1Farm Debt Mediation Act 2011

Version No. 004 **Farm Debt Mediation Act 2011** **No. 42 of 2011** Version incorporating amendments as at 31 October 2022 **table of provisions** *Section Page* Part 1—Preliminary 1 1 Purpose 1 2 Commencement 1 3 Definitions 1 4 Meaning of *satisfactory mediation* 6 5 Application of Act 6 6 Enforcement action in contravention of Act void 7 7 Relationship with other Acts 7 Part 2—Enforcement action and availability of mediation 8 Division 1AA—Prohibition on enforcement action 8 7A Exemption certificate required for enforcement action 8 Division 1—Availability of mediation 9 8 Notice of intention to take enforcement action and availability of mediation 9 9 Farmer may request mediation 9 10 Creditor may agree to or refuse mediation 10 Division 2—Prohibition certificate 11 13 Application by farmer for issue of prohibition certificate 11 14 Issue of prohibition certificate 12 Division 3—Exemption certificate 13 15 Application by creditor for issue of exemption certificate 13 16 Issue of exemption certificate 15 17 Creditor may satisfactorily mediate without forgiving or reducing farm debt 17 18 Calculation of period of exemption certificate 17 Division 4—General 18 19 When is a farmer or creditor presumed to have refused to mediate? 18 Part 3—The Small Business Commission and mediation 20 Division 1—The Small Business Commission and mediators 20 20 Functions of the Small Business Commission 20 21 Functions of mediators 21 Division 2—The mediation process 22 22 Small Business Commission to arrange mediation 22 23 Conduct of mediation 22 24 Mediation session fee 23 25 Costs of mediation 24 26 Confidentiality of mediation 24 27 Disclosure of information 24 Part 4—General 26 28 Resulting agreement to reflect agreement reached by parties at mediation 26 29 Contracting out prohibited 26 30 Waiver of rights void 26 31 Notices by mortgagee 26 32 Manner of giving notices 27 33 Date notice or other document is given 28 34 Offences by bodies corporate 29 35 Commencement of criminal proceedings 29 36 Regulations 29 37 Transitional provision 30 38 Transitional provisions—Agriculture Legislation Amendment Act 2022 30 ═══════════════ Endnotes 33 1 General information 33 2 Table of Amendments 35 3 Explanatory details 36 **Version No.** **004** **Farm Debt Mediation Act 2011** **No. 42 of 2011** Version incorporating amendments as at 31 October 2022 **The Parliament of Victoria enacts:** Part 1—Preliminary 1 Purpose The purpose of this Act is to provide for the efficient and equitable resolution of farm debt disputes by requiring a creditor to provide a farmer with the option to mediate before taking possession of property or other enforcement action under a farm mortgage. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day to be proclaimed. (2) If this Act does not come into operation before 1 July 2012, it comes into operation on that day. 3 Definitions In this Act— S. 3 def. of *approved form* inserted by No. 22/2022 s. 89(a). ***approved form*** means a form approved by the Small Business Commission; ***commencement day*** means the day on which this Act comes into operation; ***creditor*** means a person to whom a farm debt is for the time being owed by a farmer; ***default***, in relation to a farm mortgage, means failure to perform an obligation that, under the terms of the mortgage, is a ground for enforcement action; **Examples** 1 Failure to pay the principal, interest or other money the payment of which is secured by a farm mortgage. 2 Failure to keep the property subject to the farm mortgage insured. 3 Failure to submit financial statements required by the creditor. S. 3 def. of *Department* amended by No. 70/2013 s. 4(Sch. 2 item 17), repealed by No. 22/2022 s. 89(b). * * * * * ***enforcement action***, in relation to a farm mortgage, means taking possession of property under the mortgage or any other action to enforce the mortgage, including the giving of any statutory enforcement notice, or the continuation of any action to that end already commenced, but does not include— (a) the completion of the sale of property held under the mortgage in respect of which contracts were exchanged before the commencement day; or (b) the enforcement of a judgment that was obtained before the commencement day; ***exemption certificate*** means a certificate issued under section 16 in respect of a farm mortgage; ***farm*** means land on which a farmer engages in a farming operation; ***farm debt*** means a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage; ***farm machinery*** means any of the following goods acquired for the purposes of a farming operation— (a) a harvester, binder, tractor, plough or other agricultural implement; (b) any other goods of a class commonly used for the purposes of a farming operation that are prescribed as farm machinery; ***farm mortgage*** includes any interest in, or power over, any farm property securing obligations of the farmer whether as a debtor or guarantor, including any interest in, or power arising from, a hire purchase agreement relating to farm machinery, but does not include— (a) any stock mortgage or any crop or wool lien; or (b) the interest of the lessor of any farm machinery that is leased; or (c) a security interest, within the meaning of section 12 of the Personal Property Securities Act 2009 of the Commonwealth, in stock, crops or wool; ***farm property*** means— (a) a farm or part of a farm; or (b) farm machinery used by a farmer in connection with a farming operation; or (c) a water share within the meaning of the **Water Act 1989** issued to a farmer for the purposes of a farming operation; ***farmer*** means a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation and includes a person who owns land cultivated under a share-farming agreement and the personal representatives of a deceased farmer; S. 3 def. of *farming operation* amended by No. 22/2022 s. 89(c). ***farming operation*** means any of the following activities undertaken for commercial gain— (a) agricultural, pastoral, horticultural or apicultural activities; (b) poultry farming, dairy farming or any business that consists of the cultivation of soils, the gathering of crops or the rearing of livestock; (ba) aquaculture; (bb) forestry and timber production activities including the establishment, growing, maintenance and harvesting of forests; (c) any prescribed activities; ***function*** includes a power, authority or duty; S. 3 def. of *hire purchase agreement* substituted by No. 22/2022 s. 89(d). ***hire purchase agreement*** means a letting of goods with an option to purchase or an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include any agreement by which the property in the goods comprised in the agreement passes at the time of the agreement or on or at any time before the delivery of the goods; S. 3 def. of *mediator* amended by No. 16/2017 s. 53(a). ***mediator*** means a person contracted by the Small Business Commission under section 20 to mediate farm debt disputes between creditors and farmers under this Act; ***prohibition certificate*** means a certificate issued under section 14 in respect of a farm mortgage; S. 3 def. of *request for mediation* inserted by No. 22/2022 s. 89(a). ***request for mediation*** means a notice given by a farmer under section 9(1)(a) or (b); ***satisfactory mediation*** has the meaning given by section 4; S. 3 def. of *Secretary* repealed by No. 22/2022 s. 89(e). * * * * * S. 3 def. of *Small Business Commission* inserted by No. 16/2017 s. 53(c). ***Small Business Commission*** means the Small Business Commission established under section 4 of the **Small Business Commission Act 2017**; S. 3 def. of *Small Business Commis-sioner* repealed by No. 16/2017 s. 53(b). ** * * * ** ***statutory enforcement notice*** means— (a) a notice under section 76(1) of the **Transfer of Land Act 1958**; (b) a notice under clause 5 of Schedule 12A to the **Water Act 1989**; (c) any prescribed notice given under an Act. 4 Meaning of *satisfactory mediation* In this Act, ***satisfactory mediation*** means any of the following— (a) a mediation that has achieved a resolution of a farm debt dispute; (b) a mediation that has proceeded as far as it reasonably can in an attempt to achieve resolution of a farm debt dispute but has failed to resolve the dispute; (c) a prescribed mediation or a mediation belonging to a prescribed class of mediations. 5 Application of Act (1) This Act applies to creditors only in respect of farm debts. (2) This Act does not apply to— (a) a farmer whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966 of the Commonwealth; or (b) a farmer whose property is the subject of a bankruptcy petition presented by any person; or (c) a farmer, being a corporation, that is an externally-administered corporation within the meaning of the Corporations Act. 6 Enforcement action in contravention of Act void Enforcement action taken by a creditor to whom this Act applies otherwise than in compliance with this Act is void. 7 Relationship with other Acts (1) Nothing in this Act affects the operation of the Banking Act 1959 of the Commonwealth and, in particular, the duty of the Reserve Bank under Division 2 of Part II of that Act. (2) Nothing in this Act affects the operation of the **Credit Act 1984**, the National Consumer Credit Protection Act 2009 of the Commonwealth, the **Limitation of Actions Act 1958** and the Personal Property Securities Act 2009 of the Commonwealth. Pt 2 (Heading) amended by No. 22/2022 s. 90. Part 2—Enforcement action and availability of mediation Pt 2 Div. 1AA (Heading and s. 7A) inserted by No. 22/2022 s. 91. Division 1AA—Prohibition on enforcement action S. 7A inserted by No. 22/2022 s. 91. 7A Exemption certificate required for enforcement action (1) A creditor must not take enforcement action in relation to a farm mortgage unless an exemption certificate issued to the creditor is in force in respect of the farm mortgage. (2) This section does not invalidate any statutory enforcement notice or other process given, served or executed in order to fulfil a condition precedent to the taking of any enforcement action, but operates to prohibit the taking of the action concerned and the enforcement by a court or tribunal of any such notice or process. (3) Subsection (2) does not affect any proceedings authorised under section 16(6) to be continued or concluded after the expiry of an exemption certificate. (4) If a creditor does not take enforcement action before an exemption certificate expires, the creditor must not take enforcement action in relation to the farm mortgage until the creditor gives notice or further notice under section 8 and obtains a new exemption certificate. Division 1—Availability of mediation S. 8 substituted by No. 22/2022 s. 92. 8 Notice of intention to take enforcement action and availability of mediation (1) A creditor who intends to take enforcement action against a farmer in relation to a farm mortgage must give written notice to the farmer in accordance with subsection (2). (2) The notice— (a) must state that— (i) the creditor intends to take enforcement action under the farm mortgage; and (ii) mediation between the farmer and the creditor is available; and (iii) the farmer may respond to the notice within 21 days by requesting mediation; and (iv) failure of the farmer to respond within 21 days may constitute grounds for the issue of an exemption certificate to allow the creditor to proceed with the enforcement action; and (b) must be in the approved form. (3) This section does not apply to a creditor if an exemption certificate is in force in respect of the farm mortgage. S. 9 amended by No. 16/2017 s. 54, substituted by No. 22/2022 s. 92. 9 Farmer may request mediation (1) A farmer may give a notice to a creditor requesting mediation concerning a farm debt if— (a) the creditor has given the farmer a notice under section 8 in relation to the farm mortgage to which the debt relates; or (b) the creditor has not given the farmer a notice under section 8 but the farmer is liable for the debt, whether or not the farmer is in default under the farm mortgage to which the debt relates. (2) A request for mediation must be in the approved form. (3) A request for mediation under subsection (1)(a) must be given within 21 days after the day on which the creditor gave the notice under section 8 to the farmer. **Note** Under section 15, a creditor may apply for an exemption certificate if— (a) the farmer fails to give the creditor a request for mediation under subsection (1)(a) within 21 days after the day on which the creditor gave the notice under section 8 to the farmer; or (b) the farmer gives the creditor a request for mediation under subsection (1)(a) or (b) but subsequently refuses to mediate. 10 Creditor may agree to or refuse mediation S. 10(1) amended by No. 22/2022 s. 93(1). (1) A creditor who receives a request for mediation from a farmer may, by written notice given to the farmer, agree or refuse to mediate concerning the farm debt to which the request relates. S. 10(2) substituted by No. 22/2022 s. 93(2). (2) A notice under subsection (1) must be in the approved form. S. 10(3) amended by No. 22/2022 s. 93(3). (3) If a creditor refuses to mediate with a farmer who has given the creditor a request for mediation— (a) where the farmer is not in default, the refusal by the creditor does not, of itself, give rise to any claim or other consequence under this Act; S. 10(3)(b) amended by No. 16/2017 s. 55. (b) where the farmer is in default, the refusal by the creditor provides the farmer with grounds to apply to the Small Business Commission under section 13 for the issue of a prohibition certificate. S. 10(4) amended by No. 22/2022 s. 93(4)(a). (4) If a creditor agrees to mediate with a farmer who has given the creditor a request for mediation, the creditor must— S. 10(4)(a) amended by No. 22/2022 s. 93(4)(b). (a) by written notice, advise the Small Business Commission that the parties have agreed to mediate; and S. 10(4)(b) amended by No. 22/2022 s. 93(4)(b). (b) provide the notice specified in paragraph (a) to the Small Business Commission within 10 days after giving notice under subsection (1). S. 11 amended by No. 16/2017 s. 56, repealed by No. 22/2022 s. 94. * * * * * S. 12 repealed by No. 22/2022 s. 95. * * * * * Division 2—Prohibition certificate 13 Application by farmer for issue of prohibition certificate S. 13(1) amended by No. 16/2017 s. 57. (1) A farmer may apply to the Small Business Commission for a prohibition certificate to be issued if— (a) the farmer is in default under the farm mortgage; and S. 13(1)(b) substituted by No. 22/2022 s. 96(1)(a). (b) the farmer has given the creditor a request for mediation concerning the farm debt secured by the farm mortgage; and (c) the creditor— (i) has refused to mediate; or S. 13(1)(c)(ii) amended by No. 22/2022 s. 96(1)(b). (ii) has failed to respond to the request for mediation within 21 days of the farmer making the request. S. 13(2) substituted by No. 22/2022 s. 96(2). (2) An application for a prohibition certificate must be in the approved form. 14 Issue of prohibition certificate S. 14(1) amended by Nos 16/2017 s. 58(a), 22/2022 s. 97(1)(a). (1) Subject to subsection (2), on the application of a farmer, the Small Business Commission must issue a prohibition certificate if— (a) the farmer is in default under a farm mortgage; and S. 14(1)(b) substituted by No. 22/2022 s. 97(1)(b). (b) the farmer has given the creditor a request for mediation concerning the farm debt secured by the farm mortgage; and (c) an exemption certificate is not in force in respect of the farm mortgage; and S. 14(1)(d) amended by No. 16/2017 s. 58(b). (d) the Small Business Commission is satisfied that— (i) having regard to section 19(2), the creditor refuses to mediate; or (ii) the creditor does not want to continue to mediate; or S. 14(1)(d)(iii) substituted by No. 22/2022 s. 97(1)(c). (iii) the creditor has failed to respond to the request for mediation within 21 days after receiving the request; or S. 14(1)(d)(iv) amended by No. 22/2022 s. 97(1)(d). (iv) at least 3 months have elapsed after the request for mediation was given to the creditor and throughout that period the farmer has attempted to mediate in good faith but no mediation or no satisfactory mediation has taken place between the farmer and the creditor. S. 14(2) substituted by No. 22/2022 s. 97(2). (2) If a creditor has failed to respond to a request for mediation, the Small Business Commission may refuse to issue a prohibition certificate if satisfied that— (a) the creditor's failure to respond is justified in the circumstances; and (b) the creditor intends to mediate within a period that is reasonable in the circumstances. (3) A prohibition certificate ceases to be in force on the earlier of— (a) the expiry of 6 months after the date of issue of the prohibition certificate; or (b) the day on which the farmer and creditor enter into mediation in respect of the farm debt. Division 3—Exemption certificate 15 Application by creditor for issue of exemption certificate S. 15(1) amended by No. 16/2017 s. 59. (1) A creditor may apply to the Small Business Commission for the issue of an exemption certificate if— (a) the farmer is in default under the farm mortgage; and (b) a prohibition certificate is not in force in respect of the farm mortgage; and (c) satisfactory mediation— S. 15(1)(c)(i) substituted by No. 22/2022 s. 98(1). (i) has taken place concerning the farm debt to which the farm mortgage relates after the farmer, when in default under the farm mortgage, gave the creditor a request for mediation; or (ii) has not taken place as the farmer has refused to mediate; or (iii) has not taken place and at least 3 months have elapsed after a notice was given by the creditor under section 8, or any extended period that has been agreed to in writing by the creditor and farmer, and throughout that period the creditor has attempted to mediate in good faith. S. 15(2) amended by No. 16/2017 s. 59. (2) A creditor may apply to the Small Business Commission for an exemption certificate whether or not the creditor gave the farmer notice under section 8. (3) If a creditor has given notice under section 8, the creditor must comply with that section and subsection (1)(c) before making an application under this section. S. 15(4) substituted by No. 22/2022 s. 98(2). (4) An application for an exemption certificate must be in the approved form. 16 Issue of exemption certificate S. 16(1) repealed by No. 22/2022 s. 99(1). * * * * * S. 16(2) amended by Nos 16/2017 s. 60(1)(a), 22/2022 s. 99(2)(a). (2) Subject to subsection (2A), on the application of a creditor in respect of a farm mortgage, the Small Business Commission must issue an exemption certificate if— (a) the farmer is in default under the farm mortgage; and (b) no prohibition certificate is in force in relation to the farm mortgage; and S. 16(2)(c) amended by No. 16/2017 s. 60(1)(b). (c) the Small Business Commission is satisfied that— S. 16(2)(c)(i) substituted by No. 22/2022 s. 99(2)(b). (i) the farmer, when in default under the farm mortgage, gave the creditor a request for mediation and, having regard to section 17, satisfactory mediation has taken place concerning the farm debt to which the farm mortgage relates; or (ii) having regard to section 19(1), the farmer has refused to mediate; or (iii) at least 3 months have elapsed after a notice was given by the creditor under section 8, or any extended period that has been agreed to in writing by the creditor and farmer, and throughout that period the creditor has attempted to mediate in good faith but no mediation or no satisfactory mediation has taken place. S. 16(2A) inserted by No. 22/2022 s. 99(3). (2A) If a farmer has refused or failed to mediate, the Small Business Commission may refuse to issue an exemption certificate if satisfied that— (a) in the circumstances, the farmer is justified in refusing or failing to mediate; and (b) the farmer intends to mediate within a period that is reasonable in the circumstances. S. 16(3) amended by No. 16/2017 s. 60(2). (3) The Small Business Commission may issue an exemption certificate in respect of a farm mortgage to a creditor holding the mortgage if the Commission is satisfied that the farm debt has already been satisfactorily mediated under an alternative dispute resolution scheme other than that provided for under Part 3. S. 16(4) amended by No. 16/2017 s. 60(3). (4) If mediation has taken place under this Act, the Small Business Commission must have regard to the written report of the mediator who conducted the mediation to determine whether satisfactory mediation has occurred. (5) An exemption certificate remains in force for the period specified in the certificate that has been calculated in accordance with section 18. (6) The expiry of an exemption certificate does not affect any proceedings for recovery of a farm debt, or for the exercise or enforcement of any right of the creditor, already taken or commenced by a creditor while the exemption certificate was in force, and any proceedings may be continued and concluded as if the certificate were still in force. (7) The reference in subsection (6) to the commencement of proceedings does not include a reference to the giving of any statutory enforcement notice or other action taken in order to fulfil a condition precedent to the enforcement of a right otherwise than through proceedings in a court or tribunal. 17 Creditor may satisfactorily mediate without forgiving or reducing farm debt A failure by a creditor to agree to reduce or forgive any debt does not, of itself, demonstrate a lack of good faith on the part of a creditor in attempting to mediate. **Note** See section 4 as to the meaning of ***satisfactory mediation***. 18 Calculation of period of exemption certificate An exemption certificate remains in force— (a) if satisfactory mediation in respect of the farm debt concerned has taken place, for the period commencing on the date of issue of the exemption certificate and ending on the third anniversary of the last date of the mediation; or (b) if the farmer has failed to take part in mediation in good faith, for the period commencing on the date of issue of the exemption certificate and ending on the third anniversary of the last date of the mediation; or S. 18(c) amended by No. 22/2022 s. 100(a). (c) if the farmer has indicated in writing that the farmer does not wish to enter into or proceed with mediation, for the period commencing on the date of issue of the exemption certificate and ending on the third anniversary of the date on which the indication was given to the Small Business Commission or creditor; or S. 18(d) substituted by No. 22/2022 s. 100(b). (d) if the farmer has failed to respond to the creditor within 21 days after the creditor gave the farmer a notice under section 8, for the period commencing on the date of issue of the exemption certificate and ending on the third anniversary of the last day of that 21 day period; or S. 18(e) repealed by No. 22/2022 s. 100(c). * * * * * (f) in any other case, for the period of 3 years commencing on the date on which the certificate was issued. Division 4—General 19 When is a farmer or creditor presumed to have refused to mediate? (1) A farmer is presumed to have refused to mediate if any of the following circumstances are established— (a) the farmer has failed to take part in mediation in good faith or has unreasonably delayed entering into or proceeding with mediation; S. 19(1)(b) amended by No. 22/2022 s. 101(a). (b) the farmer has indicated in writing to the Small Business Commission or to the creditor that the farmer does not wish to enter into or proceed with mediation in respect of the farm debt; S. 19(1)(c) substituted by No. 22/2022 s. 101(b). (c) the farmer has failed to respond to the creditor within 21 days after the creditor gave the farmer a notice under section 8. (2) A creditor is presumed to have refused to mediate if any of the following circumstances are established— (a) the creditor has failed to take part in mediation in good faith or has unreasonably delayed entering into or proceeding with mediation; S. 19(2)(b) amended by No. 22/2022 s. 101(c). (b) the creditor has indicated in writing to the Small Business Commission or to the farmer that the creditor does not wish to enter into or proceed with mediation in respect of the farm debt. Pt 3 (Heading) amended by No. 16/2017 s. 61. Part 3—The Small Business Commission and mediation Pt 3 Div. 1 (Heading) substituted by No. 16/2017 s. 62. Division 1—The Small Business Commission and mediators S. 20 (Heading) amended by No. 16/2017 s. 63(1). 20 Functions of the Small Business Commission S. 20(1) amended by No. 16/2017 s. 63(2)(a). (1) The Small Business Commission has the following functions— S. 20(1)(a) amended by Nos 16/2017 s. 63(2)(b), 22/2022 s. 102(a). (a) to make arrangements to facilitate the resolution by mediation of farm debt disputes between farmers and creditors; (b) to provide preliminary assistance to farmers and creditors who have agreed to mediate in relation to farm debts by— (i) giving both parties advice about their rights and obligations in relation to the mediation process; and (ii) encouraging full and open communication between the parties in relation to the dispute; (c) to issue prohibition certificates under Division 2 of Part 2; (d) to issue exemption certificates under Division 3 of Part 2; S. 20(1)(da) inserted by No. 22/2022 s. 102(b). (da) to approve forms for the purposes of this Act; S. 20(1)(e) amended by No. 16/2017 s. 63(2)(b). (e) to report to the Minister on the operation of activities for which the Commission is responsible under this Act; S. 20(1)(f) amended by No. 16/2017 s. 63(2)(b). (f) any other functions that may be conferred or imposed on the Commission by or under this Act. S. 20(2) amended by Nos 16/2017 s. 63(3), 22/2022 s. 102(c). (2) The Small Business Commission is not subject to the Minister's control or direction in exercising functions under subsection (1)(a), (b), (c), (d) and (da). S. 20(3) amended by No. 16/2017 s. 63(3). (3) For the purposes of arranging for the resolution of farm debt disputes by mediation, the Small Business Commission— (a) may contract persons to conduct mediations; (b) must, when contracting persons under paragraph (a), ensure that those persons have the skills and experience to conduct a mediation in a particular case. 21 Functions of mediators S. 21(1) amended by No. 16/2017 s. 64. (1) A mediator contracted by the Small Business Commission under section 20 has the following functions— (a) to mediate farm debt disputes between creditors and farmers by assisting the parties to reach agreement about— (i) present arrangements between them; and (ii) if the financial relationship between the parties is to be ongoing—the future conduct of the parties; (b) any other function conferred on a mediator by or under this Act. (2) A mediator must not, in carrying out his or her functions under this Act— (a) advise a farmer or creditor about the law; or (b) encourage or assist a farmer or creditor in reserving or establishing legal rights; or (c) act as an adjudicator or arbitrator. Division 2—The mediation process S. 22 amended by No. 16/2017 s. 65, substituted by No. 22/2022 s. 103. 22 Small Business Commission to arrange mediation As soon as practicable after receiving a notice under section 10(4), the Small Business Commission must arrange for the farm debt dispute to which the notice relates to be the subject of mediation by a mediator. 23 Conduct of mediation (1) A mediation must be conducted with— (a) as little formality and technicality as proper mediation of the farm debt permits; and (b) as much expedition as possible. S. 23(2) amended by No. 16/2017 s. 66. (2) The Small Business Commission, having regard to any recommendations made by a mediator, may join any person that he or she considers appropriate to join as a party to the mediation. (3) A party to a mediation may be represented by— S. 23(3)(a) amended by No. 22/2022 s. 104. (a) an Australian legal practitioner; or S. 23(3)(b) amended by No. 16/2017 s. 66. (b) any other person considered appropriate by the Small Business Commission having regard to any recommendations made by a mediator. (4) Despite subsection (3), the mediator may meet with a party to the mediation (alone or together with another party) in the absence of their representative if— (a) the mediator considers it appropriate to do so; and (b) the relevant party agrees to meet the mediator in the absence of their representative. 24 Mediation session fee (1) In this section— ***mediation session*** means a continuous period of time (excluding breaks) in which the parties engage in mediation in any one day in the presence of a mediator. S. 24(2) amended by No. 16/2017 s. 67(1)(a). (2) The Small Business Commission may, from time to time, by notice published— (a) in the Government Gazette; and S. 24(2)(b) amended by No. 16/2017 s. 67(1)(b). (b) on the website of the Small Business Commission— fix a fee not exceeding 50 fee units in respect of each mediation session. S. 24(3) amended by No. 16/2017 s. 67(2). (3) A fee fixed by the Small Business Commission under this section must be paid to the Small Business Commission by each party to the mediation before a mediation session commences. (4) A fee fixed under this section applies on and from the publication of the notice or on any later date specified in the notice. 25 Costs of mediation S. 25(1) amended by No. 16/2017 s. 68. (1) This section applies if the Small Business Commission has not fixed a fee under section 24. S. 25(2) amended by No. 16/2017 s. 68. (2) The costs of, and associated with, mediation by a mediator (including the fees and expenses of the mediator) are to be determined by the Small Business Commission and paid by the parties in the proportions that they agree among themselves or, if they cannot agree, in equal shares. 26 Confidentiality of mediation (1) In this section— ***mediation*** includes any steps taken in the course of making arrangements for mediation. (2) Evidence of anything said or admitted during mediation and a document prepared for the purposes of, in the course of or in accordance with, mediation are not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence. (3) This section does not apply to— (a) any contract, deed, mortgage or other instrument entered into as a result of, or in accordance with, any binding agreement entered during mediation; or (b) any report on the mediation by the mediator who conducted it. 27 Disclosure of information A person must not disclose, or attempt to disclose, any information obtained in mediation or in connection with the administration or execution of this Act unless the disclosure, or attempted disclosure— (a) is made with the consent of the person from whom the information was obtained; or (b) is necessary to ensure the administration or execution of this Act; or (c) is reasonably required for the purpose of referring any party or parties to mediation to any person, agency, organisation or other body and, with the consent of the parties to the mediation, for the purpose of aiding in the resolution of an issue between those parties; or (d) is made in accordance with a requirement imposed by or under a law of the State or the Commonwealth; or (e) is made with other lawful excuse. Penalty: 60 penalty units. Part 4—General 28 Resulting agreement to reflect agreement reached by parties at mediation A creditor must ensure that any binding agreement relating to the farm debt made between the creditor and the farmer, entered during or at the conclusion of mediation, is reflected in any contract, deed, mortgage or other instrument entered into as a result of that binding agreement. 29 Contracting out prohibited (1) A provision of an agreement or other instrument, (whether in writing or not and whether entered into before, on or after the commencement day) by which a person seeks to avoid, modify or restrict the operation of this Act is void. (2) A provision of an agreement or other instrument (whether in writing or not and whether entered into before, on or after the commencement day) by which a person seeks to have a farmer (as debtor or guarantor) or a guarantor indemnify a creditor for any loss or liability arising under this Act is void. 30 Waiver of rights void A waiver of mediation rights under this Act is void. 31 Notices by mortgagee If land is subject to a farm mortgage and another Act requires the mortgagee to give notice to the mortgagor before exercising in relation to the land a power or right conferred by the other Act or by the farm mortgage— (a) nothing in this Act derogates from the requirement to give the notice under the other Act; and (b) a notice required by this Act to be given before the exercise of the power or right does not fail to comply with this Act only because it includes matter required to be specified in a notice required by the other Act to be given before exercise of the power or right. 32 Manner of giving notices S. 32(1) amended by No. 16/2017 s. 69, substituted by No. 22/2022 s. 105(1). (1) If this Act requires or permits a notice or other document to be given to the Small Business Commission, the notice or other document may be given by— (a) leaving it at any office of the Small Business Commission; or (b) sending it by post or electronic communication to any office of the Small Business Commission. S. 32(2) amended by Nos 16/2017 s. 69, 22/2022 s. 105(2)(a). (2) If this Act requires or permits a notice or other document to be given to a person, other than the Small Business Commission, the notice or other document may be given to— (a) a natural person— (i) by delivering it to the person personally; or S. 32(2)(a)(ii) amended by No. 22/2022 s. 105(2)(b). (ii) by leaving it at, or by sending it by post or electronic communication to, the address of the place of residence or business of the person last known to the person giving or serving the notice or other document; or (b) a body corporate— (i) by leaving it at the registered office of the body corporate with an officer of the body corporate; or (ii) by delivering it to a director or secretary of the body corporate personally; or S. 32(2)(b)(iii) amended by No. 22/2022 s. 105(2)(b). (iii) by sending it by post or electronic communication to the registered office of the body corporate or the address of the place of residence or business of a director or secretary of the body corporate. (3) Nothing in this section— (a) affects the operation of another law that authorises the service of a notice or other document otherwise than as provided in this section; or (b) affects the power of a court or tribunal to authorise service of a notice or other document otherwise than as provided in this section. 33 Date notice or other document is given For the purpose of this Act, a notice or other document is taken to be given— (a) in the case of a notice or other document given personally—on the date it bears or on the date it is received by the addressee, whichever is the later; or (b) in the case of a notice or other document sent by post—on the date it bears or the date when it would have been delivered in the ordinary course of post, whichever is the later; or S. 33(c) amended by No. 22/2022 s. 106. (c) in the case of a notice or other document sent by electronic communication—at the time of receipt in accordance with section 13 of the **Electronic Transactions (Victoria) Act 2000**. 34 Offences by bodies corporate (1) If a body corporate contravenes a provision of this Act or the regulations, each officer of the body corporate is taken to have contravened the same provision if the officer knowingly authorised or permitted the contravention. (2) A person may be proceeded against and convicted under a provision in accordance with subsection (1) whether or not the body corporate has been proceeded against under that provision. (3) Nothing in this section affects any liability imposed on a body corporate for an offence committed by the body corporate against this Act or the regulations. (4) In this section— ***officer*** means a director of the body corporate or a person who is otherwise concerned in its management. 35 Commencement of criminal proceedings Despite section 7(1) of the **Criminal Procedure Act 2009**, a proceeding for an offence against a provision of this Act or the regulations may be commenced at any time with the consent in writing of the Attorney-General. 36 Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. (2) Regulations made under this Act may— (a) be of general or limited application; (b) differ according to differences in time, place or circumstance; (c) confer a discretionary authority or impose a duty on a specified person or body or a specified class of person or body; (d) provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; (e) may impose penalties not exceeding 20 penalty units for a contravention of the regulations. 37 Transitional provision This Act applies to— (a) a farm debt that is outstanding on the commencement day irrespective of when the farm debt was incurred and in respect of which enforcement action has not commenced; and (b) a farm debt that is incurred on or after the commencement day. S. 38 inserted by No. 22/2022 s. 107. 38 Transitional provisions—Agriculture Legislation Amendment Act 2022 (1) This Act, as in force immediately before the ALA commencement day, continues to apply in relation to— (a) a creditor who commenced enforcement action in accordance with this Act as in force immediately before that day; and (b) a farmer who, before the ALA commencement day, was given a notice under section 8 as in force at the time the notice was given; and (c) a creditor who, before the ALA commencement day, was notified under section 9, as in force at the time the notice was given, that a farmer requests mediation. (2) This Act, as amended by the amending Act, applies to a farm debt incurred in relation to an activity referred to in paragraph (ba) or (bb) of the definition of ***farming operation*** in section 3— (a) that is outstanding on the ALA commencement day irrespective of when the farm debt was incurred and in respect of which enforcement action has not commenced; or (b) that is incurred on or after the commencement day. (3) A form approved by the Secretary under section 8(2)(d) as in force immediately before the ALA commencement day is taken, on and after that day, to be an approved form for a notice under section 8(2)(b) until the Small Business Commission approves a form for that notice. (4) A form approved by the Secretary under section 9(4) as in force immediately before the ALA commencement day is taken, on and after that day, to be an approved form for a request for mediation under section 9(2) until the Small Business Commission approves a form for a request for mediation. (5) A form approved by the Secretary under section 10(2) as in force immediately before the ALA commencement day is taken, on and after that day, to be an approved form for a notice under section 10(2) until the Small Business Commission approves a form for that notice. (6) In this section— ***ALA commencement day*** means the day on which Part 6 of the amending Act comes into operation; ***amending Act*** means the **Agriculture Legislation Amendment Act 2022**; ***Secretary*** means Secretary to the Department of Jobs, Precincts and Regions. ═══════════════ Endnotes 1 General information See [www.legislation.vic.gov.au](http://www.legislation.vic.gov.au) for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information. *Minister's second reading speech—* *Legislative Assembly: 29 June 2011* *Legislative Council: 18 August 2011* The long title for the Bill for this Act was "A Bill for an Act to provide for the resolution of farm debt disputes by requiring a creditor to provide a farmer with the option to mediate before taking possession of property or other enforcement action under a farm mortgage and for other purposes." The **Farm Debt Mediation Act 2011** was assented to on 6 September 2011 and came into operation on 1 December 2011: Special Gazette (No. 379) 22 November 2011 page 1. INTERPRETATION OF LEGISLATION ACT 1984 (ILA) Style changes Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act. References to ILA s. 39B Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause. Interpretation As from 1 January 2001, amendments to section 36 of the ILA have the following effects: • Headings All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A). • Examples, diagrams or notes All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A). • Punctuation All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B). • Provision numbers All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C). • Location of "legislative items" A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B. • Other material Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E). 2 Table of Amendments This publication incorporates amendments made to the **Farm Debt Mediation Act 2011** by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– **Statute Law Revision Act 2013, No. 70/2013** | *Assent Date:* | 19.11.13 | | --- | --- | | *Commencement Date:* | S. 4(Sch. 2 item 17) on 1.12.13: s. 2(1) | | *Current State:* | This information relates only to the provision/s amending the **Farm Debt Mediation Act 2011** | **Small Business Commission Act 2017, No. 16/2017** | *Assent Date:* | 10.5.17 | | --- | --- | | *Commencement Date:* | Ss 53–69 on 1.7.17: Special Gazette (No. 216) 27.6.17 p. 1 | | *Current State:* | This information relates only to the provision/s amending the **Farm Debt Mediation Act 2011** | **Agriculture Legislation Amendment Act 2022, No. 22/2022** | *Assent Date:* | 15.6.22 | | --- | --- | | *Commencement Date:* | Ss 89–107 on 31.10.22: Special Gazette (No. 506) 27.9.22 p. 1 | | *Current State:* | This information relates only to the provision/s amending the **Farm Debt Mediation Act 2011** | ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 Explanatory details No entries at date of publication.