may rescind the agreement in writing (ss 18L–18M). These procedural steps create time and paperwork obligations for farmers and creditors.\n\n- Enforcement restraints and effects on private choice: Creditors cannot take enforcement action while an exemption certificate is not in force; taking such action is an offence with specified penalties and renders enforcement action void (s 8). That delays or limits creditors’ ability to enforce security until the Authority issues an exemption certificate or other statutory conditions are met. Conversely, creditors may obtain an exemption certificate where specified grounds are met, which restores or permits enforcement (ss 13–15).\n\n- Incentives and potential strategic behaviour: The Act creates mechanisms that can be invoked by either party: farmers can request mediation and apply for prohibition certificates (ss 9, 18B), while creditors can issue notices inviting mediation and apply for exemption certificates (ss 18A, 13). The statutory time limits, certification regimes and the availability of internal review (ss 18P–18Q) create incentives for parties to use procedural steps (e.g. requests, responses, applications) strategically. The Act contains guardrails — for example, the Authority must grant certificates only where specific statutory grounds are satisfied (ss 10(2)–(3); 14(2)–(3)) and may refuse where reasonable justification exists (ss 10(4); 14(4)).\n\n- Trade-offs and opportunity costs: The statutory mediation process delays immediate creditor enforcement in many cases (s 8) and requires parties to spend time and money on mediation (s 18I). Those delays are the trade-off for attempting negotiated resolution. The Act preserves other legal rights and remedies outside this process (s 7(1), (3)), so parties retain recourse to other laws where applicable.\n\n- Administrative implementation risks and discretion: The Authority has discretion in issuing certificates, accrediting mediators, requiring information and running internal reviews (ss 10, 14, 16, 18P, 19A). This central role concentrates administrative power in the Authority and creates implementation dependence on its practices, timeliness and resource capacity.\n\n- Compliance and sanctioning: The Act makes contracting out of its protections void and criminalises seeking to avoid its operation or requiring indemnities for losses under the Act (s 20), and contains penalties for unauthorised disclosure of mediation information (s 18G) and for certain breaches related to implementing mediation agreements (s 18N). There are also penalties for taking enforcement action without an exemption certificate (s 8).\n\nWho is affected and what behaviour changes\n\n- Farmers (individuals or corporations) engaged primarily in farming operations are the primary subjects entitled to request mediation, apply for prohibition certificates and benefit from confidentiality and cooling-off protections (see definitions in s 4, and mediation provisions in Part 2).\n- Creditors holding farm mortgages must follow the mediation invitation and response rules, may seek exemption certificates to proceed with enforcement, and risk penalties if they enforce without an exemption certificate (ss 18A, 18B, 13–15, 8).\n- The Authority administers the scheme and makes decisions about certificates, mediator accreditation and internal review (s 4; ss 10, 14, 16, 18P).\n- Mediators accredited by the Authority conduct sessions under statutory rules (ss 16–18O), with confidentiality protections and limits on their role (they cannot give legal advice or act as arbitrators) (s 17).\n\nConcrete risks and friction points identified in the Act\n\n- Administrative discretion and delay: many key outcomes (granting/refusing certificates, accreditation, internal review) rest with the Authority (ss 10, 14, 16, 18P), exposing parties to administrative timing and judgment.\n- Transaction costs for parties: mandatory forms, time limits, mediator fees and potential for multiple sessions create costs (s 18I; approved-form requirements noted in s 4 and multiple procedural sections).\n- Potential tactical use of process: both parties can trigger certification or notice regimes that delay enforcement or require Authority adjudication (ss 9–15; ss 18A–18B), so parties may use procedural rights strategically.\n- Limited effect on other legal rights: the Act expressly preserves other legal remedies and does not displace unrelated statutory duties (s 7), so it operates alongside existing law rather than replacing it.\n\nSource sections relied on: s 3 (object); s 4 (definitions); Part 1A (ss 8–15) on prohibition and exemption certificates; Part 2 (ss 16–18O) on mediation procedure and mediator functions; s 18I (costs); ss 18P–18Q (internal review and stays); ss 19A, 20, 21 (Authority powers, contracting out and waiver), and s 7 (relationship with other laws)."}},"importantCases":[],"_links":{"self":"/api/acts/farm-debt-mediation-act-1994","history":"/api/acts/farm-debt-mediation-act-1994/history","analysis":"/api/acts/farm-debt-mediation-act-1994/analysis","conflicts":"/api/acts/farm-debt-mediation-act-1994/conflicts","importantCases":"/api/acts/farm-debt-mediation-act-1994/important-cases","documents":"/api/acts/farm-debt-mediation-act-1994/documents"}}