Farm Debt Mediation Act 2024

Farm Debt Mediation Act 2024

This Act may be cited as the Farm Debt Mediation Act 2024.

The provisions of this Act commence on a day or days to be proclaimed.

The object of this Act is to provide for the efficient and equitable resolution of matters involving farm debts by requiring mediation before a Creditor can take possession of property or other enforcement action under a farm mortgage.

This Act binds the Crown in right of Tasmania and, in so far as the legislative power of Parliament permits, in all its other capacities.

In this Act – approved form means a form approved by the Commissioner; business day means a day that is not – a Saturday or Sunday; or a statutory holiday within the meaning of the Statutory Holidays Act 2000;Commissioner means the Farm Debt Mediation Commissioner appointed under section 11(1); cooling-off period, in relation to a draft mediation agreement or a mediation agreement, means the cooling-off period specified in section 36(2); cooling-off period statement means a statement, in an approved form, specifying the cooling-off period;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; draft mediation agreement means a draft mediation agreement prepared in accordance with section 34; 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 – the completion of the sale of property held under the mortgage in respect of which contracts were exchanged before the commencement of Part 4 of this Act; or the enforcement of a judgment that was obtained before the commencement of Part 4 of this Act; exemption certificate means a certificate that is issued and is in force in accordance with section 16; 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; 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; farming operation– see section 7; farm machinery means any of the following things that are commonly used for the purposes of a farming operation:a vehicle, machine or other implement; any other thing of a prescribed class; 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; and any stock mortgage or any crop or wool lien; and the interest of the lessor of any farm machinery that is leased; farm property means – a farm or part of a farm; or farm machinery used by a farmer in connection with a farming operation; or a licence, or a water allocation, within the meaning of the Water Management Act 1999, that is held by a farmer in connection with a farming operation; function includes a power, authority or duty; hire purchase agreement means an agreement – for the letting of goods with an option to purchase the goods; or 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; mediation– see section 6; mediation agreement means a mediation agreement in accordance with section 35; mediation request means a request inviting a Creditor to participate in mediation that is given to the Creditor by a farmer in accordance with section 25(1); mediator means a person accredited, or reaccredited, as a mediator in accordance with section 22; notice inviting mediation means a notice inviting a farmer to participate in mediation that is given to the farmer by a Creditor in accordance with section 24(1); parties, in relation to mediation, means any of the following persons who are participants in the mediation:a farmer; a Creditor; an agent approved to represent a farmer or Creditor in the mediation in accordance with section 32; an advisor who is present at the mediation in accordance with section 32(7); prohibition certificate means a certificate that is issued and in force in accordance with section 19; statutory enforcement notice means – a notice given, or left, in accordance with section 77(1) of the Land Titles Act 1980; or a notice served or published under section 22 of the Conveyancing and Law of Property Act 1884; or a notice, under any Act, that is prescribed for the purposes of this definition.

For the purposes of this Act, satisfactory mediation means a mediation that – has achieved a resolution of a matter involving a farm debt; or has proceeded as far as it reasonably can in attempting to achieve a resolution of a matter involving a farm debt but has nevertheless failed to resolve the matter; or is prescribed, or is within a class of mediations prescribed, for the purposes of this subsection to be a satisfactory mediation.

is a structured negotiation process in which a mediator, as a neutral and independent party, assists the parties in the process – to communicate effectively with each other; and to reach agreement on the issues in dispute; and to achieve their own resolution of the dispute.

The regulations may prescribe that any process of a specified kind is, or is not, mediation for the purposes of this Act.

A farming operation is a business undertaking that primarily involves one or more of the following activities:agriculture (for example, crop growing and livestock or grain farming); aquaculture; the cultivation or harvesting of timber or native vegetation; any activity involving primary production carried out in connection with an activity referred to in paragraph (a), (b) or (c).

A farming operation does not include a business undertaking that primarily involves wild harvest fishing or the hunting or trapping of animals, birds or reptiles in the wild.

The regulations may prescribe that any business undertaking of a specified kind is, or is not, a farming operation for the purposes of this Act.

Subject to subsections (2) and (3), this Act applies in respect of Creditors only in so far as they are Creditors under a farm debt.

This Act does not apply in respect of – a farmer whose property is subject to control under Division 2 of Part X of the Bankruptcy Act 1966 of the Commonwealth; or a farmer whose property is the subject of a bankruptcy petition presented by any person; or a farmer that is an externally administered corporation within the meaning of the Corporations Act.

This Act does not apply in respect of a farm debt secured by a farm mortgage if – the farmer is in default under the farm mortgage; and the farm mortgage secures all or part of the balance outstanding under an earlier farm mortgage; and the farmer and the Creditor have previously entered into a mediation agreement under this Act in relation to the farm debt.

Nothing in this Act affects the operation of any other Act that deals with the granting of relief in respect of harsh, oppressive, unconscionable or unjust contracts or on the grounds of hardship.

Nothing in this Act is to be construed as affecting the operation of the Banking Act 1959 of the Commonwealth and, in particular, the duty of the Australian Prudential Regulation Authority under Division 2 of Part II of that Act.

Except as otherwise expressly provided by this Act, this Act does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.

Other than as provided in this section, this Act has effect despite any other Act.

A provision of an agreement or other instrument (whether in writing or not and whether entered into before or after the commencement of this section) is void to the extent that it purports to exclude, modify or limit the application of a provision of this Act.

A provision of an agreement or other instrument (whether in writing or not and whether entered into before or after the commencement of this section) is void to the extent that it purports to have a farmer (whether as debtor or guarantor) or a guarantor indemnify a Creditor for any loss or liability arising under this Act.

A Creditor who is a party to an agreement, or other instrument, referred to in subsection (1) or (2) is guilty of an offence. Fine not exceeding 60 penalty units.

The Minister is to appoint a State Service officer, or State Service employee, as the Farm Debt Mediation Commissioner.

For the avoidance of doubt, a person appointed as Commissioner may hold that office in conjunction with State Service employment.