Procedural formalities: many of the Act’s mechanical effects depend on using an “approved form” (s 3 definition; s 8(2)(b); s 9(2); s 10(2); s 13(2); s 15(4)). The Small Business Commission approves forms (s 20(1)(da)). Failure to use the approved form for notices, requests or applications risks invalidating the procedural step and may expose the party to the other side seeking a prohibition or exemption certificate, or asserting non‑compliance.
Timing traps: the creditor’s notice under s 8 triggers a 21‑day window for the farmer to request mediation (s 8(2)(a)(iii); s 9(3)). If the farmer does not respond within that 21 days, the creditor may apply for an exemption certificate (s 15 note and s 18(d)). But s 7A now requires an exemption certificate to be in force before enforcement action may be taken (s 7A(1)), which means creditors cannot simply proceed after giving notice and waiting 21 days unless they have obtained the certificate. Exemption certificates may last for different periods depending on which subsection of s 18 applies; commonly they run for three years from various trigger dates, which can materially delay enforcement rights (s 18).
Nullity risk: enforcement action taken without compliance is void (s 6), not merely voidable. A creditor that takes possession or otherwise enforces in breach of the Act risks completely invalidating the enforcement step, which has practical consequences including potential reversal of possession and costs exposure.
Certificate durations and continuing proceedings: exemption certificates remain in force for periods calculated under s 18; the expiry of an exemption certificate does not affect proceedings for recovery of a farm debt commenced while the certificate was in force, and those proceedings may be continued and concluded as if the certificate were still in force (s 16(6)). Creditors must therefore be careful to preserve right steps and timing once a certificate is obtained and to understand that the certificate does not necessarily revive enforcement rights beyond its term.
Good faith and evidentiary burden: the Act requires parties to “attempt to mediate in good faith” (s 15(1)(c)(iii) and s 16(2)(c)(iii)). What amounts to “good faith” is not exhaustively defined in the text, so parties face uncertainty and factual contest. The SBC may consider mediator reports (s 16(4)) in determining satisfactory mediation, so preserving documentary evidence of efforts, communications and mediator engagement is important.
Refusal presumptions and justifications: s 19 sets out circumstances that constitute presumptions of refusal to mediate. For farmers, failing to participate in good faith or failing to respond within 21 days are presumptive refusals (s 19(1)); for creditors, failing to participate in good faith or indicating in writing they do not wish to mediate are presumptions of refusal (s 19(2)). However, the SBC may refuse to issue certificates if it is satisfied a party’s failure or refusal is justified and the party intends to mediate within a reasonable period (s 14(2), s 16(2A)). Parties must be prepared to explain and document the justification for delays or refusals.
Confidentiality exceptions: mediation evidence is generally inadmissible (s 26(2)), but there are exceptions for binding instruments executed as a result of mediation and the mediator’s report (s 26(3)). The mediator’s report is admissible for the SBC’s use in issuing certificates (s 16(4)), which creates a narrow channel where mediation content influences administrative outcomes despite general confidentiality.
Mediator limitations: mediators must not give legal advice or help establish or reserve legal rights (s 21(2)). Parties expecting free legal input through mediation should not rely on mediators for legal strategy; legal practitioners may attend (s 23(3)(a)), and the SBC may permit other representatives (s 23(3)(b)), but mediators cannot perform advisory or adjudicative roles.
Fee cap and session charging: the SBC can fix a fee not exceeding 50 fee units per mediation session, and each party must pay the fee before a session (s 24). If the SBC has not fixed a fee, costs are determined and shared or split equally (s 25). Parties should budget for potentially significant aggregate mediation costs across multiple sessions.
Contracting‑out and waiver void: any contractual provision attempting to avoid, modify or restrict the operation of the Act, or to indemnify a creditor for losses or liabilities arising under the Act, is void (s 29(1)-(2)). Waiver of rights under the Act is also void (s 30). Parties cannot contractually opt out.
Service and receipt technicalities: the Act specifies modes for giving notices and when notices are taken to be given (s 32-33). Electronic communications are governed by the Electronic Transactions (Victoria) Act 2000 as incorporated by s 33(c). Mistakes in service method or timing can affect statutory deadlines.
Overlap with other regimes: the Act does not apply where bankruptcy or external administration applies (s 5(2)). Additionally, certain PPSA security interests and lessor interests are excluded from the definition of farm mortgage (s 3). Mischaracterising security or misapplying the Act to excluded circumstances may lead to invalid reliance on its protections.
Corporate officer liability: bodies corporate may be subject to offence proceedings if an officer knowingly authorised or permitted a contravention (s 34). Directors and managers should be alert to compliance risk.
Transitional quirks: the 2022 transitional provisions preserve the pre‑amendment regime for certain matters started prior to the Agriculture Legislation Amendment Act 2022 commencement day, including forms approved under the Secretary being taken as approved forms until the SBC approves replacements (s 38). Practitioners handling matters across the amendment date must identify which regime applies.