The Act makes mediation the required first step before a mortgagee can enforce a farm mortgage, so farmers and lenders must use a structured mediation process (with notice, timeframes, document exchange and accredited mediators) unless an exemption applies. An independent authority oversees mediators and can issue suspension or exemption certificates that pause or permit enforcement. Parties share mediator costs (other documentary costs are allocated), confidentiality is protected, and the law limits contracting out or waiver of the farmer’s mediation rights—potentially delaying lender enforcement.
The Act establishes a statutory mediation regime for resolving disputes about farm business debts secured by a farm mortgage, and overlays procedural requirements and administrative decision-making to govern mediation, suspension of enforcement action and exemption from mediation. The statutory purpose, stated at section 3, is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm business debts, mainly by: providing mediation as the principal mechanism; requiring a mortgagee to offer mediation before enforcing a mortgage and to participate in good faith if mediation is requested; and declaring enforcement action taken in contravention of the Act to have no effect.
Mechanically the Act does the following (selected mechanics with section references):
Creates an obligation on mortgagees not to take enforcement action while the Act applies and no exemption certificate is in force, with a maximum penalty of 100 penalty units (s 12(1), s 12(2) and s 89 reference to executive officer liability for corporate offences).
Prescribes the content and timing of the notice a mortgagee must serve when it intends to take enforcement action, including a minimum 20 business day period for a farmer to request mediation and requirement to provide the mediation information package (s 14).
Enables a farmer to request mediation at any time after receiving a notice inviting a request, or otherwise where a farm business debt exists, and requires the approved request form to permit the farmer to nominate three mediators and request documents from the mortgagee (s 15).
Sets out how parties agree to mediation and how mediators are chosen and engaged, including mediation guidelines and a register of mediators (s 16, s 18, s 19, s 34, s 76).
Current sections
Direct links to the current provisions in Farm Business Debt Mediation Act 2017.
122
pt.1
Preliminary
Preliminary
pt.1-div.1
Introduction
Introduction
sec.1
Short title
sec.1 Short title
This Act may be cited as the Farm Business Debt Mediation Act 2017 .
sec.2
Commencement
sec.2 Commencement
This Act, other than part 9 , divisions 2 to 4 , commences on 1 July 2017.
pt.1-div.2
Purpose
Purpose
sec.3
Purpose
sec.3 Purpose
The purpose of this Act is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm business debts.
The purpose is achieved mainly by—
providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and
requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt—
to offer mediation for the farm business debt to the farmer; and
if the farmer asks for the mediation—to take part in the mediation in good faith; and
providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(sec.3-ssec.1) The purpose of this Act is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm business debts.
(sec.3-ssec.2) The purpose is achieved mainly by— providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt— to offer mediation for the farm business debt to the farmer; and if the farmer asks for the mediation—to take part in the mediation in good faith; and providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(a) providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and
(b) requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt— (i) to offer mediation for the farm business debt to the farmer; and (ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
(i) to offer mediation for the farm business debt to the farmer; and
(ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
(c) providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(i) to offer mediation for the farm business debt to the farmer; and
(ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
pt.1-div.3
Interpretation
Interpretation
sec.4
Definitions
sec.4 Definitions
The dictionary in schedule 1 defines particular words used in this Act.
sec.5
Meaning of farm business debt
sec.5 Meaning of farm business debt
A farm business debt is an amount owed by a farmer that—
was borrowed for the purpose of conducting a farming business; and
is secured by a farm mortgage.
(a) was borrowed for the purpose of conducting a farming business; and
(b) is secured by a farm mortgage.
sec.6
Meaning of mediation for a farm business debt
sec.6 Meaning of mediation for a farm business debt
Mediation , for a farm business debt, is 1 or more meetings conducted by a mediator to facilitate discussion between the farmer and the mortgagee—
when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and
that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt.
the way for the farmer to remedy a default under the farm mortgage
how the farm mortgage may be enforced or discharged
Each meeting mentioned in subsection (1) is a mediation meeting .
A reference in this Act to mediation includes—
an activity for promoting discussion and bringing about agreement about a matter during mediation; and
anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
(sec.6-ssec.1) Mediation , for a farm business debt, is 1 or more meetings conducted by a mediator to facilitate discussion between the farmer and the mortgagee— when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt. the way for the farmer to remedy a default under the farm mortgage how the farm mortgage may be enforced or discharged
(sec.6-ssec.2) Each meeting mentioned in subsection (1) is a mediation meeting .
(sec.6-ssec.3) A reference in this Act to mediation includes— an activity for promoting discussion and bringing about agreement about a matter during mediation; and anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
(a) when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and
(b) that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt. Examples of matters that may be agreed— • the way for the farmer to remedy a default under the farm mortgage • how the farm mortgage may be enforced or discharged
• the way for the farmer to remedy a default under the farm mortgage
• how the farm mortgage may be enforced or discharged
• the way for the farmer to remedy a default under the farm mortgage
• how the farm mortgage may be enforced or discharged
(a) an activity for promoting discussion and bringing about agreement about a matter during mediation; and
(b) anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
sec.7
When mediation has been satisfactory
sec.7 When mediation has been satisfactory
Mediation for a farm business debt has been satisfactory if—
as a result of the mediation, the farmer and the mortgagee have entered into a heads of agreement; or
the mediation has proceeded as far as it reasonably can with the farmer and the mortgagee having participated in good faith, but they have not entered into a heads of agreement; or
the mediation is of a type, or a class, or meets criteria prescribed by regulation for this paragraph.
(a) as a result of the mediation, the farmer and the mortgagee have entered into a heads of agreement; or
(b) the mediation has proceeded as far as it reasonably can with the farmer and the mortgagee having participated in good faith, but they have not entered into a heads of agreement; or
(c) the mediation is of a type, or a class, or meets criteria prescribed by regulation for this paragraph.
sec.8
Particular references
sec.8 Particular references
In a provision about a farm business debt or a farm mortgage—
a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and
a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and
a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and
a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and
a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
In a provision about a farmer—
a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and
a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and
a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and
a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
s 8 amd 2020 No. 3 s 85
(sec.8-ssec.1) In a provision about a farm business debt or a farm mortgage— a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
(sec.8-ssec.2) In a provision about a farmer— a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
(a) a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and
(b) a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and
(c) a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and
(d) a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and
(e) a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
(a) a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and
(b) a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and
(c) a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and
(d) a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
pt.1-div.4
Operation of Act
Operation of Act
sec.9
Act binds all persons
sec.9 Act binds all persons
This Act binds all persons, including the State.
However, nothing in this Act makes the State liable to be prosecuted for an offence.
(sec.9-ssec.1) This Act binds all persons, including the State.
(sec.9-ssec.2) However, nothing in this Act makes the State liable to be prosecuted for an offence.
sec.10
Relationship with other Acts or laws
sec.10 Relationship with other Acts or laws
This Act applies in addition to, and does not limit, any other Act or law relating to the enforcement of mortgages.
However, if a provision of this Act is inconsistent with another Act, the provision prevails over the other Act to the extent of the inconsistency.
Subsection (2) does not affect a provision of this Act or another Act that expressly deals with the interaction between this Act, the other Act or another law.
(sec.10-ssec.1) This Act applies in addition to, and does not limit, any other Act or law relating to the enforcement of mortgages.
(sec.10-ssec.2) However, if a provision of this Act is inconsistent with another Act, the provision prevails over the other Act to the extent of the inconsistency.
(sec.10-ssec.3) Subsection (2) does not affect a provision of this Act or another Act that expressly deals with the interaction between this Act, the other Act or another law.
sec.11
Application of Act
sec.11 Application of Act
This Act does not apply in relation to a farmer if—
the farmer is an insolvent under administration; or
the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or
for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
Also, this Act does not apply in relation to a farmer for a particular farm business debt if—
the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and
the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and
the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
s 11 amd 2020 No. 3 s 86 ; 2023 No. 23 s 247 sch 1 s 2 (2)
(sec.11-ssec.1) This Act does not apply in relation to a farmer if— the farmer is an insolvent under administration; or the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
(sec.11-ssec.2) Also, this Act does not apply in relation to a farmer for a particular farm business debt if— the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
(a) the farmer is an insolvent under administration; or
(b) the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or
(c) for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
(a) the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and
(b) the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and
(c) the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
pt.2
Enforcement action by mortgagee
Enforcement action by mortgagee
sec.12
Restriction on mortgagee enforcement action
sec.12 Restriction on mortgagee enforcement action
A mortgagee must not take enforcement action under a farm mortgage unless—
this Act does not apply in relation to the farmer or the farm mortgage; or
an exemption certificate is in force for the farm mortgage.
Maximum penalty—100 penalty units.
If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 89 , to have also committed the offence.
Enforcement action that is taken by a mortgagee in relation to a farm mortgage in contravention of subsection (1) has no effect.
Subsection (2) applies despite any other Act or law.
(sec.12-ssec.1) A mortgagee must not take enforcement action under a farm mortgage unless— this Act does not apply in relation to the farmer or the farm mortgage; or an exemption certificate is in force for the farm mortgage. Maximum penalty—100 penalty units. If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 89 , to have also committed the offence.
(sec.12-ssec.2) Enforcement action that is taken by a mortgagee in relation to a farm mortgage in contravention of subsection (1) has no effect.
(sec.12-ssec.3) Subsection (2) applies despite any other Act or law.
(a) this Act does not apply in relation to the farmer or the farm mortgage; or
(b) an exemption certificate is in force for the farm mortgage.
pt.3
Mediation
Mediation
pt.3-div.1
Preliminary
Preliminary
sec.13
Application of part
sec.13 Application of part
This part does not apply if an exemption certificate is in force for a farm mortgage.
pt.3-div.2
Starting mediation
Starting mediation
sec.14
Notice inviting request for mediation
sec.14 Notice inviting request for mediation
If a mortgagee intends to take enforcement action under a farm mortgage, the mortgagee must—
serve a notice inviting a request for mediation on the farmer; and
give a copy of the notice to the authority.
An notice inviting a request for mediation is a notice, in the approved form, that—
states the name of the farmer and the mortgagee; and
identifies the farm property; and
states the enforcement action the mortgagee intends to take; and
states that the farmer may ask for mediation for the farm business debt; and
states how, and the day by which, the farmer must ask for mediation; and
states that, if the farmer does not ask for mediation by the stated day, the mortgagee may consider the farmer has declined mediation and may apply for an exemption certificate to allow the mortgagee to proceed with enforcement action.
For subsection (2) (e) , the day by which the farmer must ask for mediation must be no less than 20 business days after the day the notice is served on the farmer.
The notice inviting a request for mediation served on the farmer must be accompanied by a copy of the mediation information package.
s 14 amd 2024 No. 17 s 131
(sec.14-ssec.1) If a mortgagee intends to take enforcement action under a farm mortgage, the mortgagee must— serve a notice inviting a request for mediation on the farmer; and give a copy of the notice to the authority.
(sec.14-ssec.2) An notice inviting a request for mediation is a notice, in the approved form, that— states the name of the farmer and the mortgagee; and identifies the farm property; and states the enforcement action the mortgagee intends to take; and states that the farmer may ask for mediation for the farm business debt; and states how, and the day by which, the farmer must ask for mediation; and states that, if the farmer does not ask for mediation by the stated day, the mortgagee may consider the farmer has declined mediation and may apply for an exemption certificate to allow the mortgagee to proceed with enforcement action.
(sec.14-ssec.3) For subsection (2) (e) , the day by which the farmer must ask for mediation must be no less than 20 business days after the day the notice is served on the farmer.
(sec.14-ssec.4) The notice inviting a request for mediation served on the farmer must be accompanied by a copy of the mediation information package.
(a) serve a notice inviting a request for mediation on the farmer; and
(b) give a copy of the notice to the authority.
(a) states the name of the farmer and the mortgagee; and
(b) identifies the farm property; and
(c) states the enforcement action the mortgagee intends to take; and
(d) states that the farmer may ask for mediation for the farm business debt; and
(e) states how, and the day by which, the farmer must ask for mediation; and
(f) states that, if the farmer does not ask for mediation by the stated day, the mortgagee may consider the farmer has declined mediation and may apply for an exemption certificate to allow the mortgagee to proceed with enforcement action.
sec.15
Asking for mediation
sec.15 Asking for mediation
This section applies if—
a mortgagee has given a farmer a notice inviting a request for mediation; or
a farmer owes a farm business debt to a mortgagee, whether or not the farmer is in default, or at risk of default, under the farm mortgage.
The farmer may give a request for mediation notice to the mortgagee.
A request for mediation notice is a notice that—
may, but need not, be in the approved form; and
asks for mediation for the farm business debt; and
states—
if the farmer is not an individual—the name and contact details of the person authorised to act for the farmer in relation to the mediation; and
Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee.
the farmer’s address for service of documents.
The approved form for a request for mediation notice must provide for—
the farmer to nominate 3 mediators from which the mortgagee may choose a mediator, to conduct the mediation, under section 18 ; and
the farmer to request documents relating to the farm business debt and farm mortgage from the mortgagee under section 21 .
s 15 amd 2020 No. 3 s 87 ; 2024 No. 17 s 192 s ch 1 pt 1
(sec.15-ssec.1) This section applies if— a mortgagee has given a farmer a notice inviting a request for mediation; or a farmer owes a farm business debt to a mortgagee, whether or not the farmer is in default, or at risk of default, under the farm mortgage.
(sec.15-ssec.2) The farmer may give a request for mediation notice to the mortgagee.
(sec.15-ssec.3) A request for mediation notice is a notice that— may, but need not, be in the approved form; and asks for mediation for the farm business debt; and states— if the farmer is not an individual—the name and contact details of the person authorised to act for the farmer in relation to the mediation; and Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee. the farmer’s address for service of documents.
(sec.15-ssec.4) The approved form for a request for mediation notice must provide for— the farmer to nominate 3 mediators from which the mortgagee may choose a mediator, to conduct the mediation, under section 18 ; and the farmer to request documents relating to the farm business debt and farm mortgage from the mortgagee under section 21 .
(a) a mortgagee has given a farmer a notice inviting a request for mediation; or
(b) a farmer owes a farm business debt to a mortgagee, whether or not the farmer is in default, or at risk of default, under the farm mortgage.
(a) may, but need not, be in the approved form; and
(b) asks for mediation for the farm business debt; and
(c) states— (i) if the farmer is not an individual—the name and contact details of the person authorised to act for the farmer in relation to the mediation; and Note— Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee. (ii) the farmer’s address for service of documents.
(i) if the farmer is not an individual—the name and contact details of the person authorised to act for the farmer in relation to the mediation; and Note— Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee.
(ii) the farmer’s address for service of documents.
(i) if the farmer is not an individual—the name and contact details of the person authorised to act for the farmer in relation to the mediation; and Note— Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee.
(ii) the farmer’s address for service of documents.
(a) the farmer to nominate 3 mediators from which the mortgagee may choose a mediator, to conduct the mediation, under section 18 ; and
(b) the farmer to request documents relating to the farm business debt and farm mortgage from the mortgagee under section 21 .
sec.16
Agreeing to or refusing mediation
sec.16 Agreeing to or refusing mediation
If a mortgagee receives a request for mediation notice in relation to a farm business debt, the mortgagee may agree to or refuse the mediation.
Subsection (1) applies whether or not the mortgagee received the request for mediation notice by the day stated in the notice inviting a request for mediation the mortgagee gave to the farmer.
The mortgagee agrees to the mediation by, within 15 business days after receiving the request for mediation notice—
preparing, in the approved form, a notice that states the parties have agreed to mediation for the farm business debt; and
giving the notice to the farmer and the authority.
The notice must state—
the name and contact details of the person authorised to act for the mortgagee in relation to the mediation; and
Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee.
the mortgagee’s address for service of documents; and
if stated in the farmer’s request for mediation notice—
the name and contact details of the person authorised to act for the farmer in relation to the mediation; and
the farmer’s address for service of documents.
If the mortgagee did not give a notice inviting a request for mediation to the farmer, a copy of the notice given to the farmer must be accompanied by a copy of the mediation information package.
The mortgagee refuses the mediation by giving a notice refusing the mediation to the farmer.
If the farmer requesting mediation is not in default under the farm mortgage and the mortgagee refuses the mediation, there are no consequences under this Act.
If the farmer requesting mediation is in default under the farm mortgage, the mortgagee’s refusal of the mediation may be grounds for the farmer to apply for an enforcement action suspension certificate under part 4 , division 1 . See section 40 .
s 16 amd 2024 No. 17 s 192 s ch 1 pt 1
(sec.16-ssec.1) If a mortgagee receives a request for mediation notice in relation to a farm business debt, the mortgagee may agree to or refuse the mediation.
(sec.16-ssec.2) Subsection (1) applies whether or not the mortgagee received the request for mediation notice by the day stated in the notice inviting a request for mediation the mortgagee gave to the farmer.
(sec.16-ssec.3) The mortgagee agrees to the mediation by, within 15 business days after receiving the request for mediation notice— preparing, in the approved form, a notice that states the parties have agreed to mediation for the farm business debt; and giving the notice to the farmer and the authority.
(sec.16-ssec.4) The notice must state— the name and contact details of the person authorised to act for the mortgagee in relation to the mediation; and Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee. the mortgagee’s address for service of documents; and if stated in the farmer’s request for mediation notice— the name and contact details of the person authorised to act for the farmer in relation to the mediation; and the farmer’s address for service of documents.
(sec.16-ssec.5) If the mortgagee did not give a notice inviting a request for mediation to the farmer, a copy of the notice given to the farmer must be accompanied by a copy of the mediation information package.
(sec.16-ssec.6) The mortgagee refuses the mediation by giving a notice refusing the mediation to the farmer. If the farmer requesting mediation is not in default under the farm mortgage and the mortgagee refuses the mediation, there are no consequences under this Act. If the farmer requesting mediation is in default under the farm mortgage, the mortgagee’s refusal of the mediation may be grounds for the farmer to apply for an enforcement action suspension certificate under part 4 , division 1 . See section 40 .
(a) preparing, in the approved form, a notice that states the parties have agreed to mediation for the farm business debt; and
(b) giving the notice to the farmer and the authority.
(a) the name and contact details of the person authorised to act for the mortgagee in relation to the mediation; and Note— Section 23 provides for when a party to a mediation may be represented at a mediation meeting by an agent with the mediator’s approval or, for a party that is a corporation, by an officer or employee.
(b) the mortgagee’s address for service of documents; and
(c) if stated in the farmer’s request for mediation notice— (i) the name and contact details of the person authorised to act for the farmer in relation to the mediation; and (ii) the farmer’s address for service of documents.
(i) the name and contact details of the person authorised to act for the farmer in relation to the mediation; and
(ii) the farmer’s address for service of documents.
(i) the name and contact details of the person authorised to act for the farmer in relation to the mediation; and
(ii) the farmer’s address for service of documents.
1 If the farmer requesting mediation is not in default under the farm mortgage and the mortgagee refuses the mediation, there are no consequences under this Act.
2 If the farmer requesting mediation is in default under the farm mortgage, the mortgagee’s refusal of the mediation may be grounds for the farmer to apply for an enforcement action suspension certificate under part 4 , division 1 . See section 40 .
pt.3-div.3
Conducting mediation
Conducting mediation
sec.17
Application of division
sec.17 Application of division
This division applies if the farmer and the mortgagee for a farm business debt have agreed to mediation for the debt.
The parties have agreed to mediation when the mortgagee gives a notice under section 16 (3) (b) .
(sec.17-ssec.1) This division applies if the farmer and the mortgagee for a farm business debt have agreed to mediation for the debt.
(sec.17-ssec.2) The parties have agreed to mediation when the mortgagee gives a notice under section 16 (3) (b) .
sec.18
Choosing mediator
sec.18 Choosing mediator
The parties to the farm business debt must choose a mediator to conduct the mediation.
The mediator must be chosen in the way prescribed by regulation.
(sec.18-ssec.1) The parties to the farm business debt must choose a mediator to conduct the mediation.
(sec.18-ssec.2) The mediator must be chosen in the way prescribed by regulation.
sec.19
Arranging mediation
sec.19 Arranging mediation
The mortgagee must ask the mediator chosen under section 18 to arrange the mediation.
If the mediator is available to conduct the mediation, the mediator must arrange the mediation.
The procedure for arranging, and conducting, mediation and mediation meetings is the procedure—
under the mediation guidelines; or
if the mediation guidelines do not provide for a particular matter—decided by the mediator for the matter.
(sec.19-ssec.1) The mortgagee must ask the mediator chosen under section 18 to arrange the mediation.
(sec.19-ssec.2) If the mediator is available to conduct the mediation, the mediator must arrange the mediation.
(sec.19-ssec.3) The procedure for arranging, and conducting, mediation and mediation meetings is the procedure— under the mediation guidelines; or if the mediation guidelines do not provide for a particular matter—decided by the mediator for the matter.
(a) under the mediation guidelines; or
(b) if the mediation guidelines do not provide for a particular matter—decided by the mediator for the matter.
sec.20
Functions of mediator
sec.20 Functions of mediator
The main function of a mediator is to mediate impartially between the farmer and the mortgagee with the aim of bringing about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt.
A mediator has the other functions given to the mediator under an Act.
It is not a function of a mediator to—
advise a farmer or mortgagee about the law; or
encourage or assist a farmer or mortgagee in reserving or establishing legal rights; or
act as an adjudicator or arbitrator.
(sec.20-ssec.1) The main function of a mediator is to mediate impartially between the farmer and the mortgagee with the aim of bringing about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt.
(sec.20-ssec.2) A mediator has the other functions given to the mediator under an Act.
(sec.20-ssec.3) It is not a function of a mediator to— advise a farmer or mortgagee about the law; or encourage or assist a farmer or mortgagee in reserving or establishing legal rights; or act as an adjudicator or arbitrator.
(a) advise a farmer or mortgagee about the law; or
(b) encourage or assist a farmer or mortgagee in reserving or establishing legal rights; or
(c) act as an adjudicator or arbitrator.
sec.21
Giving requested documents to farmer
sec.21 Giving requested documents to farmer
The farmer may give a notice to the mortgagee asking the mortgagee for copies of documents related to the farm business debt and the farm mortgage.
The farmer may give the notice—
when the farmer gives a request for mediation notice to the mortgagee; or
at any time after the farmer gives a request for mediation notice to the mortgagee but before the mediation ends.
The mortgagee must comply with the notice, at the mortgagee’s cost, within—
30 business days after receiving the notice; or
a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
The mortgagee complies with the request by giving the farmer copies of the documents in the mortgagee’s possession or control relating to—
the farmer’s application for the farm business debt and farm mortgage, and any variation of the debt or mortgage; and
the contractual relationship between the farmer and the mortgagee, including any loan or mortgage documents; and
correspondence between the farmer and the mortgagee about changes to the farm business debt or the farm mortgage; and
the farmer’s default under the farm mortgage and any action taken by the mortgagee in relation to the default; and
any other matter prescribed by regulation.
The mortgagee gives a document that is an electronic document by giving a clear image or written version of the document.
If the mortgagee has given a document mentioned in subsection (4) to the farmer within the 3 months before receiving the notice, the mortgagee is taken to have complied with the notice to the extent the notice relates to the document.
If the mortgagee fails to comply, or to make reasonable efforts to comply, with the request, the mortgagee has failed to take part in the mediation in good faith.
(sec.21-ssec.1) The farmer may give a notice to the mortgagee asking the mortgagee for copies of documents related to the farm business debt and the farm mortgage.
(sec.21-ssec.2) The farmer may give the notice— when the farmer gives a request for mediation notice to the mortgagee; or at any time after the farmer gives a request for mediation notice to the mortgagee but before the mediation ends.
(sec.21-ssec.3) The mortgagee must comply with the notice, at the mortgagee’s cost, within— 30 business days after receiving the notice; or a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
(sec.21-ssec.4) The mortgagee complies with the request by giving the farmer copies of the documents in the mortgagee’s possession or control relating to— the farmer’s application for the farm business debt and farm mortgage, and any variation of the debt or mortgage; and the contractual relationship between the farmer and the mortgagee, including any loan or mortgage documents; and correspondence between the farmer and the mortgagee about changes to the farm business debt or the farm mortgage; and the farmer’s default under the farm mortgage and any action taken by the mortgagee in relation to the default; and any other matter prescribed by regulation.
(sec.21-ssec.5) The mortgagee gives a document that is an electronic document by giving a clear image or written version of the document.
(sec.21-ssec.6) If the mortgagee has given a document mentioned in subsection (4) to the farmer within the 3 months before receiving the notice, the mortgagee is taken to have complied with the notice to the extent the notice relates to the document.
(sec.21-ssec.7) If the mortgagee fails to comply, or to make reasonable efforts to comply, with the request, the mortgagee has failed to take part in the mediation in good faith.
(a) when the farmer gives a request for mediation notice to the mortgagee; or
(b) at any time after the farmer gives a request for mediation notice to the mortgagee but before the mediation ends.
(a) 30 business days after receiving the notice; or
(b) a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
(a) the farmer’s application for the farm business debt and farm mortgage, and any variation of the debt or mortgage; and
(b) the contractual relationship between the farmer and the mortgagee, including any loan or mortgage documents; and
(c) correspondence between the farmer and the mortgagee about changes to the farm business debt or the farm mortgage; and
(d) the farmer’s default under the farm mortgage and any action taken by the mortgagee in relation to the default; and
(e) any other matter prescribed by regulation.
sec.22
Giving documents to mortgagee
sec.22 Giving documents to mortgagee
The farmer must give the mortgagee documents or up-to-date information about—
the farmer’s most recent taxation return prepared for lodgement with the Australian Taxation Office; and
the farmer’s assets and liabilities; and
the farmer’s cash flow projections for a period of at least 1 year.
The farmer must comply, at the farmer’s cost, with subsection (1) within—
30 business days after receiving a notice from the mortgagee under section 16 (3) ; or
a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
The farmer gives a document that is an electronic document by giving a clear image or written version of the document.
If the farmer fails to comply, or to make reasonable efforts to comply, with this section, the farmer has failed to take part in the mediation in good faith.
(sec.22-ssec.1) The farmer must give the mortgagee documents or up-to-date information about— the farmer’s most recent taxation return prepared for lodgement with the Australian Taxation Office; and the farmer’s assets and liabilities; and the farmer’s cash flow projections for a period of at least 1 year.
(sec.22-ssec.2) The farmer must comply, at the farmer’s cost, with subsection (1) within— 30 business days after receiving a notice from the mortgagee under section 16 (3) ; or a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
(sec.22-ssec.3) The farmer gives a document that is an electronic document by giving a clear image or written version of the document.
(sec.22-ssec.4) If the farmer fails to comply, or to make reasonable efforts to comply, with this section, the farmer has failed to take part in the mediation in good faith.
(a) the farmer’s most recent taxation return prepared for lodgement with the Australian Taxation Office; and
(b) the farmer’s assets and liabilities; and
(c) the farmer’s cash flow projections for a period of at least 1 year.
(a) 30 business days after receiving a notice from the mortgagee under section 16 (3) ; or
(b) a longer period agreed between the farmer and the mortgagee, in consultation with the mediator.
sec.23
Representation at mediation meetings
sec.23 Representation at mediation meetings
A party to a mediation may be represented at a mediation meeting by—
an agent, with the mediator’s approval; or
if the party is a corporation—an officer or employee of the corporation.
The mediator may approve a party be represented by an agent if the mediator is satisfied—
the party’s representation by an agent would assist the mediation; and
the agent has sufficient knowledge of the issues to be able to represent the party effectively.
The mediator may—
give the approval on the conditions the mediator considers are reasonable to ensure the other party is not substantially disadvantaged; and
withdraw the approval if the agent does not comply with the conditions.
A person representing a party at a mediation meeting must be authorised in writing to enter into a heads of agreement for the party.
If another mediation meeting is required because a person representing a party at a mediation meeting does not have the authority mentioned in subsection (4) , the party must pay—
the other party’s costs for the other meeting; and
the mediator’s fee and costs for the other meeting.
(sec.23-ssec.1) A party to a mediation may be represented at a mediation meeting by— an agent, with the mediator’s approval; or if the party is a corporation—an officer or employee of the corporation.
(sec.23-ssec.2) The mediator may approve a party be represented by an agent if the mediator is satisfied— the party’s representation by an agent would assist the mediation; and the agent has sufficient knowledge of the issues to be able to represent the party effectively.
(sec.23-ssec.3) The mediator may— give the approval on the conditions the mediator considers are reasonable to ensure the other party is not substantially disadvantaged; and withdraw the approval if the agent does not comply with the conditions.
(sec.23-ssec.4) A person representing a party at a mediation meeting must be authorised in writing to enter into a heads of agreement for the party.
(sec.23-ssec.5) If another mediation meeting is required because a person representing a party at a mediation meeting does not have the authority mentioned in subsection (4) , the party must pay— the other party’s costs for the other meeting; and the mediator’s fee and costs for the other meeting.
(a) an agent, with the mediator’s approval; or
(b) if the party is a corporation—an officer or employee of the corporation.
(a) the party’s representation by an agent would assist the mediation; and
(b) the agent has sufficient knowledge of the issues to be able to represent the party effectively.
(a) give the approval on the conditions the mediator considers are reasonable to ensure the other party is not substantially disadvantaged; and
(b) withdraw the approval if the agent does not comply with the conditions.
(a) the other party’s costs for the other meeting; and
(b) the mediator’s fee and costs for the other meeting.
sec.24
Farmer entitled to advisor
sec.24 Farmer entitled to advisor
A farmer who is a party to mediation may have 1 or more advisors at a mediation meeting.
An advisor may, but need not, be a lawyer or otherwise professionally qualified.
The farmer may seek an advisor’s advice during the mediation meeting.
(sec.24-ssec.1) A farmer who is a party to mediation may have 1 or more advisors at a mediation meeting.
(sec.24-ssec.2) An advisor may, but need not, be a lawyer or otherwise professionally qualified.
(sec.24-ssec.3) The farmer may seek an advisor’s advice during the mediation meeting.
sec.25
Mediation meetings
sec.25 Mediation meetings
Without limiting section 19 (3) , a mediator may—
call a pre-mediation conference; and
adjourn a mediation meeting if the mediator considers a party would be significantly disadvantaged if the meeting continues.
Mediation meetings are to be conducted—
at a place and time that is reasonably convenient for the farmer; and
with as little formality and technicality, and as quickly, as possible.
If the parties to a mediation agree, a mediation meeting may be held using any technology allowing reasonably contemporaneous and continuous communication between the parties.
teleconferencing, videoconferencing
(sec.25-ssec.1) Without limiting section 19 (3) , a mediator may— call a pre-mediation conference; and adjourn a mediation meeting if the mediator considers a party would be significantly disadvantaged if the meeting continues.
(sec.25-ssec.2) Mediation meetings are to be conducted— at a place and time that is reasonably convenient for the farmer; and with as little formality and technicality, and as quickly, as possible.
(sec.25-ssec.3) If the parties to a mediation agree, a mediation meeting may be held using any technology allowing reasonably contemporaneous and continuous communication between the parties. teleconferencing, videoconferencing
(a) call a pre-mediation conference; and
(b) adjourn a mediation meeting if the mediator considers a party would be significantly disadvantaged if the meeting continues.
(a) at a place and time that is reasonably convenient for the farmer; and
(b) with as little formality and technicality, and as quickly, as possible.
sec.25A
Mediator may invite other participants to mediation
sec.25A Mediator may invite other participants to mediation
This section applies if a mediator is arranging or conducting a mediation and reasonably considers that a relevant person should be allowed to be at, or participate in, a mediation meeting.
The mediator may invite the relevant person to be at, or participate in, the mediation meeting.
See also section 37 (2) (c) .
A relevant person is not obliged to accept an invitation under subsection (2) .
In this section—
relevant person , for a mediation, means a person, other than the mortgagee or farmer for the mediation, who—
has a legal or equitable interest in the farm property that is subject to the farm mortgage the subject of the mediation; or
has a potential or actual liability for the farm business debt the subject of the mediation.
a guarantor of a loan
s 25A ins 2020 No. 3 s 88
(sec.25A-ssec.1) This section applies if a mediator is arranging or conducting a mediation and reasonably considers that a relevant person should be allowed to be at, or participate in, a mediation meeting.
(sec.25A-ssec.2) The mediator may invite the relevant person to be at, or participate in, the mediation meeting. See also section 37 (2) (c) .
(sec.25A-ssec.3) A relevant person is not obliged to accept an invitation under subsection (2) .
(sec.25A-ssec.4) In this section— relevant person , for a mediation, means a person, other than the mortgagee or farmer for the mediation, who— has a legal or equitable interest in the farm property that is subject to the farm mortgage the subject of the mediation; or has a potential or actual liability for the farm business debt the subject of the mediation. a guarantor of a loan
(a) has a legal or equitable interest in the farm property that is subject to the farm mortgage the subject of the mediation; or
(b) has a potential or actual liability for the farm business debt the subject of the mediation. Example— a guarantor of a loan
pt.3-div.4
Agreement reached in mediation
Agreement reached in mediation
sec.26
Heads of agreement
sec.26 Heads of agreement
If a mediator considers the parties to a mediation have agreed, or are about to agree, on a matter relating to the farm business debt, the mediator must—
prepare, or supervise the preparation of, a document in the approved form that states the main points of agreement; and
give a copy of the document to each party during a mediation meeting.
If the parties are satisfied the document sets out the main points of their agreement about the matter, the parties may enter into a heads of agreement by each signing the document.
The heads of agreement has effect if the signed document, or each signed copy of the document, is given to the mediator within 10 business days after the end of the mediation meeting.
The approved form for a heads of agreement must—
state—
that a heads of agreement is subject to a cooling-off period unless the parties agree to waive the cooling-off period; and
that a farmer may revoke the heads of agreement during a cooling-off period by serving a signed notice of revocation on the mortgagee; and
the rights to compensation that may, and do not, arise under section 30 if a farmer revokes a heads of agreement during a cooling-off period; and
provide for the inclusion of the following matters—
when a cooling-off period starts and ends; and
a cooling-off period to be shortened or extended if the parties agree.
(sec.26-ssec.1) If a mediator considers the parties to a mediation have agreed, or are about to agree, on a matter relating to the farm business debt, the mediator must— prepare, or supervise the preparation of, a document in the approved form that states the main points of agreement; and give a copy of the document to each party during a mediation meeting.
(sec.26-ssec.2) If the parties are satisfied the document sets out the main points of their agreement about the matter, the parties may enter into a heads of agreement by each signing the document.
(sec.26-ssec.3) The heads of agreement has effect if the signed document, or each signed copy of the document, is given to the mediator within 10 business days after the end of the mediation meeting.
(sec.26-ssec.4) The approved form for a heads of agreement must— state— that a heads of agreement is subject to a cooling-off period unless the parties agree to waive the cooling-off period; and that a farmer may revoke the heads of agreement during a cooling-off period by serving a signed notice of revocation on the mortgagee; and the rights to compensation that may, and do not, arise under section 30 if a farmer revokes a heads of agreement during a cooling-off period; and provide for the inclusion of the following matters— when a cooling-off period starts and ends; and a cooling-off period to be shortened or extended if the parties agree.
(a) prepare, or supervise the preparation of, a document in the approved form that states the main points of agreement; and
(b) give a copy of the document to each party during a mediation meeting.
(a) state— (i) that a heads of agreement is subject to a cooling-off period unless the parties agree to waive the cooling-off period; and (ii) that a farmer may revoke the heads of agreement during a cooling-off period by serving a signed notice of revocation on the mortgagee; and (iii) the rights to compensation that may, and do not, arise under section 30 if a farmer revokes a heads of agreement during a cooling-off period; and
(i) that a heads of agreement is subject to a cooling-off period unless the parties agree to waive the cooling-off period; and
(ii) that a farmer may revoke the heads of agreement during a cooling-off period by serving a signed notice of revocation on the mortgagee; and
(iii) the rights to compensation that may, and do not, arise under section 30 if a farmer revokes a heads of agreement during a cooling-off period; and
(b) provide for the inclusion of the following matters— (i) when a cooling-off period starts and ends; and (ii) a cooling-off period to be shortened or extended if the parties agree.
(i) when a cooling-off period starts and ends; and
(ii) a cooling-off period to be shortened or extended if the parties agree.
(i) that a heads of agreement is subject to a cooling-off period unless the parties agree to waive the cooling-off period; and
(ii) that a farmer may revoke the heads of agreement during a cooling-off period by serving a signed notice of revocation on the mortgagee; and
(iii) the rights to compensation that may, and do not, arise under section 30 if a farmer revokes a heads of agreement during a cooling-off period; and
(i) when a cooling-off period starts and ends; and
(ii) a cooling-off period to be shortened or extended if the parties agree.
sec.27
Cooling-off period
sec.27 Cooling-off period
A heads of agreement entered into by the parties to a mediation is subject to a cooling-off period during which the farmer may revoke the agreement (the cooling-off period ) unless the parties agree to waive the cooling-off period under this section.
If the parties do not waive the cooling-off period, the period—
starts when the parties enter into the heads of agreement; and
ends on—
if the parties have agreed on a day on which the cooling-off period ends and the day is noted on the heads of agreement—the agreed day; or
otherwise—the day that is 10 business days after the parties entered into the heads of agreement.
The parties to a heads of agreement may agree to—
waive the cooling-off period for the agreement; or
at any time before the cooling-off period ends under subsection (2) (b) , shorten or extend the cooling-off period.
However, the parties to a heads of agreement may waive or shorten the cooling-off period for the agreement only if the farmer has had a reasonable opportunity to seek legal advice about—
the agreement; and
waiving or shortening the cooling-off period.
The agreement must be in writing.
(sec.27-ssec.1) A heads of agreement entered into by the parties to a mediation is subject to a cooling-off period during which the farmer may revoke the agreement (the cooling-off period ) unless the parties agree to waive the cooling-off period under this section.
(sec.27-ssec.2) If the parties do not waive the cooling-off period, the period— starts when the parties enter into the heads of agreement; and ends on— if the parties have agreed on a day on which the cooling-off period ends and the day is noted on the heads of agreement—the agreed day; or otherwise—the day that is 10 business days after the parties entered into the heads of agreement.
(sec.27-ssec.3) The parties to a heads of agreement may agree to— waive the cooling-off period for the agreement; or at any time before the cooling-off period ends under subsection (2) (b) , shorten or extend the cooling-off period.
(sec.27-ssec.4) However, the parties to a heads of agreement may waive or shorten the cooling-off period for the agreement only if the farmer has had a reasonable opportunity to seek legal advice about— the agreement; and waiving or shortening the cooling-off period.
(sec.27-ssec.5) The agreement must be in writing.
(a) starts when the parties enter into the heads of agreement; and
(b) ends on— (i) if the parties have agreed on a day on which the cooling-off period ends and the day is noted on the heads of agreement—the agreed day; or (ii) otherwise—the day that is 10 business days after the parties entered into the heads of agreement.
(i) if the parties have agreed on a day on which the cooling-off period ends and the day is noted on the heads of agreement—the agreed day; or
(ii) otherwise—the day that is 10 business days after the parties entered into the heads of agreement.
(i) if the parties have agreed on a day on which the cooling-off period ends and the day is noted on the heads of agreement—the agreed day; or
(ii) otherwise—the day that is 10 business days after the parties entered into the heads of agreement.
(a) waive the cooling-off period for the agreement; or
(b) at any time before the cooling-off period ends under subsection (2) (b) , shorten or extend the cooling-off period.
(a) the agreement; and
(b) waiving or shortening the cooling-off period.
sec.28
Mediator’s obligations after heads of agreement entered
sec.28 Mediator’s obligations after heads of agreement entered
After receiving a signed heads of agreement from the parties to a mediation, the mediator must ensure each party has a copy of the heads of agreement—
signed by each party; and
that states—
if the parties have waived the cooling-off period—there is no cooling-off period for the heads of agreement; or
otherwise—the days on which the cooling-off period for the heads of agreement starts and ends.
If, after signing the heads of agreement, the parties agree to shorten or extend the cooling-off period, the mediator must ensure each party has a copy of the heads of agreement that states—
the parties have agreed to shorten or extend the cooling-off period; and
the day on which the parties have agreed the cooling-off period ends.
(sec.28-ssec.1) After receiving a signed heads of agreement from the parties to a mediation, the mediator must ensure each party has a copy of the heads of agreement— signed by each party; and that states— if the parties have waived the cooling-off period—there is no cooling-off period for the heads of agreement; or otherwise—the days on which the cooling-off period for the heads of agreement starts and ends.
(sec.28-ssec.2) If, after signing the heads of agreement, the parties agree to shorten or extend the cooling-off period, the mediator must ensure each party has a copy of the heads of agreement that states— the parties have agreed to shorten or extend the cooling-off period; and the day on which the parties have agreed the cooling-off period ends.
(a) signed by each party; and
(b) that states— (i) if the parties have waived the cooling-off period—there is no cooling-off period for the heads of agreement; or (ii) otherwise—the days on which the cooling-off period for the heads of agreement starts and ends.
(i) if the parties have waived the cooling-off period—there is no cooling-off period for the heads of agreement; or
(ii) otherwise—the days on which the cooling-off period for the heads of agreement starts and ends.
(i) if the parties have waived the cooling-off period—there is no cooling-off period for the heads of agreement; or
(ii) otherwise—the days on which the cooling-off period for the heads of agreement starts and ends.
(a) the parties have agreed to shorten or extend the cooling-off period; and
(b) the day on which the parties have agreed the cooling-off period ends.
sec.28A
Heads of agreement binds parties
sec.28A Heads of agreement binds parties
A heads of agreement signed by the parties to a mediation binds each of the parties while the agreement is in effect.
sec.29
Revoking heads of agreement during cooling-off period
sec.29 Revoking heads of agreement during cooling-off period
The farmer may revoke the heads of agreement during the cooling-off period.
The farmer revokes the heads of agreement by serving the mortgagee with a notice of the revocation signed by the farmer, the farmer’s lawyer or another authorised agent.
When the notice is served on the mortgagee, the heads of agreement has no effect.
(sec.29-ssec.1) The farmer may revoke the heads of agreement during the cooling-off period.
(sec.29-ssec.2) The farmer revokes the heads of agreement by serving the mortgagee with a notice of the revocation signed by the farmer, the farmer’s lawyer or another authorised agent.
(sec.29-ssec.3) When the notice is served on the mortgagee, the heads of agreement has no effect.
sec.30
Compensation if heads of agreement revoked
sec.30 Compensation if heads of agreement revoked
This section applies if the farmer revokes the heads of agreement during the cooling-off period.
A party to the heads of agreement has a right to claim reasonable compensation for a benefit received by the other party under the heads of agreement before the agreement was revoked.
However, a mortgagee has no right to compensation under subsection (2) merely because the farmer revoked the heads of agreement.
This section and section 29 do not affect any other right or remedy available to a party to the heads of agreement arising from the farm business debt or the farm mortgage.
(sec.30-ssec.1) This section applies if the farmer revokes the heads of agreement during the cooling-off period.
(sec.30-ssec.2) A party to the heads of agreement has a right to claim reasonable compensation for a benefit received by the other party under the heads of agreement before the agreement was revoked.
(sec.30-ssec.3) However, a mortgagee has no right to compensation under subsection (2) merely because the farmer revoked the heads of agreement.
(sec.30-ssec.4) This section and section 29 do not affect any other right or remedy available to a party to the heads of agreement arising from the farm business debt or the farm mortgage.
sec.30A
Varying heads of agreement
sec.30A Varying heads of agreement
The parties to a mediation may, at any time, agree to vary a heads of agreement relating to the mediation and any contract, mortgage or other document entered into by the parties to give effect to the heads of agreement.
However, subsection (1) applies only if the farmer who was a party to the mediation has had a reasonable opportunity to seek legal advice about varying the heads of agreement.
The agreement must be in writing.
Subsection (1) does not apply to varying the cooling-off period for the heads of agreement.
(sec.30A-ssec.1) The parties to a mediation may, at any time, agree to vary a heads of agreement relating to the mediation and any contract, mortgage or other document entered into by the parties to give effect to the heads of agreement.
(sec.30A-ssec.2) However, subsection (1) applies only if the farmer who was a party to the mediation has had a reasonable opportunity to seek legal advice about varying the heads of agreement.
(sec.30A-ssec.3) The agreement must be in writing.
(sec.30A-ssec.4) Subsection (1) does not apply to varying the cooling-off period for the heads of agreement.
sec.31
Ensuring heads of agreement is given effect accurately
sec.31 Ensuring heads of agreement is given effect accurately
This section applies if a farmer and mortgagee who entered into a heads of agreement for a farm business debt are also the parties to a contract, mortgage or other document entered into to give effect to the heads of agreement.
The mortgagee must ensure the contract, mortgage or other document gives effect to the heads of agreement accurately.
Maximum penalty for subsection (2) —100 penalty units.
If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 89 , to have also committed the offence.
(sec.31-ssec.1) This section applies if a farmer and mortgagee who entered into a heads of agreement for a farm business debt are also the parties to a contract, mortgage or other document entered into to give effect to the heads of agreement.
(sec.31-ssec.2) The mortgagee must ensure the contract, mortgage or other document gives effect to the heads of agreement accurately. Maximum penalty for subsection (2) —100 penalty units. If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 89 , to have also committed the offence.
pt.3-div.5
Ending mediation
Ending mediation
sec.32
When mediation ends
sec.32 When mediation ends
Mediation for a farm business debt ends when—
the parties have entered into a heads of agreement and the mediator is satisfied there are no matters relating to the debt that have not been resolved by the parties; or
the parties have not entered into a heads of agreement, but—
either party has given the other party and the mediator a notice advising that the party does not intend to continue taking part in the mediation; or
the parties agree, or the mediator is satisfied, the mediation has proceeded as far as it reasonably can and agreement is unlikely; or
the mediator is satisfied either or both of the parties are not taking part in the mediation in good faith, or are unreasonably delaying mediation, and agreement is unlikely.
See sections 21 (7) and 22 (4) for circumstances in which a party has not taken part in mediation in good faith.
(a) the parties have entered into a heads of agreement and the mediator is satisfied there are no matters relating to the debt that have not been resolved by the parties; or
(b) the parties have not entered into a heads of agreement, but— (i) either party has given the other party and the mediator a notice advising that the party does not intend to continue taking part in the mediation; or (ii) the parties agree, or the mediator is satisfied, the mediation has proceeded as far as it reasonably can and agreement is unlikely; or (iii) the mediator is satisfied either or both of the parties are not taking part in the mediation in good faith, or are unreasonably delaying mediation, and agreement is unlikely. Note— See sections 21 (7) and 22 (4) for circumstances in which a party has not taken part in mediation in good faith.
(i) either party has given the other party and the mediator a notice advising that the party does not intend to continue taking part in the mediation; or
(ii) the parties agree, or the mediator is satisfied, the mediation has proceeded as far as it reasonably can and agreement is unlikely; or
(iii) the mediator is satisfied either or both of the parties are not taking part in the mediation in good faith, or are unreasonably delaying mediation, and agreement is unlikely. Note— See sections 21 (7) and 22 (4) for circumstances in which a party has not taken part in mediation in good faith.
(i) either party has given the other party and the mediator a notice advising that the party does not intend to continue taking part in the mediation; or
(ii) the parties agree, or the mediator is satisfied, the mediation has proceeded as far as it reasonably can and agreement is unlikely; or
(iii) the mediator is satisfied either or both of the parties are not taking part in the mediation in good faith, or are unreasonably delaying mediation, and agreement is unlikely. Note— See sections 21 (7) and 22 (4) for circumstances in which a party has not taken part in mediation in good faith.
sec.33
Summary of mediation
sec.33 Summary of mediation
At the end of the mediation, the mediator must prepare a summary of the mediation, in the approved form, that states—
the days when—
the parties agreed to the mediation; and
the first mediation meeting was held; and
the last mediation meeting was held; and
if the parties entered into a heads of agreement—the heads of agreement was entered into; and
if the parties did not enter into a heads of agreement—the mediation ended; and
if the parties did not enter into a heads of agreement—the reason the mediation ended; and
whether, in the mediator’s opinion, the mediation was satisfactory and the parties participated in good faith; and
if the mediator is of the opinion the mediation was not satisfactory or the parties did not participate in good faith—the mediator’s reasons for the opinion.
If the parties entered into a heads of agreement, a copy of the heads of agreement must accompany the summary.
The summary must be signed by the mediator and each party to the mediation or the party’s agent for the mediation.
If subsection (1) (c) or (d) applies and a party to the mediation does not agree with the mediator’s opinion or reasons for the opinion, the party may ask the mediator to note the party’s disagreement on the summary.
The mediator must, within 10 business days after the mediation ends, give a copy of the summary to each of the parties to the mediation and the authority.
(sec.33-ssec.1) At the end of the mediation, the mediator must prepare a summary of the mediation, in the approved form, that states— the days when— the parties agreed to the mediation; and the first mediation meeting was held; and the last mediation meeting was held; and if the parties entered into a heads of agreement—the heads of agreement was entered into; and if the parties did not enter into a heads of agreement—the mediation ended; and if the parties did not enter into a heads of agreement—the reason the mediation ended; and whether, in the mediator’s opinion, the mediation was satisfactory and the parties participated in good faith; and if the mediator is of the opinion the mediation was not satisfactory or the parties did not participate in good faith—the mediator’s reasons for the opinion.
(sec.33-ssec.2) If the parties entered into a heads of agreement, a copy of the heads of agreement must accompany the summary.
(sec.33-ssec.3) The summary must be signed by the mediator and each party to the mediation or the party’s agent for the mediation.
(sec.33-ssec.4) If subsection (1) (c) or (d) applies and a party to the mediation does not agree with the mediator’s opinion or reasons for the opinion, the party may ask the mediator to note the party’s disagreement on the summary.
(sec.33-ssec.5) The mediator must, within 10 business days after the mediation ends, give a copy of the summary to each of the parties to the mediation and the authority.
(a) the days when— (i) the parties agreed to the mediation; and (ii) the first mediation meeting was held; and (iii) the last mediation meeting was held; and (iv) if the parties entered into a heads of agreement—the heads of agreement was entered into; and (v) if the parties did not enter into a heads of agreement—the mediation ended; and
(i) the parties agreed to the mediation; and
(ii) the first mediation meeting was held; and
(iii) the last mediation meeting was held; and
(iv) if the parties entered into a heads of agreement—the heads of agreement was entered into; and
(v) if the parties did not enter into a heads of agreement—the mediation ended; and
(b) if the parties did not enter into a heads of agreement—the reason the mediation ended; and
(c) whether, in the mediator’s opinion, the mediation was satisfactory and the parties participated in good faith; and
(d) if the mediator is of the opinion the mediation was not satisfactory or the parties did not participate in good faith—the mediator’s reasons for the opinion.
(i) the parties agreed to the mediation; and
(ii) the first mediation meeting was held; and
(iii) the last mediation meeting was held; and
(iv) if the parties entered into a heads of agreement—the heads of agreement was entered into; and
(v) if the parties did not enter into a heads of agreement—the mediation ended; and
pt.3-div.6
General
General
sec.34
Guidelines for conducting mediation
sec.34 Guidelines for conducting mediation
The authority must make guidelines about the conduct of mediation for farm business debts.
Without limiting subsection (1) , a guideline may be made about—
the procedure for starting mediation and arranging mediation meetings; or
the obligations of a mediator to keep records about mediations conducted.
When preparing the guidelines, the authority must consult with—
at least 1 organisation that represents the interests of Queensland farmers; and
at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers.
The authority must publish the guidelines on the authority’s website.
(sec.34-ssec.1) The authority must make guidelines about the conduct of mediation for farm business debts.
(sec.34-ssec.2) Without limiting subsection (1) , a guideline may be made about— the procedure for starting mediation and arranging mediation meetings; or the obligations of a mediator to keep records about mediations conducted.
(sec.34-ssec.3) When preparing the guidelines, the authority must consult with— at least 1 organisation that represents the interests of Queensland farmers; and at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers.
(sec.34-ssec.4) The authority must publish the guidelines on the authority’s website.
(a) the procedure for starting mediation and arranging mediation meetings; or
(b) the obligations of a mediator to keep records about mediations conducted.
(a) at least 1 organisation that represents the interests of Queensland farmers; and
(b) at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers.
sec.35
Mediation information package
sec.35 Mediation information package
The authority must prepare a mediation information package that includes—
information about mediation for a farm business debt under this Act, including information about the rights and obligations of a farmer in relation to the mediation; and
copies of the approved forms under this Act for use in relation to mediation; and
information about mediators who may conduct mediations under this Act, including how to access information in the register of mediators kept under section 76 .
The authority must give a copy of the mediation information package to a mortgagee or farmer on request and at no cost.
(sec.35-ssec.1) The authority must prepare a mediation information package that includes— information about mediation for a farm business debt under this Act, including information about the rights and obligations of a farmer in relation to the mediation; and copies of the approved forms under this Act for use in relation to mediation; and information about mediators who may conduct mediations under this Act, including how to access information in the register of mediators kept under section 76 .
(sec.35-ssec.2) The authority must give a copy of the mediation information package to a mortgagee or farmer on request and at no cost.
(a) information about mediation for a farm business debt under this Act, including information about the rights and obligations of a farmer in relation to the mediation; and
(b) copies of the approved forms under this Act for use in relation to mediation; and
(c) information about mediators who may conduct mediations under this Act, including how to access information in the register of mediators kept under section 76 .
sec.36
Rules of evidence
sec.36 Rules of evidence
The rules of evidence do not apply to mediation meetings.
sec.37
Mediation not open to the public
sec.37 Mediation not open to the public
A mediation meeting is not open to the public.
A person who is not a party to a mediation meeting may be at, or participate in, the meeting—
as a person representing a party under section 23 ; or
as an advisor of the farmer under section 24 ; or
with the mediator’s approval.
(sec.37-ssec.1) A mediation meeting is not open to the public.
(sec.37-ssec.2) A person who is not a party to a mediation meeting may be at, or participate in, the meeting— as a person representing a party under section 23 ; or as an advisor of the farmer under section 24 ; or with the mediator’s approval.
(a) as a person representing a party under section 23 ; or
(b) as an advisor of the farmer under section 24 ; or
(c) with the mediator’s approval.
sec.38
Confidentiality
sec.38 Confidentiality
The following matters are not admissible in any civil, criminal or administrative proceeding—
anything said or done during a mediation meeting;
a document prepared for the purposes of a mediation meeting;
a document prepared for the purpose of being given to a party to a mediation as required under section 21 or 22 .
This section does not apply to—
a heads of agreement; or
a contract, mortgage or other document prepared to give effect to a heads of agreement; or
a summary of a mediation prepared under section 33 ; or
a proceeding or a part of a proceeding before QCAT that is not open to the public, including, for example, a proceeding started under section 82 ; or
a proceeding or a part of a proceeding that relates to—
violence or a threat of violence; or
ongoing activity of a criminal nature being concealed; or
the abuse of a child or another person.
In this section—
mediation meeting includes anything done for the purpose of arranging for, or following up matters discussed or agreed at, a mediation meeting.
(sec.38-ssec.1) The following matters are not admissible in any civil, criminal or administrative proceeding— anything said or done during a mediation meeting; a document prepared for the purposes of a mediation meeting; a document prepared for the purpose of being given to a party to a mediation as required under section 21 or 22 .
(sec.38-ssec.2) This section does not apply to— a heads of agreement; or a contract, mortgage or other document prepared to give effect to a heads of agreement; or a summary of a mediation prepared under section 33 ; or a proceeding or a part of a proceeding before QCAT that is not open to the public, including, for example, a proceeding started under section 82 ; or a proceeding or a part of a proceeding that relates to— violence or a threat of violence; or ongoing activity of a criminal nature being concealed; or the abuse of a child or another person.
(sec.38-ssec.3) In this section— mediation meeting includes anything done for the purpose of arranging for, or following up matters discussed or agreed at, a mediation meeting.
(a) anything said or done during a mediation meeting;
(b) a document prepared for the purposes of a mediation meeting;
(c) a document prepared for the purpose of being given to a party to a mediation as required under section 21 or 22 .
(a) a heads of agreement; or
(b) a contract, mortgage or other document prepared to give effect to a heads of agreement; or
(c) a summary of a mediation prepared under section 33 ; or
(d) a proceeding or a part of a proceeding before QCAT that is not open to the public, including, for example, a proceeding started under section 82 ; or
(e) a proceeding or a part of a proceeding that relates to— (i) violence or a threat of violence; or (ii) ongoing activity of a criminal nature being concealed; or (iii) the abuse of a child or another person.
(i) violence or a threat of violence; or
(ii) ongoing activity of a criminal nature being concealed; or
(iii) the abuse of a child or another person.
(i) violence or a threat of violence; or
(ii) ongoing activity of a criminal nature being concealed; or
(iii) the abuse of a child or another person.
sec.39
Costs
sec.39 Costs
Each party to a mediation must pay—
the party’s own costs for the mediation; and
half of the mediator’s fee and costs for the mediation.
A party’s costs for a mediation include the costs incurred by the party in relation to the mediation.
the costs of travel and accommodation incurred to attend a mediation meeting
This section applies subject to section 23 (5) .
(sec.39-ssec.1) Each party to a mediation must pay— the party’s own costs for the mediation; and half of the mediator’s fee and costs for the mediation.
(sec.39-ssec.1A) A party’s costs for a mediation include the costs incurred by the party in relation to the mediation. the costs of travel and accommodation incurred to attend a mediation meeting
(sec.39-ssec.2) This section applies subject to section 23 (5) .
(a) the party’s own costs for the mediation; and
(b) half of the mediator’s fee and costs for the mediation.
pt.4
Action by authority
Action by authority
pt.4-div.1
Suspending enforcement action
Suspending enforcement action
sec.40
Applying for enforcement action suspension certificate
sec.40 Applying for enforcement action suspension certificate
This section applies to a farmer if—
the farmer is in default under a farm mortgage; and
the farmer has given the mortgagee a request for mediation notice; and
the mortgagee has failed to mediate.
See section 44 for when a mortgagee has failed to mediate.
The farmer may apply to the authority for a certificate (an enforcement action suspension certificate ) to stop the mortgagee taking enforcement action under the farm mortgage.
The application must—
be in the approved form; and
state the facts and circumstances forming the basis of the claim the mortgagee has failed to mediate; and
be accompanied by the fee prescribed by regulation.
(sec.40-ssec.1) This section applies to a farmer if— the farmer is in default under a farm mortgage; and the farmer has given the mortgagee a request for mediation notice; and the mortgagee has failed to mediate. See section 44 for when a mortgagee has failed to mediate.
(sec.40-ssec.2) The farmer may apply to the authority for a certificate (an enforcement action suspension certificate ) to stop the mortgagee taking enforcement action under the farm mortgage.
(sec.40-ssec.3) The application must— be in the approved form; and state the facts and circumstances forming the basis of the claim the mortgagee has failed to mediate; and be accompanied by the fee prescribed by regulation.
(a) the farmer is in default under a farm mortgage; and
(b) the farmer has given the mortgagee a request for mediation notice; and
(c) the mortgagee has failed to mediate. Note— See section 44 for when a mortgagee has failed to mediate.
(a) be in the approved form; and
(b) state the facts and circumstances forming the basis of the claim the mortgagee has failed to mediate; and
(c) be accompanied by the fee prescribed by regulation.
sec.41
Show cause notice
sec.41 Show cause notice
The authority must give a show cause notice to the mortgagee before deciding a farmer’s application for an enforcement action suspension certificate.
The show cause notice must state the mortgagee may, within the show cause period, make written representations to the authority to show why an enforcement action suspension certificate should not be issued.
The show cause period must end at least 20 business days after the show cause notice is given to the mortgagee.
The show cause notice must be accompanied by a copy of the farmer’s application.
(sec.41-ssec.1) The authority must give a show cause notice to the mortgagee before deciding a farmer’s application for an enforcement action suspension certificate.
(sec.41-ssec.2) The show cause notice must state the mortgagee may, within the show cause period, make written representations to the authority to show why an enforcement action suspension certificate should not be issued.
(sec.41-ssec.3) The show cause period must end at least 20 business days after the show cause notice is given to the mortgagee.
(sec.41-ssec.4) The show cause notice must be accompanied by a copy of the farmer’s application.
sec.42
Representations about show cause notice
sec.42 Representations about show cause notice
The mortgagee may make written representations about the show cause notice to the authority during the show cause period.
The authority must give a copy of all representations made in accordance with the show cause notice to the farmer as soon as practicable after the representations are made.
(sec.42-ssec.1) The mortgagee may make written representations about the show cause notice to the authority during the show cause period.
(sec.42-ssec.2) The authority must give a copy of all representations made in accordance with the show cause notice to the farmer as soon as practicable after the representations are made.
sec.43
Deciding application
sec.43 Deciding application
The authority must—
consider the farmer’s application for an enforcement action suspension certificate; and
consider all representations made in accordance with the show cause notice; and
decide to approve or refuse the application; and
as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
The authority must decide to approve the application if the authority is satisfied—
the farmer is in default under the farm mortgage; and
the farmer has given the mortgagee a request for mediation notice; and
an exemption certificate is not in force for the farm mortgage; and
the mortgagee has failed to, and does not intend to, mediate in relation to the farm mortgage.
See section 44 for when a mortgagee has failed to mediate.
If the authority decides to approve the application, the notice the authority gives the mortgagee under subsection (1) (d) must be an information notice for the decision.
If the authority decides to refuse the application, the notice the authority gives the farmer under subsection (1) (d) must be an information notice for the decision.
(sec.43-ssec.1) The authority must— consider the farmer’s application for an enforcement action suspension certificate; and consider all representations made in accordance with the show cause notice; and decide to approve or refuse the application; and as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
(sec.43-ssec.2) The authority must decide to approve the application if the authority is satisfied— the farmer is in default under the farm mortgage; and the farmer has given the mortgagee a request for mediation notice; and an exemption certificate is not in force for the farm mortgage; and the mortgagee has failed to, and does not intend to, mediate in relation to the farm mortgage. See section 44 for when a mortgagee has failed to mediate.
(sec.43-ssec.3) If the authority decides to approve the application, the notice the authority gives the mortgagee under subsection (1) (d) must be an information notice for the decision.
(sec.43-ssec.4) If the authority decides to refuse the application, the notice the authority gives the farmer under subsection (1) (d) must be an information notice for the decision.
(a) consider the farmer’s application for an enforcement action suspension certificate; and
(b) consider all representations made in accordance with the show cause notice; and
(c) decide to approve or refuse the application; and
(d) as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
(a) the farmer is in default under the farm mortgage; and
(b) the farmer has given the mortgagee a request for mediation notice; and
(c) an exemption certificate is not in force for the farm mortgage; and
(d) the mortgagee has failed to, and does not intend to, mediate in relation to the farm mortgage. Note— See section 44 for when a mortgagee has failed to mediate.
sec.44
When a mortgagee has failed to mediate
sec.44 When a mortgagee has failed to mediate
This section applies if the farmer gives a request for mediation notice to the mortgagee.
For section 43 , the mortgagee has failed to mediate in relation to the farm business debt if—
the mortgagee does not respond to the notice within 15 business days after the notice was given; or
the mortgagee has given the farmer a notice refusing the mediation; or
the mortgagee has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or
all of the following apply—
the farmer and the mortgagee agreed to mediate in relation to the farm business debt;
3 months have elapsed since the request for mediation notice was given;
during the period since the notice was given, the farmer has attempted to mediate with the mortgagee in good faith;
there has been no satisfactory mediation between the farmer and the mortgagee.
(sec.44-ssec.1) This section applies if the farmer gives a request for mediation notice to the mortgagee.
(sec.44-ssec.2) For section 43 , the mortgagee has failed to mediate in relation to the farm business debt if— the mortgagee does not respond to the notice within 15 business days after the notice was given; or the mortgagee has given the farmer a notice refusing the mediation; or the mortgagee has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or all of the following apply— the farmer and the mortgagee agreed to mediate in relation to the farm business debt; 3 months have elapsed since the request for mediation notice was given; during the period since the notice was given, the farmer has attempted to mediate with the mortgagee in good faith; there has been no satisfactory mediation between the farmer and the mortgagee.
(a) the mortgagee does not respond to the notice within 15 business days after the notice was given; or
(b) the mortgagee has given the farmer a notice refusing the mediation; or
(c) the mortgagee has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or
(d) all of the following apply— (i) the farmer and the mortgagee agreed to mediate in relation to the farm business debt; (ii) 3 months have elapsed since the request for mediation notice was given; (iii) during the period since the notice was given, the farmer has attempted to mediate with the mortgagee in good faith; (iv) there has been no satisfactory mediation between the farmer and the mortgagee.
(i) the farmer and the mortgagee agreed to mediate in relation to the farm business debt;
(ii) 3 months have elapsed since the request for mediation notice was given;
(iii) during the period since the notice was given, the farmer has attempted to mediate with the mortgagee in good faith;
(iv) there has been no satisfactory mediation between the farmer and the mortgagee.
(i) the farmer and the mortgagee agreed to mediate in relation to the farm business debt;
(ii) 3 months have elapsed since the request for mediation notice was given;
(iii) during the period since the notice was given, the farmer has attempted to mediate with the mortgagee in good faith;
(iv) there has been no satisfactory mediation between the farmer and the mortgagee.
sec.45
Failure to decide application
sec.45 Failure to decide application
If the authority fails to decide the farmer’s application for an enforcement action suspension certificate by the required day, the authority is taken to have decided to refuse the application.
The required day is the day that is 20 business days after the end of the show cause period for the show cause notice the authority gave the mortgagee under section 41 .
If the application is taken to be refused under this section, the farmer is entitled to be given an information notice for the decision by the authority.
(sec.45-ssec.1) If the authority fails to decide the farmer’s application for an enforcement action suspension certificate by the required day, the authority is taken to have decided to refuse the application.
(sec.45-ssec.2) The required day is the day that is 20 business days after the end of the show cause period for the show cause notice the authority gave the mortgagee under section 41 .
(sec.45-ssec.3) If the application is taken to be refused under this section, the farmer is entitled to be given an information notice for the decision by the authority.
sec.46
Issuing certificate
sec.46 Issuing certificate
If the authority decides to approve a farmer’s application for an enforcement action suspension certificate, the authority must issue the certificate, in the approved form, to the farmer.
The enforcement action suspension certificate must—
state the name of the farmer and the mortgagee; and
identify the farm property; and
state when the certificate ends.
The authority must give a copy of the certificate to the mortgagee.
The authority must comply with this section as soon as practicable after deciding to approve the farmer’s application.
(sec.46-ssec.1) If the authority decides to approve a farmer’s application for an enforcement action suspension certificate, the authority must issue the certificate, in the approved form, to the farmer.
(sec.46-ssec.2) The enforcement action suspension certificate must— state the name of the farmer and the mortgagee; and identify the farm property; and state when the certificate ends.
(sec.46-ssec.3) The authority must give a copy of the certificate to the mortgagee.
(sec.46-ssec.4) The authority must comply with this section as soon as practicable after deciding to approve the farmer’s application.
(a) state the name of the farmer and the mortgagee; and
(b) identify the farm property; and
(c) state when the certificate ends.
sec.47
Duration
sec.47 Duration
An enforcement action suspension certificate for a farm mortgage ends on the earlier of the following days—
if the farmer and the mortgagee took part in mediation for the farm business debt and the mediation was satisfactory—the last day of the mediation;
otherwise—the day that is 6 months after—
if the mortgagee gave the farmer a notice refusing the mediation—the notice was given; or
otherwise—the day that is 15 business days after the farmer gave the request for mediation notice to the mortgagee.
While an enforcement action suspension certificate is in force for a farm mortgage the mortgagee may not take enforcement action. See section 12 (1) .
(a) if the farmer and the mortgagee took part in mediation for the farm business debt and the mediation was satisfactory—the last day of the mediation;
(b) otherwise—the day that is 6 months after— (i) if the mortgagee gave the farmer a notice refusing the mediation—the notice was given; or (ii) otherwise—the day that is 15 business days after the farmer gave the request for mediation notice to the mortgagee.
(i) if the mortgagee gave the farmer a notice refusing the mediation—the notice was given; or
(ii) otherwise—the day that is 15 business days after the farmer gave the request for mediation notice to the mortgagee.
(i) if the mortgagee gave the farmer a notice refusing the mediation—the notice was given; or
(ii) otherwise—the day that is 15 business days after the farmer gave the request for mediation notice to the mortgagee.
pt.4-div.2
Exemption from obligation to mediation
Exemption from obligation to mediation
sec.48
Applying for exemption certificate
sec.48 Applying for exemption certificate
The mortgagee for a farm mortgage may apply to the authority for a certificate (an exemption certificate ) exempting the mortgagee from the obligation to offer mediation under this Act before taking enforcement action in relation to the farmer’s default under the farm mortgage.
The application must—
be in the approved form; and
state the facts and circumstances forming the basis of the ground on which the mortgagee claims an exemption certificate should be issued; and
be accompanied by the fee prescribed by regulation.
(sec.48-ssec.1) The mortgagee for a farm mortgage may apply to the authority for a certificate (an exemption certificate ) exempting the mortgagee from the obligation to offer mediation under this Act before taking enforcement action in relation to the farmer’s default under the farm mortgage.
(sec.48-ssec.2) The application must— be in the approved form; and state the facts and circumstances forming the basis of the ground on which the mortgagee claims an exemption certificate should be issued; and be accompanied by the fee prescribed by regulation.
(a) be in the approved form; and
(b) state the facts and circumstances forming the basis of the ground on which the mortgagee claims an exemption certificate should be issued; and
(c) be accompanied by the fee prescribed by regulation.
sec.49
Grounds
sec.49 Grounds
Each of the following is a ground for issuing an exemption certificate in relation to a farmer’s default under a farm mortgage—
the farmer and the mortgagee took part in mediation for the farm business debt conducted under this Act and the mediation—
considered matters relating to the farmer’s default; and
was satisfactory;
See also section 92 about the application of this Act.
the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default;
See section 53 for when a farmer has failed to mediate.
all of the following apply—
the farmer and the mortgagee agreed to mediate for the farm business debt about matters relating to the farmer’s default;
3 months, or a longer period agreed in writing by the mortgagee, has elapsed since the mortgagee gave a notice inviting a request for mediation to the farmer;
during that period, the mortgagee has attempted to mediate in good faith;
there has been no satisfactory mediation between the farmer and the mortgagee;
the farm business debt is secured, in part, by a farm mortgage of farm property in another State and, under the corresponding law of that State—
the mediation for the farm business debt considered matters relating to the farmer’s default under the farm mortgage of farm property in Queensland and was satisfactory; or
the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default.
For subsection (1) (c) (iii) , a mortgagee not agreeing to reduce or forgive a debt does not, of itself, mean the mortgagee has not attempted to mediate in good faith.
s 49 amd 2020 No. 3 s 89 ; 2024 No. 17 s 192 s ch 1 pt 1
(sec.49-ssec.1) Each of the following is a ground for issuing an exemption certificate in relation to a farmer’s default under a farm mortgage— the farmer and the mortgagee took part in mediation for the farm business debt conducted under this Act and the mediation— considered matters relating to the farmer’s default; and was satisfactory; See also section 92 about the application of this Act. the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default; See section 53 for when a farmer has failed to mediate. all of the following apply— the farmer and the mortgagee agreed to mediate for the farm business debt about matters relating to the farmer’s default; 3 months, or a longer period agreed in writing by the mortgagee, has elapsed since the mortgagee gave a notice inviting a request for mediation to the farmer; during that period, the mortgagee has attempted to mediate in good faith; there has been no satisfactory mediation between the farmer and the mortgagee; the farm business debt is secured, in part, by a farm mortgage of farm property in another State and, under the corresponding law of that State— the mediation for the farm business debt considered matters relating to the farmer’s default under the farm mortgage of farm property in Queensland and was satisfactory; or the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default.
(sec.49-ssec.2) For subsection (1) (c) (iii) , a mortgagee not agreeing to reduce or forgive a debt does not, of itself, mean the mortgagee has not attempted to mediate in good faith.
(a) the farmer and the mortgagee took part in mediation for the farm business debt conducted under this Act and the mediation— (i) considered matters relating to the farmer’s default; and (ii) was satisfactory; Note— See also section 92 about the application of this Act.
(i) considered matters relating to the farmer’s default; and
(ii) was satisfactory;
(b) the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default; Note— See section 53 for when a farmer has failed to mediate.
(c) all of the following apply— (i) the farmer and the mortgagee agreed to mediate for the farm business debt about matters relating to the farmer’s default; (ii) 3 months, or a longer period agreed in writing by the mortgagee, has elapsed since the mortgagee gave a notice inviting a request for mediation to the farmer; (iii) during that period, the mortgagee has attempted to mediate in good faith; (iv) there has been no satisfactory mediation between the farmer and the mortgagee;
(i) the farmer and the mortgagee agreed to mediate for the farm business debt about matters relating to the farmer’s default;
(ii) 3 months, or a longer period agreed in writing by the mortgagee, has elapsed since the mortgagee gave a notice inviting a request for mediation to the farmer;
(iii) during that period, the mortgagee has attempted to mediate in good faith;
(iv) there has been no satisfactory mediation between the farmer and the mortgagee;
(d) the farm business debt is secured, in part, by a farm mortgage of farm property in another State and, under the corresponding law of that State— (i) the mediation for the farm business debt considered matters relating to the farmer’s default under the farm mortgage of farm property in Queensland and was satisfactory; or (ii) the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default.
(i) the mediation for the farm business debt considered matters relating to the farmer’s default under the farm mortgage of farm property in Queensland and was satisfactory; or
(ii) the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default.
(i) considered matters relating to the farmer’s default; and
(ii) was satisfactory;
(i) the farmer and the mortgagee agreed to mediate for the farm business debt about matters relating to the farmer’s default;
(ii) 3 months, or a longer period agreed in writing by the mortgagee, has elapsed since the mortgagee gave a notice inviting a request for mediation to the farmer;
(iii) during that period, the mortgagee has attempted to mediate in good faith;
(iv) there has been no satisfactory mediation between the farmer and the mortgagee;
(i) the mediation for the farm business debt considered matters relating to the farmer’s default under the farm mortgage of farm property in Queensland and was satisfactory; or
(ii) the farmer has failed to, and does not intend to, mediate for the farm business debt about matters relating to the farmer’s default.
sec.50
Show cause notice
sec.50 Show cause notice
The authority must give a show cause notice to the farmer before deciding a mortgagee’s application for an exemption certificate.
The show cause notice must state the farmer may, within the show cause period, make written representations to the authority to show why an exemption certificate should not be issued.
The show cause period must end at least 20 business days after the farmer is given the show cause notice.
The show cause notice must be accompanied by a copy of the mortgagee’s application.
(sec.50-ssec.1) The authority must give a show cause notice to the farmer before deciding a mortgagee’s application for an exemption certificate.
(sec.50-ssec.2) The show cause notice must state the farmer may, within the show cause period, make written representations to the authority to show why an exemption certificate should not be issued.
(sec.50-ssec.3) The show cause period must end at least 20 business days after the farmer is given the show cause notice.
(sec.50-ssec.4) The show cause notice must be accompanied by a copy of the mortgagee’s application.
sec.51
Representations about show cause notice
sec.51 Representations about show cause notice
The farmer may make written representations about the show cause notice to the authority during the show cause period.
The authority must give a copy of all representations made in accordance with the show cause notice to the mortgagee as soon as practicable after the representations are made.
(sec.51-ssec.1) The farmer may make written representations about the show cause notice to the authority during the show cause period.
(sec.51-ssec.2) The authority must give a copy of all representations made in accordance with the show cause notice to the mortgagee as soon as practicable after the representations are made.
sec.52
Deciding application
sec.52 Deciding application
The authority must—
consider the mortgagee’s application for an exemption certificate; and
consider all representations made in accordance with the show cause notice; and
decide to approve or refuse the application; and
as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
The authority must decide to approve the application if the authority is satisfied—
the farmer is in default under the farm mortgage; and
an enforcement action suspension certificate is not in force for the farm mortgage; and
there is a ground, relating to the farmer’s default, to issue the exemption certificate.
If a ground mentioned in section 49 (1) (a) or (d) exists, the authority may decide to issue an exemption certificate for the farm mortgage whether or not the mortgagee gave a notice inviting a request for mediation to the farmer.
The authority must decide to refuse the application if the authority is satisfied—
a heads of agreement is in force for the farm business debt; and
the cooling-off period for the heads of agreement has not ended.
If the authority decides to approve the application, the notice the authority gives the farmer under subsection (1) (d) must be an information notice for the decision.
If the authority decides to refuse the application, the notice the authority gives the mortgagee under subsection (1) (d) must be an information notice for the decision.
s 52 amd 2024 No. 17 s 192 s ch 1 pt 1
(sec.52-ssec.1) The authority must— consider the mortgagee’s application for an exemption certificate; and consider all representations made in accordance with the show cause notice; and decide to approve or refuse the application; and as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
(sec.52-ssec.2) The authority must decide to approve the application if the authority is satisfied— the farmer is in default under the farm mortgage; and an enforcement action suspension certificate is not in force for the farm mortgage; and there is a ground, relating to the farmer’s default, to issue the exemption certificate.
(sec.52-ssec.3) If a ground mentioned in section 49 (1) (a) or (d) exists, the authority may decide to issue an exemption certificate for the farm mortgage whether or not the mortgagee gave a notice inviting a request for mediation to the farmer.
(sec.52-ssec.4) The authority must decide to refuse the application if the authority is satisfied— a heads of agreement is in force for the farm business debt; and the cooling-off period for the heads of agreement has not ended.
(sec.52-ssec.5) If the authority decides to approve the application, the notice the authority gives the farmer under subsection (1) (d) must be an information notice for the decision.
(sec.52-ssec.6) If the authority decides to refuse the application, the notice the authority gives the mortgagee under subsection (1) (d) must be an information notice for the decision.
(a) consider the mortgagee’s application for an exemption certificate; and
(b) consider all representations made in accordance with the show cause notice; and
(c) decide to approve or refuse the application; and
(d) as soon as practicable after making the decision, give the farmer and the mortgagee a notice that states the decision.
(a) the farmer is in default under the farm mortgage; and
(b) an enforcement action suspension certificate is not in force for the farm mortgage; and
(c) there is a ground, relating to the farmer’s default, to issue the exemption certificate.
(a) a heads of agreement is in force for the farm business debt; and
(b) the cooling-off period for the heads of agreement has not ended.
sec.53
When a farmer has failed to mediate
sec.53 When a farmer has failed to mediate
This section applies if the mortgagee gives a notice inviting a request for mediation to the farmer.
For section 49 , the farmer has failed to mediate, and is taken to not intend to mediate, in relation to the farm business debt if the farmer—
did not, within 20 business days after the notice was given, ask for mediation by giving a request for mediation notice to the mortgagee; or
has given a notice to the mortgagee or the authority stating the farmer declines mediation; or
has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or
has not responded in writing to another notice from the mortgagee inviting the farmer to attend a mediation meeting within 20 business days after being given the notice.
Despite subsection (2) (a) and (d) , the authority may be satisfied the farmer has not failed to, and intends to, mediate in relation to the farm business debt if the authority is satisfied the farmer—
did not, because of particular circumstances—
ask for mediation as mentioned in subsection (2) (a) ; or
respond to an invitation from the mortgagee as mentioned in subsection (2) (d) ; and
has asked, or intends to ask, for mediation by giving a request for mediation notice to the mortgagee within a period that is reasonable in the particular circumstances.
If the area in which the farm property is located experiences severe weather conditions such as flooding or a cyclone, the authority may consider it is reasonable for the farmer not to give a request for mediation notice to the mortgagee until after the weather has eased and the farmer has dealt with damage caused by the weather.
A notice mentioned in subsection (2) (d) must state—
the notice is an invitation under this section; and
that the farmer’s failure to respond to the invitation in writing within 20 business days after the invitation is given may—
be taken as the farmer declining mediation; and
be a ground for the authority to issue an exemption certificate that would allow the mortgagee to take enforcement action under the farm mortgage.
s 53 amd 2020 No. 3 s 90 ; 2024 No. 17 s 192 s ch 1 pt 1
(sec.53-ssec.1) This section applies if the mortgagee gives a notice inviting a request for mediation to the farmer.
(sec.53-ssec.2) For section 49 , the farmer has failed to mediate, and is taken to not intend to mediate, in relation to the farm business debt if the farmer— did not, within 20 business days after the notice was given, ask for mediation by giving a request for mediation notice to the mortgagee; or has given a notice to the mortgagee or the authority stating the farmer declines mediation; or has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or has not responded in writing to another notice from the mortgagee inviting the farmer to attend a mediation meeting within 20 business days after being given the notice.
(sec.53-ssec.3) Despite subsection (2) (a) and (d) , the authority may be satisfied the farmer has not failed to, and intends to, mediate in relation to the farm business debt if the authority is satisfied the farmer— did not, because of particular circumstances— ask for mediation as mentioned in subsection (2) (a) ; or respond to an invitation from the mortgagee as mentioned in subsection (2) (d) ; and has asked, or intends to ask, for mediation by giving a request for mediation notice to the mortgagee within a period that is reasonable in the particular circumstances. If the area in which the farm property is located experiences severe weather conditions such as flooding or a cyclone, the authority may consider it is reasonable for the farmer not to give a request for mediation notice to the mortgagee until after the weather has eased and the farmer has dealt with damage caused by the weather.
(sec.53-ssec.4) A notice mentioned in subsection (2) (d) must state— the notice is an invitation under this section; and that the farmer’s failure to respond to the invitation in writing within 20 business days after the invitation is given may— be taken as the farmer declining mediation; and be a ground for the authority to issue an exemption certificate that would allow the mortgagee to take enforcement action under the farm mortgage.
(a) did not, within 20 business days after the notice was given, ask for mediation by giving a request for mediation notice to the mortgagee; or
(b) has given a notice to the mortgagee or the authority stating the farmer declines mediation; or
(c) has failed to take part in mediation in good faith or has unreasonably delayed the mediation; or
(d) has not responded in writing to another notice from the mortgagee inviting the farmer to attend a mediation meeting within 20 business days after being given the notice.
(a) did not, because of particular circumstances— (i) ask for mediation as mentioned in subsection (2) (a) ; or (ii) respond to an invitation from the mortgagee as mentioned in subsection (2) (d) ; and
(i) ask for mediation as mentioned in subsection (2) (a) ; or
(ii) respond to an invitation from the mortgagee as mentioned in subsection (2) (d) ; and
(b) has asked, or intends to ask, for mediation by giving a request for mediation notice to the mortgagee within a period that is reasonable in the particular circumstances. Example— If the area in which the farm property is located experiences severe weather conditions such as flooding or a cyclone, the authority may consider it is reasonable for the farmer not to give a request for mediation notice to the mortgagee until after the weather has eased and the farmer has dealt with damage caused by the weather.
(i) ask for mediation as mentioned in subsection (2) (a) ; or
(ii) respond to an invitation from the mortgagee as mentioned in subsection (2) (d) ; and
(a) the notice is an invitation under this section; and
(b) that the farmer’s failure to respond to the invitation in writing within 20 business days after the invitation is given may— (i) be taken as the farmer declining mediation; and (ii) be a ground for the authority to issue an exemption certificate that would allow the mortgagee to take enforcement action under the farm mortgage.
(i) be taken as the farmer declining mediation; and
(ii) be a ground for the authority to issue an exemption certificate that would allow the mortgagee to take enforcement action under the farm mortgage.
(i) be taken as the farmer declining mediation; and
(ii) be a ground for the authority to issue an exemption certificate that would allow the mortgagee to take enforcement action under the farm mortgage.
sec.54
Failure to decide application
sec.54 Failure to decide application
If the authority fails to decide the mortgagee’s application for an exemption certificate by the required day, the authority is taken to have decided to refuse the application.
The required day is the day that is 20 business days after the end of the show cause period for the show cause notice the authority gave the farmer under section 50 .
If the application is taken to be refused under this section, the mortgagee is entitled to be given an information notice for the decision by the authority.
(sec.54-ssec.1) If the authority fails to decide the mortgagee’s application for an exemption certificate by the required day, the authority is taken to have decided to refuse the application.
(sec.54-ssec.2) The required day is the day that is 20 business days after the end of the show cause period for the show cause notice the authority gave the farmer under section 50 .
(sec.54-ssec.3) If the application is taken to be refused under this section, the mortgagee is entitled to be given an information notice for the decision by the authority.
sec.55
Issuing certificate
sec.55 Issuing certificate
If the authority decides to approve a mortgagee’s application for an exemption certificate, the authority must issue the certificate, in the approved form, to the mortgagee.
The exemption certificate must—
state the name of the farmer and the mortgagee; and
identify the farm property; and
state—
if the day on which the certificate ends can be worked out under section 56 (2) —the day on which the certificate ends; or
otherwise—that the certificate ends when the farm business debt has been discharged or is no longer secured by the farm mortgage.
The authority must give a copy of the certificate to the farmer.
The authority must comply with this section as soon as practicable after deciding to approve the mortgagee’s application.
(sec.55-ssec.1) If the authority decides to approve a mortgagee’s application for an exemption certificate, the authority must issue the certificate, in the approved form, to the mortgagee.
(sec.55-ssec.2) The exemption certificate must— state the name of the farmer and the mortgagee; and identify the farm property; and state— if the day on which the certificate ends can be worked out under section 56 (2) —the day on which the certificate ends; or otherwise—that the certificate ends when the farm business debt has been discharged or is no longer secured by the farm mortgage.
(sec.55-ssec.3) The authority must give a copy of the certificate to the farmer.
(sec.55-ssec.4) The authority must comply with this section as soon as practicable after deciding to approve the mortgagee’s application.
(a) state the name of the farmer and the mortgagee; and
(b) identify the farm property; and
(c) state— (i) if the day on which the certificate ends can be worked out under section 56 (2) —the day on which the certificate ends; or (ii) otherwise—that the certificate ends when the farm business debt has been discharged or is no longer secured by the farm mortgage.
(i) if the day on which the certificate ends can be worked out under section 56 (2) —the day on which the certificate ends; or
(ii) otherwise—that the certificate ends when the farm business debt has been discharged or is no longer secured by the farm mortgage.
(i) if the day on which the certificate ends can be worked out under section 56 (2) —the day on which the certificate ends; or
(ii) otherwise—that the certificate ends when the farm business debt has been discharged or is no longer secured by the farm mortgage.
sec.56
Duration
sec.56 Duration
An exemption certificate for a farm mortgage takes effect when the authority’s decision to approve the mortgagee’s application for the certificate takes effect under section 77 .
An exemption certificate for a farm mortgage ends on the earlier of the following days—
if the parties entered into a heads of agreement and a contract, mortgage or other document to give effect to the heads of agreement—
the day the farm business debt is discharged; or
the day the farm business debt stops being secured by a farm mortgage over the farm property;
otherwise—the day stated in the certificate.
For subsection (2) (b) , the day stated must be the day that is 3 years after—
if there was satisfactory mediation for the farm business debt—the last day of the mediation; or
if the farmer failed to take part in the mediation in good faith—the last day of the mediation; or
if the farmer gave a notice to the mortgagee or the authority stating the farmer declined mediation—the day the notice was given; or
if the farmer failed to respond to a notice mentioned in section 53 (2) (d) —the day that is 20 business days after the notice was given; or
if the mortgagee gave a notice inviting a request for mediation to the farmer and paragraphs (a) to (d) do not apply—the day that is 3 months after the notice was given; or
otherwise—the day the certificate was issued.
s 56 amd 2024 No. 17 s 192 s ch 1 pt 1
(sec.56-ssec.1) An exemption certificate for a farm mortgage takes effect when the authority’s decision to approve the mortgagee’s application for the certificate takes effect under section 77 .
(sec.56-ssec.2) An exemption certificate for a farm mortgage ends on the earlier of the following days— if the parties entered into a heads of agreement and a contract, mortgage or other document to give effect to the heads of agreement— the day the farm business debt is discharged; or the day the farm business debt stops being secured by a farm mortgage over the farm property; otherwise—the day stated in the certificate.
(sec.56-ssec.3) For subsection (2) (b) , the day stated must be the day that is 3 years after— if there was satisfactory mediation for the farm business debt—the last day of the mediation; or if the farmer failed to take part in the mediation in good faith—the last day of the mediation; or if the farmer gave a notice to the mortgagee or the authority stating the farmer declined mediation—the day the notice was given; or if the farmer failed to respond to a notice mentioned in section 53 (2) (d) —the day that is 20 business days after the notice was given; or if the mortgagee gave a notice inviting a request for mediation to the farmer and paragraphs (a) to (d) do not apply—the day that is 3 months after the notice was given; or otherwise—the day the certificate was issued.
(a) if the parties entered into a heads of agreement and a contract, mortgage or other document to give effect to the heads of agreement— (i) the day the farm business debt is discharged; or (ii) the day the farm business debt stops being secured by a farm mortgage over the farm property;
(i) the day the farm business debt is discharged; or
(ii) the day the farm business debt stops being secured by a farm mortgage over the farm property;
(b) otherwise—the day stated in the certificate.
(i) the day the farm business debt is discharged; or
(ii) the day the farm business debt stops being secured by a farm mortgage over the farm property;
(a) if there was satisfactory mediation for the farm business debt—the last day of the mediation; or
(b) if the farmer failed to take part in the mediation in good faith—the last day of the mediation; or
(c) if the farmer gave a notice to the mortgagee or the authority stating the farmer declined mediation—the day the notice was given; or
(d) if the farmer failed to respond to a notice mentioned in section 53 (2) (d) —the day that is 20 business days after the notice was given; or
(e) if the mortgagee gave a notice inviting a request for mediation to the farmer and paragraphs (a) to (d) do not apply—the day that is 3 months after the notice was given; or
(f) otherwise—the day the certificate was issued.
sec.57
Effect of exemption certificate ending
sec.57 Effect of exemption certificate ending
The ending of an exemption certificate does not affect the following proceedings in a court or tribunal started or taken by the mortgagee while the certificate was in force—
proceedings to recover the farm business debt;
proceedings to exercise or enforce a right under the farm mortgage.
A reference in subsection (1) to proceedings started does not include a reference to—
giving a statutory enforcement notice; or
taking any other action that must be taken by the mortgagee before a right under the farm mortgage can be exercised or enforced.
(sec.57-ssec.1) The ending of an exemption certificate does not affect the following proceedings in a court or tribunal started or taken by the mortgagee while the certificate was in force— proceedings to recover the farm business debt; proceedings to exercise or enforce a right under the farm mortgage.
(sec.57-ssec.2) A reference in subsection (1) to proceedings started does not include a reference to— giving a statutory enforcement notice; or taking any other action that must be taken by the mortgagee before a right under the farm mortgage can be exercised or enforced.
(a) proceedings to recover the farm business debt;
(b) proceedings to exercise or enforce a right under the farm mortgage.
(a) giving a statutory enforcement notice; or
(b) taking any other action that must be taken by the mortgagee before a right under the farm mortgage can be exercised or enforced.
pt.5
Mediators
Mediators
pt.5-div.1
Accreditation
Accreditation
sec.58
Applying for accreditation
sec.58 Applying for accreditation
An individual may apply to the authority to be accredited as a mediator.
The application must be—
in the approved form; and
accompanied by the fee prescribed by regulation.
(sec.58-ssec.1) An individual may apply to the authority to be accredited as a mediator.
(sec.58-ssec.2) The application must be— in the approved form; and accompanied by the fee prescribed by regulation.
(a) in the approved form; and
(b) accompanied by the fee prescribed by regulation.
sec.59
Inquiring about application
sec.59 Inquiring about application
Before deciding the application, the authority—
must consult with—
at least 1 organisation that represents the interests of Queensland farmers; and
at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers; and
may make inquiries to decide whether the applicant is a suitable person to be accredited as a mediator; and
may, by a notice to the applicant, require the applicant to give the authority more information or a document the authority reasonably requires to decide the application within a reasonable period of at least 20 business days stated in the notice.
The authority must give any notice under subsection (1) (c) to the applicant as soon as practicable after the authority receives the application.
The applicant is taken to have withdrawn the application if the applicant does not comply with the notice within the stated period.
The applicant must verify the information or document by statutory declaration if the notice requires.
(sec.59-ssec.1) Before deciding the application, the authority— must consult with— at least 1 organisation that represents the interests of Queensland farmers; and at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers; and may make inquiries to decide whether the applicant is a suitable person to be accredited as a mediator; and may, by a notice to the applicant, require the applicant to give the authority more information or a document the authority reasonably requires to decide the application within a reasonable period of at least 20 business days stated in the notice.
(sec.59-ssec.2) The authority must give any notice under subsection (1) (c) to the applicant as soon as practicable after the authority receives the application.
(sec.59-ssec.3) The applicant is taken to have withdrawn the application if the applicant does not comply with the notice within the stated period.
(sec.59-ssec.4) The applicant must verify the information or document by statutory declaration if the notice requires.
(a) must consult with— (i) at least 1 organisation that represents the interests of Queensland farmers; and (ii) at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers; and
(i) at least 1 organisation that represents the interests of Queensland farmers; and
(ii) at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers; and
(b) may make inquiries to decide whether the applicant is a suitable person to be accredited as a mediator; and
(c) may, by a notice to the applicant, require the applicant to give the authority more information or a document the authority reasonably requires to decide the application within a reasonable period of at least 20 business days stated in the notice.
(i) at least 1 organisation that represents the interests of Queensland farmers; and
(ii) at least 1 organisation that represents the interests of banks or other entities that provide finance to Queensland farmers; and
sec.60
Appropriately qualified and suitable person
sec.60 Appropriately qualified and suitable person
When deciding whether the applicant is appropriately qualified to perform the functions of a mediator, the authority must consider—
whether the applicant is an accredited mediator under an accreditation Act or the national mediator accreditation system; and
the applicant’s knowledge about, and experience in, primary industries, business finance and financial management.
When deciding whether the applicant is a suitable person to be accredited as a mediator, the authority may consider—
whether the applicant—
has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; and
has held accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; and
has a conviction, other than a spent conviction, for an offence that is relevant to the functions of a mediator; and
any other matter the authority considers relevant to the applicant’s ability to perform the functions of a mediator.
The applicant is not a suitable person to be accredited as a mediator if the applicant is—
an insolvent under administration; or
an officer of a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
s 60 amd 2020 No. 3 s 91 ; 2023 No. 23 s 247 sch 1 s 2 (2)
(sec.60-ssec.1) When deciding whether the applicant is appropriately qualified to perform the functions of a mediator, the authority must consider— whether the applicant is an accredited mediator under an accreditation Act or the national mediator accreditation system; and the applicant’s knowledge about, and experience in, primary industries, business finance and financial management.
(sec.60-ssec.2) When deciding whether the applicant is a suitable person to be accredited as a mediator, the authority may consider— whether the applicant— has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; and has held accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; and has a conviction, other than a spent conviction, for an offence that is relevant to the functions of a mediator; and any other matter the authority considers relevant to the applicant’s ability to perform the functions of a mediator.
(sec.60-ssec.3) The applicant is not a suitable person to be accredited as a mediator if the applicant is— an insolvent under administration; or an officer of a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
(a) whether the applicant is an accredited mediator under an accreditation Act or the national mediator accreditation system; and
(b) the applicant’s knowledge about, and experience in, primary industries, business finance and financial management.
(a) whether the applicant— (i) has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; and (ii) has held accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; and (iii) has a conviction, other than a spent conviction, for an offence that is relevant to the functions of a mediator; and
(i) has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; and
(ii) has held accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; and
(iii) has a conviction, other than a spent conviction, for an offence that is relevant to the functions of a mediator; and
(b) any other matter the authority considers relevant to the applicant’s ability to perform the functions of a mediator.
(i) has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; and
(ii) has held accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; and
(iii) has a conviction, other than a spent conviction, for an offence that is relevant to the functions of a mediator; and
(a) an insolvent under administration; or
(b) an officer of a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
sec.61
Deciding application
sec.61 Deciding application
The authority must consider the application and decide to approve or refuse the application.
The authority may approve the application only if the authority is satisfied the applicant is—
appropriately qualified to perform the functions of a mediator; and
a suitable person to be accredited as a mediator.
If the authority decides to approve the application, the authority must issue the applicant with an accreditation document that states—
the applicant is accredited as a mediator under this Act; and
the term of the applicant’s accreditation.
If the authority decides to refuse the application, the authority must give an information notice for the decision to the applicant.
(sec.61-ssec.1) The authority must consider the application and decide to approve or refuse the application.
(sec.61-ssec.2) The authority may approve the application only if the authority is satisfied the applicant is— appropriately qualified to perform the functions of a mediator; and a suitable person to be accredited as a mediator.
(sec.61-ssec.3) If the authority decides to approve the application, the authority must issue the applicant with an accreditation document that states— the applicant is accredited as a mediator under this Act; and the term of the applicant’s accreditation.
(sec.61-ssec.4) If the authority decides to refuse the application, the authority must give an information notice for the decision to the applicant.
(a) appropriately qualified to perform the functions of a mediator; and
(b) a suitable person to be accredited as a mediator.
(a) the applicant is accredited as a mediator under this Act; and
(b) the term of the applicant’s accreditation.
sec.62
Failure to decide application
sec.62 Failure to decide application
If the authority fails to decide the application by the required day, the authority is taken to have decided to refuse the application.
The required day is the day that is 20 business days after the authority receives—
if the authority gave a notice requiring more information or a document under section 59 (1) (c) to the applicant—the information or document; or
otherwise—the application.
If the application is taken to be refused under this section, the applicant is entitled to be given an information notice for the decision by the authority.
(sec.62-ssec.1) If the authority fails to decide the application by the required day, the authority is taken to have decided to refuse the application.
(sec.62-ssec.2) The required day is the day that is 20 business days after the authority receives— if the authority gave a notice requiring more information or a document under section 59 (1) (c) to the applicant—the information or document; or otherwise—the application.
(sec.62-ssec.3) If the application is taken to be refused under this section, the applicant is entitled to be given an information notice for the decision by the authority.
(a) if the authority gave a notice requiring more information or a document under section 59 (1) (c) to the applicant—the information or document; or
(b) otherwise—the application.
sec.63
Term of accreditation
sec.63 Term of accreditation
A person’s accreditation remains in force until—
the term, of not more than 2 years decided by the authority, stated in the person’s accreditation document ends; or
the person gives a notice that states the person intends to stop being an accredited mediator to the authority; or
the accreditation is suspended or cancelled.
(a) the term, of not more than 2 years decided by the authority, stated in the person’s accreditation document ends; or
(b) the person gives a notice that states the person intends to stop being an accredited mediator to the authority; or
(c) the accreditation is suspended or cancelled.
pt.5-div.2
Renewing accreditation
Renewing accreditation
sec.64
Applying for renewal
sec.64 Applying for renewal
A person accredited as a mediator may apply to the authority to renew the person’s accreditation.
The application must be—
made within 40 business days before the term of the accreditation ends; and
made in the approved form; and
accompanied by the fee prescribed by regulation.
(sec.64-ssec.1) A person accredited as a mediator may apply to the authority to renew the person’s accreditation.
(sec.64-ssec.2) The application must be— made within 40 business days before the term of the accreditation ends; and made in the approved form; and accompanied by the fee prescribed by regulation.
(a) made within 40 business days before the term of the accreditation ends; and
(b) made in the approved form; and
(c) accompanied by the fee prescribed by regulation.
sec.65
Inquiring about renewal application
sec.65 Inquiring about renewal application
Before deciding the application, the authority may, by notice to the applicant, require the applicant to give the authority more information or a document the authority reasonably requires to decide the application within a reasonable period of at least 20 business days stated in the notice.
The authority must give any notice to the applicant as soon as practicable after the authority receives the application.
The applicant is taken to have withdrawn the application if the applicant does not comply with the notice within the stated period.
The applicant must verify the information or document by statutory declaration if the notice requires.
(sec.65-ssec.1) Before deciding the application, the authority may, by notice to the applicant, require the applicant to give the authority more information or a document the authority reasonably requires to decide the application within a reasonable period of at least 20 business days stated in the notice.
(sec.65-ssec.2) The authority must give any notice to the applicant as soon as practicable after the authority receives the application.
(sec.65-ssec.3) The applicant is taken to have withdrawn the application if the applicant does not comply with the notice within the stated period.
(sec.65-ssec.4) The applicant must verify the information or document by statutory declaration if the notice requires.
sec.66
Deciding renewal application
sec.66 Deciding renewal application
The authority must consider the application and decide to approve or refuse the application.
When deciding the application, the authority may consider the matters the authority may consider when deciding whether a person applying for accreditation is—
appropriately qualified to perform the functions of a mediator; and
a suitable person to be accredited as a mediator.
If the authority decides to approve the application, the authority must issue the applicant with an accreditation document that states—
the applicant is accredited as a mediator under this Act; and
the term of the applicant’s accreditation.
If the authority decides to refuse the application, the authority must give an information notice for the decision to the applicant.
(sec.66-ssec.1) The authority must consider the application and decide to approve or refuse the application.
(sec.66-ssec.2) When deciding the application, the authority may consider the matters the authority may consider when deciding whether a person applying for accreditation is— appropriately qualified to perform the functions of a mediator; and a suitable person to be accredited as a mediator.
(sec.66-ssec.3) If the authority decides to approve the application, the authority must issue the applicant with an accreditation document that states— the applicant is accredited as a mediator under this Act; and the term of the applicant’s accreditation.
(sec.66-ssec.4) If the authority decides to refuse the application, the authority must give an information notice for the decision to the applicant.
(a) appropriately qualified to perform the functions of a mediator; and
(b) a suitable person to be accredited as a mediator.
(a) the applicant is accredited as a mediator under this Act; and
(b) the term of the applicant’s accreditation.
sec.67
Failure to decide renewal application
sec.67 Failure to decide renewal application
If the authority fails to decide the application by the required day, the authority is taken to have decided to refuse the application.
The required day is the day that is 20 business days after the authority receives—
if the authority gave a notice requiring more information or a document under section 65 (1) to the applicant—the information or document; or
otherwise—the application.
If the application is taken to be refused under this section, the applicant is entitled to be given an information notice for the decision by the authority.
(sec.67-ssec.1) If the authority fails to decide the application by the required day, the authority is taken to have decided to refuse the application.
(sec.67-ssec.2) The required day is the day that is 20 business days after the authority receives— if the authority gave a notice requiring more information or a document under section 65 (1) to the applicant—the information or document; or otherwise—the application.
(sec.67-ssec.3) If the application is taken to be refused under this section, the applicant is entitled to be given an information notice for the decision by the authority.
(a) if the authority gave a notice requiring more information or a document under section 65 (1) to the applicant—the information or document; or
(b) otherwise—the application.
sec.68
Accreditation continues until decision about renewal
sec.68 Accreditation continues until decision about renewal
If a mediator applies to renew the mediator’s accreditation within 40 business days before the term of the mediator’s accreditation ends, the accreditation continues until the application is—
decided or taken to have been decided; or
withdrawn, or taken to have been withdrawn, by the applicant.
However, if the authority decides to refuse the application, or is taken to refuse the application, the accreditation continues until the authority gives an information notice for the decision to the applicant.
(sec.68-ssec.1) If a mediator applies to renew the mediator’s accreditation within 40 business days before the term of the mediator’s accreditation ends, the accreditation continues until the application is— decided or taken to have been decided; or withdrawn, or taken to have been withdrawn, by the applicant.
(sec.68-ssec.2) However, if the authority decides to refuse the application, or is taken to refuse the application, the accreditation continues until the authority gives an information notice for the decision to the applicant.
(a) decided or taken to have been decided; or
(b) withdrawn, or taken to have been withdrawn, by the applicant.
pt.5-div.3
Suspending and cancelling accreditation
Suspending and cancelling accreditation
sec.69
Application of division
sec.69 Application of division
This division applies in relation to a person who is accredited as a mediator under this Act or a corresponding law.
If a person is accredited as a mediator under a corresponding law, a reference in this division to the person’s accreditation is a reference to the person’s accreditation under the corresponding law to the extent the accreditation is recognised under this Act.
The term mediator is defined in schedule 1 to mean a person who is accredited as a mediator under a corresponding law as well as a person who is accredited as a mediator under this part.
(sec.69-ssec.1) This division applies in relation to a person who is accredited as a mediator under this Act or a corresponding law.
(sec.69-ssec.2) If a person is accredited as a mediator under a corresponding law, a reference in this division to the person’s accreditation is a reference to the person’s accreditation under the corresponding law to the extent the accreditation is recognised under this Act. The term mediator is defined in schedule 1 to mean a person who is accredited as a mediator under a corresponding law as well as a person who is accredited as a mediator under this part.
sec.70
Grounds
sec.70 Grounds
Each of the following is a ground for suspending or cancelling a person’s accreditation as a mediator—
the person contravened a provision of this Act relating to the functions of a mediator;
the person contravened the mediation guidelines;
the accreditation was obtained by a mistake or by materially incorrect or misleading information or documents;
the authority becomes aware the person has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system;
the authority becomes aware the person has held an accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system;
the person has committed an offence that is relevant to the functions of a mediator;
the person is not or is no longer a suitable person to be accredited as a mediator.
For subsection (1) (g) , the authority may consider the matters the authority may consider when deciding whether the person is a suitable person to be accredited as a mediator.
See section 60 (2) and (3) for the matters the authority must consider when deciding whether a person is a suitable person to be accredited as a mediator.
(sec.70-ssec.1) Each of the following is a ground for suspending or cancelling a person’s accreditation as a mediator— the person contravened a provision of this Act relating to the functions of a mediator; the person contravened the mediation guidelines; the accreditation was obtained by a mistake or by materially incorrect or misleading information or documents; the authority becomes aware the person has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system; the authority becomes aware the person has held an accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system; the person has committed an offence that is relevant to the functions of a mediator; the person is not or is no longer a suitable person to be accredited as a mediator.
(sec.70-ssec.2) For subsection (1) (g) , the authority may consider the matters the authority may consider when deciding whether the person is a suitable person to be accredited as a mediator. See section 60 (2) and (3) for the matters the authority must consider when deciding whether a person is a suitable person to be accredited as a mediator.
(a) the person contravened a provision of this Act relating to the functions of a mediator;
(b) the person contravened the mediation guidelines;
(c) the accreditation was obtained by a mistake or by materially incorrect or misleading information or documents;
(d) the authority becomes aware the person has been refused accreditation as a mediator under this Act, an accreditation Act or the national mediator accreditation system;
(e) the authority becomes aware the person has held an accreditation as a mediator that was suspended or cancelled under this Act, an accreditation Act or the national mediator accreditation system;
(f) the person has committed an offence that is relevant to the functions of a mediator;
(g) the person is not or is no longer a suitable person to be accredited as a mediator.
sec.71
Show cause notice
sec.71 Show cause notice
If the authority believes a ground exists to suspend or cancel a person’s accreditation (the proposed action ), the authority must give a show cause notice to the person.
The show cause notice must state—
the proposed action; and
the ground for the proposed action; and
an outline of the facts and circumstances forming the basis for the ground; and
if the proposed action is to suspend the accreditation—the proposed suspension period; and
that the person may, within the show cause period, make written representations to the authority to show why the proposed action should not be taken.
The show cause period must end at least 20 business days after the show cause notice is given to the person.
(sec.71-ssec.1) If the authority believes a ground exists to suspend or cancel a person’s accreditation (the proposed action ), the authority must give a show cause notice to the person.
(sec.71-ssec.2) The show cause notice must state— the proposed action; and the ground for the proposed action; and an outline of the facts and circumstances forming the basis for the ground; and if the proposed action is to suspend the accreditation—the proposed suspension period; and that the person may, within the show cause period, make written representations to the authority to show why the proposed action should not be taken.
(sec.71-ssec.3) The show cause period must end at least 20 business days after the show cause notice is given to the person.
(a) the proposed action; and
(b) the ground for the proposed action; and
(c) an outline of the facts and circumstances forming the basis for the ground; and
(d) if the proposed action is to suspend the accreditation—the proposed suspension period; and
(e) that the person may, within the show cause period, make written representations to the authority to show why the proposed action should not be taken.
sec.72
Representations about show cause notice
sec.72 Representations about show cause notice
The person may make written representations about the show cause notice to the authority within the show cause period.
The authority must consider all representations made to the authority within the show cause period.
(sec.72-ssec.1) The person may make written representations about the show cause notice to the authority within the show cause period.
(sec.72-ssec.2) The authority must consider all representations made to the authority within the show cause period.
sec.73
Ending show cause process without further action
sec.73 Ending show cause process without further action
If, after considering the representations made in accordance with the show cause notice, the authority no longer believes a ground exists to suspend or cancel the person’s accreditation, the authority must—
take no further action about the show cause notice; and
give a notice that no further action is to be taken about the show cause notice to the mediator.
(a) take no further action about the show cause notice; and
(b) give a notice that no further action is to be taken about the show cause notice to the mediator.
More sections below
Source text: opening excerpt
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
pt.1 Preliminary
Preliminary
pt.1-div.1 Introduction
Introduction
sec.1 Short title
sec.1 Short title
This Act may be cited as the Farm Business Debt Mediation Act 2017 .
sec.2 Commencement
sec.2 Commencement
This Act, other than part 9 , divisions 2 to 4 , commences on 1 July 2017.
pt.1-div.2 Purpose
Purpose
sec.3 Purpose
sec.3 Purpose
The purpose of this Act is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm business debts.
The purpose is achieved mainly by—
providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and
requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt—
to offer mediation for the farm business debt to the farmer; and
if the farmer asks for the mediation—to take part in the mediation in good faith; and
providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(sec.3-ssec.1) The purpose of this Act is to provide an efficient and equitable way for farmers and mortgagees to resolve matters relating to farm business debts.
(sec.3-ssec.2) The purpose is achieved mainly by— providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt— to offer mediation for the farm business debt to the farmer; and if the farmer asks for the mediation—to take part in the mediation in good faith; and providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(a) providing for mediation as a way for farmers and mortgagees, participating in good faith, to efficiently and equitably resolve matters relating to farm business debts; and
(b) requiring a mortgagee, before taking action to enforce a mortgage securing a farm business debt— (i) to offer mediation for the farm business debt to the farmer; and (ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
(i) to offer mediation for the farm business debt to the farmer; and
(ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
Imposes mutual obligations of disclosure and timetables: mortgagee must provide requested documents at its cost within 30 business days (s 21), the farmer must provide taxation return, assets and liabilities and 12 month cashflow projections at the farmer’s cost within 30 business days (s 22).
Allocates mediation costs: each party pays their own costs and half the mediator’s fee and costs (s 39).
Provides for heads of agreement, a statutory cooling-off period (10 business days default), and the farmer’s right to revoke during cooling-off with limited compensation consequences (s 26-s 31).
Establishes two administrative relief mechanisms administered by the authority: a farmer may apply for an enforcement action suspension certificate where the mortgagee has failed to mediate (s 40-s 47); and a mortgagee may apply for an exemption certificate excusing the obligation to offer mediation in particular grounds (s 48-s 56). Both applications attract show cause procedures and defined decision processes (s 41-s 43, s 50-s 52).
Sets up accreditation, renewal, suspension and cancellation controls for mediators and a publicly maintainable register (s 58-s 76).
Prescribes confidentiality and inadmissibility of mediation communications in most proceedings, with listed exceptions (s 36-s 38).
Prohibits contracting out or waiver of rights conferred by the Act (s 85-s 86).
Contains procedural review pathways including internal review by the chief executive officer and external review by QCAT, with rules on when original decisions take effect (s 77-s 82).
The Act therefore converts a private enforcement timeline into a process regulated by statutory notices, disclosure duties, accredited mediators and administrative certificates. Parties that do not follow the prescribed steps face practical limits on pursuing enforcement (enforcement action in breach has no effect, s 12(2)), potential penalties where specified (for example s 12(1) and s 31(2)), and administrative responses by the authority (s 43, s 52). The Act centralises decision-making about suspension and exemption in an authority with internal review and external tribunal oversight (s 77-s 82).
Main concepts
Farm business debt and farm mortgage, the core definitional pair, are defined by operation: a farm business debt is an amount borrowed to conduct a farming business that is secured by a farm mortgage (s 5). Mediation for a farm business debt is defined as one or more meetings conducted by a mediator to facilitate discussion when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage, with the aim of producing an agreement about matters relating to the farm business debt (s 6). Mediation includes preparatory and follow-up activity (s 6(3)).
Key legal constructs used repeatedly through the Act are:
Notice inviting a request for mediation, in approved form, with minimum content and timing obligations (s 14).
Request for mediation notice, which may be used by a farmer and whose approved form must enable mediator nomination and document requests (s 15).
Good faith participation, an operative legal standard for both mortgagee and farmer, whose failure can trigger administrative remedies (s 3, s 21(7), s 22(4), s 32(1)(c)).
Heads of agreement, a mediated agreement recorded in an approved form during mediation, subject to a cooling-off period and binding while in effect (s 26-s 28A).
Enforcement action suspension certificate, a certificate the authority may issue at a farmer’s application to prohibit enforcement action where the mortgagee has failed to mediate (s 40-s 47).
Exemption certificate, a certificate the authority may issue at a mortgagee’s application to exempt the mortgagee from the offer/participation obligation in prescribed circumstances (s 48-s 56).
Accreditation and regulation of mediators, including a public register and grounds for suspension or cancellation (Part 5, s 58-s 76).
Confidentiality and inadmissibility rules that generally exclude mediation content from evidentiary use, with enumerated exceptions such as a heads of agreement or proceedings for violence or criminal concealment (s 36-s 38).
Operationally important definitions and reference rules direct how the Act applies. Section 8 construes references so that a provision about a farm business debt, farm mortgage, farmer, mortgagee or farm property is to be read consistently as the specific debt, mortgage, party or property that is the subject of the mediation or the Act’s processes. The Act also limits its application where the farmer is insolvent under administration, subject to a creditor petition under the Bankruptcy Act, or, for a corporate farmer, a Chapter 5 body corporate under the Corporations Act (s 11). The Act is not limited to new mortgages; it applies whether the mortgage/debt arose before or after commencement, except where older specified enforcement action or an earlier mediation under the Queensland farm finance strategy has already resolved matters (s 92).
The Act sets minimum timeframes and compulsory content for notices and responses: a mortgagee must allow at least 20 business days for a farmer to request mediation after service of the notice inviting a request (s 14(3)); a mortgagee must respond to a request for mediation by issuing a notice of agreement within 15 business days (s 16(3)); a mortgagee must provide requested documents within 30 business days at the mortgagee’s cost (s 21(3)); a farmer must provide specified documents within 30 business days at the farmer’s cost (s 22(2)). The authority is given decision-making discretion but must follow prescribed procedural safeguards including show cause notices and set show cause periods of at least 20 business days for both farmer and mortgagee in certificate applications (s 41, s 50).
The Act includes enforcement mechanics and sanctions: enforcement action taken in contravention of the Act has no effect (s 12(2)); certain contraventions carry maximum criminal or summary penalties (for example s 12(1) 100 penalty units, s 31(2) 100 penalty units, and s 83 disclosure penalty of 20 penalty units or 6 months imprisonment); corporate executive officers can be taken to have committed an offence where the corporation contravenes particular provisions (s 12(1) and s 89).
Finally, the statutory architecture sets out administrative review and tribunal oversight: internal review by the chief executive officer within defined timeframes (s 80-s 81), and external review by QCAT with stay powers in respect of accreditation matters (s 78, s 82). The Act also requires the authority to publish guidance and keep a register to support implementation (s 34, s 35, s 76).
Who it affects
The Act creates obligations and procedural rights that affect identifiable groups and roles; the Act binds all persons including the State, but expressly disapplies criminal prosecution of the State (s 9). The principal affected parties are:
Farmers who owe a farm business debt secured by a farm mortgage. They gain a statutory right to ask for mediation (s 15), to receive documents from the mortgagee (s 21), to be represented and to have advisors at mediation (s 23-s 24), and to revoke a heads of agreement in a prescribed cooling-off period (s 27-s 29). Farmers must provide specific financial information at their cost, including their most recent taxation return, assets and liabilities and at least 12 months of cash flow projections (s 22). Farmers who are insolvent under administration, subject to certain bankruptcy petitions, or, if corporate, Chapter 5 bodies corporate, are outside the Act’s operation (s 11(1)). Farmers who previously mediated and entered into documents to give effect to a heads of agreement and thereafter default under those implementing documents are also excluded for that debt (s 11(2)).
Mortgagees who hold a farm mortgage. A mortgagee must offer mediation before taking enforcement action where the Act applies, must serve a notice inviting a request for mediation with prescribed content and minimum timing (s 14), and must participate in mediation in good faith if the farmer requests it (s 3, s 16). Mortgagees must provide documents requested under s 21 at their cost within 30 business days. Mortgagees may apply for an exemption certificate to be relieved from the obligation to offer mediation in specified circumstances (s 48-s 56). If a mortgagee takes enforcement action in contravention of s 12, the action has no effect and the mortgagee may face a penalty of up to 100 penalty units; corporate executive officers may be taken to have also committed the offence under s 89.
Mediators and prospective mediators. Individuals who wish to act as mediators under the Act must seek accreditation from the authority, meeting qualification and suitability criteria and subject to suspension and cancellation grounds and procedures (s 58-s 76). The authority must keep a register of mediators and publish particulars such as name, contact details, qualifications, term of accreditation and any suspensions or cancellations (s 76). Mediators have defined functions, must act impartially, must not offer legal advice and are not adjudicators (s 20). Mediators are insulated from civil liability for conduct under the Act, with residual liability to the State in specified gross negligence and bad faith circumstances (s 84).
The authority and its officers. The authority administers approvals, issues or refuses enforcement action suspension and exemption certificates, accredits mediators, makes mediation guidelines and the mediation information package, maintains the mediator register, and conducts internal reviews through the chief executive officer (s 34, s 35, s 58, s 40-s 56, s 76, s 80-s 81). The authority must consult with at least one organisation representing farmers and one representing banks when preparing guidelines and when considering mediator accreditation applications (s 34(3), s 59(1)). Decisions by the authority attract internal review and in some cases external review to QCAT (s 77-s 82).
Third parties with a legal or equitable interest in the farm property or potential liability for the farm business debt. The mediator may invite such relevant persons to attend mediation, but the person is not obliged to accept (s 25A). The Act expressly contemplates including guarantors or persons with interests in the farm property in the mediation if the mediator reasonably considers it appropriate (s 25A(4)).
Courts, tribunals and QCAT. The Act limits admissibility of mediation communications in civil, criminal and administrative proceedings, subject to exceptions (s 36-s 38). The QCAT Act interacts with the Act for review and stay powers in accreditation decisions and for applications to QCAT as provided under that Act (s 78, s 82). The authority’s procedural decisions are subject to internal and external review processes provided in Part 6.
Organisations representing farmers and lenders. The Act requires consultation with at least one organisation representing Queensland farmers and at least one representing banks or lenders in preparing guidelines for mediation and in the mediator accreditation process (s 34(3), s 59(1)). Those organisations therefore are specified consultees for the authority’s guidance and accreditation activities.
The Act also affects corporate governance: where a corporation commits an offence under specified provisions (notably s 12 and s 31(2)), executive officers may be treated as having committed the offence if they authorised, permitted or were knowingly concerned in the conduct, thereby exposing individual officers to liability (s 89). Disclosure obligations are reduced to exceptions permitted by the Act, and unauthorised disclosure attracts criminal penalties (s 83).
Key duties and rights
The Act allocates precise procedural duties, disclosure obligations, rights to initiate administrative relief and rights to confidentiality. The principal duties and rights are:
Mortgagee duties
Do not take enforcement action under a farm mortgage unless the Act does not apply or an exemption certificate is in force (s 12(1)). The maximum penalty for contravention is 100 penalty units, and enforcement action taken in breach has no effect (s 12(1)-(2)).
Serve a notice inviting a request for mediation on the farmer and provide a copy to the authority before taking enforcement action (s 14(1)). The notice must contain specified content, and the time for the farmer to request mediation must be at least 20 business days from service (s 14(2)-(3)). The notice must be accompanied by the mediation information package (s 14(4)).
If a farmer gives a request for mediation, the mortgagee may agree or refuse; if agreeing, the mortgagee must, within 15 business days, prepare and give a notice in the approved form stating agreement to mediate and provide specified contact and service details to the farmer and the authority (s 16(1), s 16(3)-(4)). If the mortgagee refuses, it must give a notice of refusal to the farmer (s 16(6)).
When mediation is underway, comply with document requests from the farmer relating to the debt and mortgage at the mortgagee’s cost within 30 business days, or a longer agreed period (s 21(3)-(4)). Failure to comply or to make reasonable efforts to comply may be treated as failing to participate in good faith (s 21(7)).
Ensure any contract, mortgage or other document executed to give effect to a heads of agreement accurately gives effect to that heads of agreement, subject to a maximum penalty of 100 penalty units (s 31(2)).
Farmer duties and rights
Right to request mediation after a notice inviting a request is given, or in other circumstances where a farm business debt is owed, including when not yet in default (s 15(1)-(2)).
The approved request form must allow the farmer to nominate three mediators for the mortgagee to choose among and to request documents from the mortgagee (s 15(4)).
Obligation to give the mortgagee the farmer’s most recent taxation return prepared for lodgement, assets and liabilities and cash flow projections for at least one year, at the farmer’s cost within 30 business days after the mortgagee’s notice under s 16(3) or a longer agreed period (s 22(1)-(2)). Failure to comply or to make reasonable efforts to comply may be treated as failing to participate in good faith (s 22(4)).
Right to representation at mediation by an agent with the mediator’s approval, and for corporations, representation by an officer or employee, subject to conditions and mediator approval (s 23(1)-(3)). The representative must be authorised in writing to enter into a heads of agreement; if not, the party causing a further meeting must pay costs and mediator fees for the additional meeting (s 23(4)-(5)).
Right to advisor(s) at mediation, including lawyers, and to seek advice during the meeting (s 24).
Right to revoke a heads of agreement during the cooling-off period by serving a signed revocation notice on the mortgagee; upon service the heads of agreement has no effect (s 29). A party may claim reasonable compensation for benefits obtained before revocation, but a mortgagee has no right to compensation merely because of revocation (s 30).
Mediator duties and limits
Mediator’s main function is to mediate impartially to bring about agreement between parties on matters relating to the farm business debt (s 20(1)). Mediators must follow the mediation guidelines; where guidelines are silent, the mediator decides procedure (s 19(3)).
A mediator must not give legal advice, encourage reservation of legal rights, or act as adjudicator or arbitrator (s 20(3)).
Mediators must prepare a heads of agreement in approved form if parties have agreed, ensure copies are provided during mediation and that cooling-off particulars are stated, and prepare a summary at the end of the mediation recording participation and opinion on whether mediation was satisfactory and in good faith (s 26, s 33).
Authority and administrative decision rights and duties
The authority must issue an enforcement action suspension certificate if satisfied specified criteria are met (farmer in default, farmer gave request for mediation, no exemption certificate in force, mortgagee failed to and does not intend to mediate) (s 43(2)). The authority must follow a show cause process before deciding (s 41-s 43).
The authority must decide applications for exemption certificates from mortgagees on prescribed grounds, consider representations and issue or refuse with show cause notice processes (s 48-s 56). If specified grounds exist, the authority may issue an exemption certificate even if the mortgagee did not give a notice inviting a request for mediation (s 52(3)).
The authority must make mediation guidelines after consulting at least one farmer organisation and at least one organisation representing banks or financiers (s 34(1)-(3)).
The authority must maintain the mediator register and make the mediation information package available free of charge (s 35, s 76).
Confidentiality and evidence
Rules of evidence do not apply to mediation meetings (s 36). Mediation meetings are not open to the public (s 37(1)). Matters said or done during mediation and documents prepared for mediation are inadmissible in civil, criminal or administrative proceedings except for enumerated exceptions such as a heads of agreement, documents prepared to give effect to a heads of agreement, summaries of mediation, certain non-public QCAT proceedings and matters involving violence, concealment of ongoing criminal activity, or abuse (s 38).
Review and remedy rights
Internal review by the chief executive officer is available for those given an information notice for an original decision and must be sought within 20 business days (s 80). The chief executive officer must make the internal review decision within specified time limits (s 81).
External review to QCAT is available for accreditation decisions and other reviewable administrative actions as provided under the QCAT Act, with stay powers to maintain effectiveness of review (s 78, s 82).
Prohibitions and penalties
Contractual attempts to exclude, limit or change operation of the Act or to waive a farmer’s rights under the Act are ineffective (s 85-s 86). Unauthorised disclosure of mediation information carries a maximum penalty of 20 penalty units or 6 months imprisonment (s 83).
Penalties and enforcement
The Act provides a mix of invalidity rules, specified summary offence penalties, administrative sanctions and corporate officer liability to enforce compliance. Enforcement mechanics and penalties are as follows.
Invalidity of enforcement action and contractual clauses
Enforcement action taken in contravention of the core prohibition on enforcement while the Act applies or an exemption certificate is not in force has no effect (s 12(2)). This is a substantive invalidity remedy rather than an order for damages or an administrative fine. The effect is to remove legal effectiveness from the mortgagee’s enforcement action conducted in breach of the statutory precondition.
Criminal/summary penalties
A mortgagee who takes enforcement action in contravention of s 12(1) commits an offence with a maximum penalty of 100 penalty units (s 12(1)). Section 31(2) imposes a maximum penalty of 100 penalty units on a mortgagee who fails to ensure a subsequent contract, mortgage or other document gives effect accurately to a heads of agreement. The Act treats offences under these provisions as summary offences subject to time limits for commencing proceedings (s 88).
Disclosure of information obtained in a mediation meeting or in connection with the administration of the Act, except as permitted by s 83, is an offence with a maximum penalty of 20 penalty units or 6 months imprisonment (s 83).
Corporate and executive officer liability
If a corporation commits an offence against a "deemed executive liability provision" (defined in s 89 as s 12(1) or s 31(2)), an executive officer of the corporation may be taken to have also committed the offence if the officer authorised or permitted the conduct or was directly or indirectly knowingly concerned in it (s 89(1)). The executive officer may be proceeded against and convicted whether or not the corporation is proceeded against (s 89(2)). The section does not otherwise limit other criminal liability under the Criminal Code (s 89(3)).
Administrative sanctions, suspension and cancellation
For mediators, the authority has structured grounds and procedures to suspend or cancel accreditation (s 70-s 74). The immediate suspension power for mediators in cases of immediate and serious risk includes issuing a show cause notice plus an information notice; the suspension operates immediately and lasts until the authority cancels it, the show cause notice is finally dealt with, or 30 business days elapse (s 75).
The authority issues enforcement action suspension certificates and exemption certificates that affect whether enforcement may proceed (s 46, s 55). The duration and conditions for certificates are specified: enforcement action suspension certificates end either when mediation ends satisfactorily or otherwise six months after certain events (s 47); exemption certificates take effect on the authority’s decision taking effect and generally end on the earlier of discharge of the debt or a day specified in the certificate, with the maximum stated day being 3 years after various triggering events (s 56).
Procedural enforcement levers
The authority must issue show cause notices with a minimum 20 business day period for representations before deciding on certificate applications and on proposed suspension or cancellation of mediator accreditation (s 41, s 50, s 71). Failure by the authority to decide applications by certain required days leads to deemed refusals under s 45, s 54, s 62 and s 67, which shifts the practical remedy outcome and creates an operational risk for applicants or respondents who rely on an expected decision.
The Act also contains internal review rights and QCAT external review rights for many administrative decisions, and QCAT may stay operation of original decisions in prescribed circumstances (s 77-s 82). For accreditation decisions specifically, QCAT may stay operation to secure the effectiveness of internal review and later review (s 78).
Non-penal enforcement
The Act uses behavioural levers in addition to penalties: a mortgagee’s failure to comply with procedural and disclosure duties may be treated as failure to mediate in good faith, which can supply the grounds for a farmer to obtain an enforcement action suspension certificate (s 21(7), s 44). Conversely, a farmer’s failure to request mediation within prescribed timelines, or to respond to invitations to attend, may be grounds for an exemption certificate allowing the mortgagee to proceed with enforcement (s 53, s 49).
Summary offence timing and evidence
Offences under the Act are summary and subject to statutory time limits for initiating prosecutions, which are either one year after the offence or six months after the offence comes to the complainant’s knowledge but within two years of commission (s 88(2)). Section 88(3) permits a complaint to state a day on which the matter came to the complainant’s knowledge as evidence of that day.
Administrative transparency and consultation requirements
The authority must consult specified stakeholders in preparing mediation guidelines and in assessing mediator applications (s 34(3), s 59(1)). These consultation steps are procedural obligations that affect how guidelines and accreditation decisions are made; they are not cast as criminal sanctions but operate as compliance requirements on the authority.
Together these mechanisms create a mixed enforcement environment: immediate legal invalidity of wrongful enforcement action (s 12(2)), criminal/summary penalties for specified contraventions (s 12(1), s 31(2), s 83), administrative remedies through certificates and accreditation controls (s 40-s 56, s 58-s 76) and review mechanisms allowing internal and tribunal oversight (Part 6). The authority’s decisions are shaped by procedural timelines and show cause processes that a party must engage with to protect or challenge rights under the Act.
How it interacts with other laws
The Act is drafted to operate alongside existing law about mortgages, while taking precedence where inconsistency arises and preserving certain exclusions and interactions. The principal interaction rules and cross-references in the Act are:
Primacy and coexistence
The Act applies in addition to, and does not limit, any other Act or law relating to the enforcement of mortgages (s 10(1)). However, if a provision of this Act is inconsistent with another Act, the provision of this Act prevails to the extent of the inconsistency (s 10(2)). Subsection 10(3) preserves any express statutory provision in another Act that deals with interaction between that Act and this Act.
Excluded insolvency and corporate circumstances
The Act does not apply if the farmer is an insolvent under administration, or is the subject of a creditor petition under the Bankruptcy Act 1966 (Cwlth) or a corresponding law, or if a corporate farmer is a Chapter 5 body corporate under the Corporations Act s 9 (s 11(1)). These carve-outs explicitly tie the Act’s operation to the insolvency-related federal framework and to the Corporations Act regimes, thereby deferring to other statutory enforcement or insolvency processes in those circumstances.
Preservation of other notice requirements
Where another Act requires the mortgagee to give a notice to the farmer before exercising a power or right conferred by that Act or by the farm mortgage, nothing in this Act affects that requirement and a notice given under this Act may include matter required by the other Act without failing to comply with this Act (s 87). This prevents duplication or conflict with other statutory notice regimes.
Interaction with pre-existing mediation/agreements
The Act does not apply where the farmer and mortgagee previously took part in mediation under the Queensland farm finance strategy and entered into a written agreement because of that mediation, or where certain enforcement actions (possession taken, power of sale with contract entered, or judgment obtained) occurred before commencement (s 92). Those historical arrangements are therefore outside the Act’s remedial overlay.
Immunity, liability and other statutory regimes
The Act makes provision for mediator civil liability protection for acts engaged in under the Act, but if civil liability does not attach to a mediator or person acting under the mediator’s direction the State may bear liability, with a right to recover contribution from the mediator only for conduct not in good faith and with gross negligence (s 84). The section cross-references the Public Sector Act 2022 in relation to prescribed persons for protection from civil liability (s 84(6)).
Tribunal and judicial review
Internal review and QCAT review processes are provided and the QCAT Act’s provisions on stays and reviewable decisions apply, with the Act expressly permitting QCAT to stay operation of certain original decisions to secure the effectiveness of internal review and later external review (s 77-s 82). This situates the Act within the existing administrative law review architecture in Queensland, linking its administrative decisions to tribunal oversight.
Accreditation and corresponding laws
A person accredited as a mediator under a corresponding law (a mediator accredited in another State’s corresponding scheme) is recognised to the extent the corresponding accreditation is recognised under the Act, and the Act’s suspension and cancellation provisions apply where appropriate (s 69, s 76(2)). The Act therefore creates scope for cross‑jurisdictional accreditation recognition subject to the Act’s terms.
Other procedural statutes
The Act references the Acts Interpretation Act 1954 in relation to who may deal with internal review applications (s 81(2)-(3)). The Act’s procedural time limits for commencing summary prosecutions are separate but operate within the general criminal procedure and summary offence frameworks.
Fees and regulations
The Governor in Council may make regulations under the Act, including prescribing fees payable under the Act and penalties for contravening regulations (s 91). The Act therefore anticipates subordinate legislative instruments to flesh out administrative details.
In sum, the Act is designed to layer a mediation-first procedural regime onto existing mortgage enforcement law, while excluding bankruptcy and insolvency situations and allowing other statutory notice and enforcement processes to continue where they operate consistently. It also embeds administrative review and tribunal oversight consistent with Queensland administrative law and provides for recognition of corresponding mediator accreditation from other jurisdictions.
Amendment history
The text as provided includes amendment annotations for specific sections. The Act has had amendments inserted in various years according to the internal annotations. The amendments visible in the source should be read as part of the Act’s history to the extent shown. Notable amendment annotations in the provided text include:
Section 8: annotated "s 8 amd 2020 No. 3 s 85". This indicates an amendment to s 8 in 2020 referenced as No. 3 s 85.
Section 11: annotated "s 11 amd 2020 No. 3 s 86 ; 2023 No. 23 s 247 sch 1 s 2 (2)". This indicates s 11 was amended in 2020 and again in 2023 under the items cited.
Section 12: no explicit amendment note shown in the supplied text.
Section 14: annotated "s 14 amd 2024 No. 17 s 131". This indicates an amendment in 2024.
Section 15: annotated "s 15 amd 2020 No. 3 s 87 ; 2024 No. 17 s 192 sch 1 pt 1". Indicates amendments in 2020 and 2024.
Section 16: annotated "s 16 amd 2024 No. 17 s 192 sch 1 pt 1". Amendment in 2024.
Section 25A: annotated "s 25A ins 2020 No. 3 s 88". This indicates s 25A was inserted in 2020.
Section 34: no specific amendment note except the consultation obligations included in the section as shown.
Section 49: annotated "s 49 amd 2020 No. 3 s 89 ; 2024 No. 17 s 192 sch 1 pt 1". Indicates amendments in 2020 and 2024.
Section 53: annotated "s 53 amd 2020 No. 3 s 90 ; 2024 No. 17 s 192 sch 1 pt 1". Indicates amendments in 2020 and 2024.
Section 56: annotated "s 56 amd 2024 No. 17 s 192 sch 1 pt 1". Indicates an amendment in 2024.
Section 60: annotated "s 60 amd 2020 No. 3 s 91 ; 2023 No. 23 s 247 sch 1 s 2 (2)". Indicates amendments in 2020 and 2023.
Section 84: annotated "s 84 amd 2022 No. 34 s 365 sch 3". Indicates amendment in 2022.
Section 90A: annotated "s 90A amd 2024 No. 17 s 132". Section 90A is present and states a statutory review obligation; the annotation indicates a 2024 amendment insertion or alteration.
Other sections display similar "amd" or "ins" notations adjacent to their text in the source, for example s 31, s 52, s 56, s 62, etc., showing that multiple parts of the Act were the subject of later amendment instruments. Where the source shows an amendment reference beside a section, that annotation is the only amendment-history detail available in the provided text; the Act’s text as presented already incorporates those amendments in its current wording.
The Act also contains a transitional provision noting that it applies to farm mortgages whether entered into before or after the commencement unless specific interim matters occurred or previous mediation under the Queensland farm finance strategy resulted in a written agreement (s 92). Section 92 itself is annotated "s 92 amd 2020 No. 3 s 92", indicating amendment activity in 2020.
This listing is necessarily limited to the amendment notations visible within the supplied text. The Act explicitly records several amendment instrument identifiers and dates; users relying on the legislative history should consult the official consolidated statute records or gazette notices for a complete chronological amendment history and full text of amending instruments.
Litigation history
The Act text supplied does not list or name any court or tribunal decisions, cases or judicial interpretations. The statute itself provides internal review mechanisms by the chief executive officer for administrative decisions (s 80-s 81), and external review by QCAT for reviewable internal review decisions, including stay powers as provided under the QCAT Act (s 77-s 82). The Act provides procedures by which affected parties may seek administrative review and tribunal oversight, but the supplied legislative text contains no record of litigation, case law, or judicial determinations under the Act.
Available procedural pathways that can lead to litigation or tribunal proceedings are embedded in the Act:
Internal review by the chief executive officer for original decisions, with prescribed timelines and the capacity for substitution, amendment or confirmation of the original decision (s 80-s 81).
External review through applications to QCAT for persons who applied for internal review of an accreditation decision and who were given a review notice under s 81(1) (s 82). Section 78 gives QCAT power to stay operation of accreditation decisions to secure the effectiveness of internal review and later external review.
The Act contemplates civil or criminal proceedings in which mediation communications would be inadmissible, subject to enumerated exceptions; those exceptions may themselves give rise to litigation about admissibility or scope (s 38).
The Act’s provisions for offences and penalties create the potential for prosecution in the Magistrates Court under Queensland summary offence procedures, subject to the time limits in s 88.
Because the statute text provided contains no case citations, there are no named precedents or judicial constructions to summarise from the source. For practical purposes, practitioners should note the review routes and the limits on admissibility for mediation communications when assessing potential litigation strategies and timing of applications, and should consult up-to-date case law and tribunal decisions outside this text for interpretative developments.
Gotchas
The Act contains numerous timing, formality and procedural traps that materially affect rights and remedies. The following are concrete points to watch, with their statutory source:
Enforcement action in breach has no legal effect, and mortgagees face a penalty
Any enforcement action taken by a mortgagee in contravention of s 12(1) “has no effect” (s 12(2)). That is substantive nullity, not merely a discretionary remedy. Mortgagees also risk a maximum penalty of 100 penalty units for taking prohibited enforcement action (s 12(1)).
Tight notice and response windows that alter legal posture
Mortgagee’s notice inviting request for mediation must give the farmer at least 20 business days to request mediation (s 14(3)). If the farmer does not request mediation by that day, the mortgagee may consider the farmer has declined mediation and may apply for an exemption certificate (s 14(2)(f)).
A mortgagee must respond to a request for mediation within 15 business days by issuing an agreed-to-mediation notice (s 16(3)). If the mortgagee does not respond, or refuses, or is otherwise found to have failed to mediate, the farmer may apply for an enforcement action suspension certificate (s 44, s 40-s 43).
Farmer-document and mortgagee-document exchange timelines are strict: 30 business days to comply with s 21 and s 22 requests unless a longer period is agreed with the mediator (s 21(3), s 22(2)).
Mediator nomination and selection formalities
The approved request for mediation must permit the farmer to nominate three mediators from which the mortgagee may choose (s 15(4)). The mediator must be chosen as prescribed by regulation (s 18(2)). Failure to follow those formal nomination/selection steps may create procedural risks or delays.
Good faith is an operational standard with consequences
Failure by the mortgagee to make reasonable efforts to comply with document requests, or to take part in mediation in good faith, can be treated as failure to mediate and generate grounds for an enforcement action suspension certificate (s 21(7), s 44). Conversely, a mortgagee not agreeing to reduce or forgive a debt is not, in itself, evidence of a lack of good faith (s 49(2)).
Cooling-off and revocation rights are asymmetric
A heads of agreement is subject to a cooling-off period by default (s 27(1)). A farmer can revoke during the cooling-off period by serving a signed notice; upon service the heads of agreement has no effect (s 29). A mortgagee has limited compensation rights when the farmer revokes; the mortgagee has no right to compensation merely because of the revocation (s 30(3)). Parties must therefore carefully document any benefits received before revocation.
Costs allocation may be surprising
Each party pays their own costs and half of the mediator’s fee and costs (s 39). However, if a party sends an unauthorised representative that later lacks authority to bind, that party must pay the other party’s costs and the mediator’s fees for the additional meeting (s 23(5)).
Exemption and suspension certificates carry different durations and effects
Enforcement action suspension certificates issued to farmers are short term and typically expire on the earlier of the last day of satisfactory mediation or six months after triggering events (s 47). Exemption certificates issued to mortgagees may last up to three years according to prescribed calculations and can take effect even where the mortgagee did not give a notice inviting mediation if certain grounds exist (s 52(3), s 56). Mortgagees should be careful when relying on an exemption certificate; the certificate’s conditions and duration depend on precise factual triggers set out in s 56.
Confidentiality exceptions
Mediation communications are generally inadmissible (s 38(1)), but this does not cover heads of agreement, documents to give effect to heads of agreement, summaries prepared under s 33, non-public QCAT proceedings or matters involving violence, ongoing criminal activity or abuse (s 38(2)). Parties relying on confidentiality should ensure mediated agreements and any documents intended for later enforcement are properly captured as heads of agreement or implemented documents.
Contracting out and waivers are ineffective
Any contract that purports to limit or exclude the operation of the Act has no effect to that extent (s 85). A waiver of a farmer’s rights under the Act has no effect (s 86). Parties cannot contract away the Act’s statutory procedural protections.
Authority decision timetables and deemed refusals
The Act contains several provisions where the authority’s failure to decide by a prescribed day results in the application being taken to be refused (s 45, s 54, s 62, s 67). Parties relying on administrative decisions should track these deadlines; deemed refusals can abruptly change available remedies and review paths.
Executive officer liability
Where a corporate mortgagee contravenes a deemed executive liability provision, an executive officer may be treated as having committed the offence if they authorised or were knowingly concerned in the conduct (s 89). This personal exposure can influence governance decisions.
Mediator accreditation and immediate suspension powers
The authority may immediately suspend a mediator’s accreditation where there is an immediate and serious risk that the mediator will compromise the success of mediation, for example through partiality or undertaking impermissible functions (s 75). Mediators and parties should be aware of the authority’s quick-power to suspend and the short default 30 business day endpoint.
Publication and recordkeeping obligations
The authority must publish mediation guidelines and the register of mediators, and the mediation information package must be provided free of charge (s 34, s 35, s 76). Parties should archive the information package and the approved forms used, because failing to use approved forms where required may have procedural consequences.
These are concrete procedural and substantive traps that materially affect strategic choices by mortgagees, farmers, mediators and administrators. Each trap is tied to statute sections and can change enforcement options, timing and costs.
How to comply
This section sets out practical steps and checklists for key participants based on the Act’s requirements and timing rules. Citations to the Act are supplied for each step.
For mortgagees (pre-enforcement)
Confirm applicability of the Act. Check whether the loan is a farm business debt as defined (borrowed to conduct a farming business and secured by a farm mortgage) and whether exclusions apply (insolvency under administration, Bankruptcy Act petition, Chapter 5 corporate status, or previous mediation leading to implementing documents for this debt) (s 5, s 11, s 92).
Do not take enforcement action until compliance steps completed. Enforcement action while the Act applies and no exemption certificate is in force is prohibited and void (s 12(1)-(2)).
Prepare and serve the notice inviting a request for mediation in the approved form, with required content and timing. Ensure the notice identifies parties and property, states proposed enforcement action, states how and by when (minimum 20 business days) the farmer must ask for mediation, and accompanies a copy of the mediation information package (s 14(2)-(4), s 35).
Keep documented proof of service and contemporaneous copies of the mediation information package and the approved form used. The authority must also receive a copy of the notice (s 14(1)(b)).
If a farmer requests mediation, respond within 15 business days. If agreeing, prepare the approved form notice of agreement to mediate and give that to the farmer and the authority within 15 business days; if refusing, give the farmer a notice of refusal (s 16(3), s 16(6)).
If agreeing to mediate, be ready to nominate or accept a mediator as prescribed by regulation and to engage with an accredited mediator. Follow the mediator’s arrangements per mediation guidelines (s 18-s 19).
When asked to provide documents under s 21, comply at the mortgagee’s cost within 30 business days or negotiate a longer period with the farmer and mediator. Provide clear images or written versions for electronic documents (s 21(3)-(5)).
Participate in mediation in good faith. Document steps taken to facilitate mediation because failure to make reasonable efforts can be treated as failing to mediate (s 21(7), s 44).
Ensure any implementing documents precisely give effect to a heads of agreement. Section 31 requires the mortgagee to ensure contracts and mortgages give full and accurate effect to heads of agreement; failure is an offence with a 100 penalty unit maximum (s 31(2)).
If the mortgagee believes a ground for exemption exists (for example prior satisfactory mediation or the farmer has failed to mediate), prepare an application in the approved form and pay any prescribed fee, serve required notices to the farmer and comply with show cause procedures (s 48-s 52).
For farmers (requesting and participating in mediation)
Check eligibility. If insolvent under administration or subject to specified creditor proceedings, the Act may not apply (s 11).
If a notice inviting a request for mediation is served, use the approved or plain-form request for mediation to ask for mediation within the timeline stated in the notice (minimum 20 business days) or at any other time a farm business debt exists (s 14, s 15).
Use the approved request form to nominate three mediators from which the mortgagee may choose and to request documents relevant to the debt and mortgage (s 15(4)). Keep copies of nominations and requests.
If documents are requested from the mortgagee, expect provision within 30 business days; if not delivered, make a record and raise it with the mediator because failure to provide documents may be evidence of failure to mediate in good faith (s 21(3), s 21(7)).
Prepare to provide the farmer’s most recent taxation return prepared for lodgement, assets and liabilities and cashflow projections for at least one year within 30 business days at the farmer’s cost. If the farmer cannot meet the timeline for valid reasons, record circumstances and negotiate a longer period in consultation with the mediator (s 22(1)-(3), s 53(3) for special circumstances).
Secure written authority for any agent representing the farmer to enter into a heads of agreement for the farmer. Ensure representatives are approved by the mediator (s 23(4)).
When a heads of agreement is prepared and signed, note the cooling-off period and the farmer’s right to revoke during it. Arrange for the farmer to obtain legal advice if waiving or shortening the cooling-off period is contemplated (s 26-s 27).
If the mortgagee refuses mediation or fails to mediate as defined by s 44, prepare an application for an enforcement action suspension certificate in the approved form with supporting facts and the prescribed fee (s 40).
For mediators
Ensure accreditation and term are current and that the register entry is up to date (s 58-s 63, s 76).
Follow the mediation guidelines; where they are silent the mediator decides procedure (s 19(3), s 34).
Maintain impartiality, do not give legal advice, and do not act as an arbitrator or adjudicator (s 20(1)-(3)).
Prepare heads of agreement and mediation summaries in the approved forms and ensure distribution and signatures comply with the Act (s 26, s 33). Note the cooling-off provisions and the requirement to record mediation steps and whether parties participated in good faith; these summaries accompany any applications to the authority (s 33(1)-(5)).
Keep records required by the mediation guidelines and be able to respond to any show cause process should the authority suspect conduct warranting suspension or cancellation (s 34(2), s 71-s 75).
For the authority and administrators
Publish and maintain the mediation information package and mediation guidelines after consulting at least one organisation representing Queensland farmers and at least one representing banks or financiers (s 34, s 35).
Keep and publish a register of mediators, including qualifications and any suspensions or cancellations (s 76).
Process and decide applications for enforcement action suspension certificates and exemption certificates with statutory show cause notices and minimum 20 business day response periods, and provide information notices of decisions (s 41-s 43, s 50-s 52). Ensure internal review timelines and QCAT interactions are understood and managed (s 77-s 82).
When accrediting mediators, consider the applicant’s qualifications and primary industry and finance experience, and consult the prescribed organisations (s 60-s 61).
Cross-cutting compliance tips
Use approved forms and keep dated proof of service for all notices. Several duties, rights and disqualifications
(c) providing that action that is taken to enforce a mortgage securing a farm business debt in contravention of this Act has no effect.
(i) to offer mediation for the farm business debt to the farmer; and
(ii) if the farmer asks for the mediation—to take part in the mediation in good faith; and
pt.1-div.3 Interpretation
Interpretation
sec.4 Definitions
sec.4 Definitions
The dictionary in schedule 1 defines particular words used in this Act.
sec.5 Meaning of farm business debt
sec.5 Meaning of farm business debt
A farm business debt is an amount owed by a farmer that—
was borrowed for the purpose of conducting a farming business; and
is secured by a farm mortgage.
(a) was borrowed for the purpose of conducting a farming business; and
(b) is secured by a farm mortgage.
sec.6 Meaning of mediation for a farm business debt
sec.6 Meaning of mediation for a farm business debt
Mediation , for a farm business debt, is 1 or more meetings conducted by a mediator to facilitate discussion between the farmer and the mortgagee—
when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and
that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt.
the way for the farmer to remedy a default under the farm mortgage
how the farm mortgage may be enforced or discharged
Each meeting mentioned in subsection (1) is a mediation meeting .
A reference in this Act to mediation includes—
an activity for promoting discussion and bringing about agreement about a matter during mediation; and
anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
(sec.6-ssec.1) Mediation , for a farm business debt, is 1 or more meetings conducted by a mediator to facilitate discussion between the farmer and the mortgagee— when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt. the way for the farmer to remedy a default under the farm mortgage how the farm mortgage may be enforced or discharged
(sec.6-ssec.2) Each meeting mentioned in subsection (1) is a mediation meeting .
(sec.6-ssec.3) A reference in this Act to mediation includes— an activity for promoting discussion and bringing about agreement about a matter during mediation; and anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
(a) when the farmer has defaulted, or is at risk of defaulting, under the farm mortgage; and
(b) that aims to bring about an agreement between the farmer and the mortgagee about 1 or more matters relating to the farm business debt. Examples of matters that may be agreed— • the way for the farmer to remedy a default under the farm mortgage • how the farm mortgage may be enforced or discharged
• the way for the farmer to remedy a default under the farm mortgage
• how the farm mortgage may be enforced or discharged
• the way for the farmer to remedy a default under the farm mortgage
• how the farm mortgage may be enforced or discharged
(a) an activity for promoting discussion and bringing about agreement about a matter during mediation; and
(b) anything said or done to prepare for a mediation meeting or to follow up a matter discussed or agreed at a mediation meeting.
sec.7 When mediation has been satisfactory
sec.7 When mediation has been satisfactory
Mediation for a farm business debt has been satisfactory if—
as a result of the mediation, the farmer and the mortgagee have entered into a heads of agreement; or
the mediation has proceeded as far as it reasonably can with the farmer and the mortgagee having participated in good faith, but they have not entered into a heads of agreement; or
the mediation is of a type, or a class, or meets criteria prescribed by regulation for this paragraph.
(a) as a result of the mediation, the farmer and the mortgagee have entered into a heads of agreement; or
(b) the mediation has proceeded as far as it reasonably can with the farmer and the mortgagee having participated in good faith, but they have not entered into a heads of agreement; or
(c) the mediation is of a type, or a class, or meets criteria prescribed by regulation for this paragraph.
sec.8 Particular references
sec.8 Particular references
In a provision about a farm business debt or a farm mortgage—
a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and
a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and
a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and
a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and
a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
In a provision about a farmer—
a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and
a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and
a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and
a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
s 8 amd 2020 No. 3 s 85
(sec.8-ssec.1) In a provision about a farm business debt or a farm mortgage— a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
(sec.8-ssec.2) In a provision about a farmer— a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
(a) a reference to the farm mortgage is a reference to the farm mortgage that secures the farm business debt; and
(b) a reference to the farm business debt is a reference to the farm business debt that is secured by the farm mortgage; and
(c) a reference to the farmer is a reference to the farmer who owes the farm business debt that is secured by the farm mortgage; and
(d) a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures the farm business debt; and
(e) a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure the farm business debt.
(a) a reference to the farm business debt is a reference to a farm business debt owed by the farmer; and
(b) a reference to the farm mortgage is a reference to the farm mortgage that secures a farm business debt owed by the farmer; and
(c) a reference to the mortgagee is a reference to the mortgagee under the farm mortgage that secures a farm business debt owed by the farmer; and
(d) a reference to the farm property is a reference to the farm property that is subject to the farm mortgage to secure a farm business debt.
pt.1-div.4 Operation of Act
Operation of Act
sec.9 Act binds all persons
sec.9 Act binds all persons
This Act binds all persons, including the State.
However, nothing in this Act makes the State liable to be prosecuted for an offence.
(sec.9-ssec.1) This Act binds all persons, including the State.
(sec.9-ssec.2) However, nothing in this Act makes the State liable to be prosecuted for an offence.
sec.10 Relationship with other Acts or laws
sec.10 Relationship with other Acts or laws
This Act applies in addition to, and does not limit, any other Act or law relating to the enforcement of mortgages.
However, if a provision of this Act is inconsistent with another Act, the provision prevails over the other Act to the extent of the inconsistency.
Subsection (2) does not affect a provision of this Act or another Act that expressly deals with the interaction between this Act, the other Act or another law.
(sec.10-ssec.1) This Act applies in addition to, and does not limit, any other Act or law relating to the enforcement of mortgages.
(sec.10-ssec.2) However, if a provision of this Act is inconsistent with another Act, the provision prevails over the other Act to the extent of the inconsistency.
(sec.10-ssec.3) Subsection (2) does not affect a provision of this Act or another Act that expressly deals with the interaction between this Act, the other Act or another law.
sec.11 Application of Act
sec.11 Application of Act
This Act does not apply in relation to a farmer if—
the farmer is an insolvent under administration; or
the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or
for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
Also, this Act does not apply in relation to a farmer for a particular farm business debt if—
the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and
the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and
the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
s 11 amd 2020 No. 3 s 86 ; 2023 No. 23 s 247 sch 1 s 2 (2)
(sec.11-ssec.1) This Act does not apply in relation to a farmer if— the farmer is an insolvent under administration; or the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
(sec.11-ssec.2) Also, this Act does not apply in relation to a farmer for a particular farm business debt if— the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
(a) the farmer is an insolvent under administration; or
(b) the farmer is the subject of a petition presented by a creditor, other than the mortgagee, under the Bankruptcy Act 1966 (Cwlth) or a corresponding law of another jurisdiction, including a jurisdiction outside Australia; or
(c) for a farmer that is a corporation—the farmer is a Chapter 5 body corporate within the meaning of the Corporations Act , section 9 .
(a) the farmer previously defaulted under the farm mortgage for the debt and, because of the farmer’s default, the farmer and the mortgagee took part in mediation for the debt under this Act; and
(b) the farmer and the mortgagee entered into a contract, mortgage or other document to give effect to a heads of agreement entered into as a result of the mediation; and
(c) the farmer has defaulted under the farm mortgage and the default relates to the contract, mortgage or document.
pt.2 Enforcement action by mortgagee
Enforcement action by mortgagee
sec.12 Restriction on mortgagee enforcement action
sec.12 Restriction on mortgagee enforcement action
A mortgagee must not take enforcement action under a farm mortgage unless—
this Act does not apply in relation to the farmer or the farm mortgage; or
an exemption certificate is in force for the farm mortgage.
Maximum penalty—100 penalty units.
If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 89 , to have also committed the offence.
Enfor
This is an opening excerpt, not the complete document.