Farm Debt Mediation Act 2018 (SA)

South Australia Farm Debt Mediation Act 2018 An Act to provide for the mediation of disputes between farmers and creditors relating to debt incurred in the conduct of farming operations, and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Object of Act 4 Interpretation 5 Application of Act 6 Enforcement action in contravention of Act void 7 Relationship with other Acts Part 2—Availability of mediation Division 1—Availability of mediation 8 Notice of availability of mediation to be given 9 Farmer may request mediation 10 Creditor may agree to or refuse mediation 11 Enforcement action postponed to allow for mediation Division 2—Prohibition certificate 12 Application by farmer for issue of prohibition certificate 13 Issue of prohibition certificate Division 3—Exemption certificate 14 Application by creditor for issue of exemption certificate 15 Issue of exemption certificate 16 Creditor may satisfactorily participate in mediation without forgiving or reducing farm debt 17 Duration of exemption certificate Division 4—General 18 When is a farmer or creditor presumed to have refused to participate in mediation? Part 3—The Commissioner and mediation Division 1—The Commissioner and mediators 19 Administration of Act 20 Functions of Commissioner 21 Functions of mediators Division 2—The mediation process 22 Commissioner must arrange mediation 23 Conduct of mediation 24 Confidentiality 25 Mediation fees Part 4—General 26 Agreement reached by parties at mediation 27 Contracting out prohibited 28 Waiver of rights void 29 Notices by mortgagee 30 Service 31 Offences by bodies corporate 32 Regulations Schedule 1—Transitional provision 1 Transitional provision Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Farm Debt Mediation Act 2018. 3—Object of Act The object of this Act is to provide for the efficient and equitable resolution of farm debt disputes by requiring creditors to provide farmers with the opportunity to have the disputes referred to mediation before the creditors are able to take possession of property or other enforcement action under farm mortgages. 4—Interpretation (1) In this Act, unless the contrary intention appears— commencement day means the day on which this Act comes into operation; Commissioner means the Small Business Commissioner; 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 a 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. director of a body corporate includes— (a) a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (b) any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act; enforcement action, in relation to a farm mortgage, means the taking of possession of property under the mortgage or any other action to enforce the mortgage, including 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 a contract has been executed before the commencement day; or (b) the enforcement of a judgment that was obtained before the commencement day; exemption certificate means a certificate issued in respect of a farm mortgage under section 15; 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 or equipment acquired for the purposes of a farming operation: (a) a harvester, binder, tractor, plough or other agricultural implement; (b) any other goods or equipment of a class commonly used for the purposes of a farming operation; farm mortgage includes an interest in, or power over, farm property securing obligations of the farmer (whether as a debtor or guarantor), including an interest in, or power arising from, a hire purchase agreement relating to farm machinery, but does not include— (a) a stock mortgage or a 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) an irrigation right within the meaning of the Irrigation Act 2009 issued to a farmer for the purposes of a farming operation; or (d) an authority to take water under the Landscape South Australia Act 2019 issued to a farmer for the purposes of a farming operation; or (e) property of a prescribed kind; farmer means a person or body solely or principally engaged in a farming operation, and includes— (a) a person who owns land cultivated under a share-farming agreement; and (b) the personal representative of a deceased farmer; farming operation means any of the following activities undertaken for commercial gain: (a) agricultural, pastoral, horticultural, viticultural, forestry 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; (c) aquaculture or the propagation or harvesting of fish or other aquatic organisms for the purposes of aquaculture; (d) an activity prescribed by regulation; function includes a power, authority or duty; mediator means a person engaged by the Commissioner under this Act to mediate farm debt disputes between creditors and farmers; prohibition certificate means a certificate in respect of a farm mortgage issued under section 13; 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 mediation of a prescribed class; Small Business Commissioner means the person for the time being holding or acting in the office of Small Business Commissioner under the Small Business Commissioner Act 2011; statutory enforcement notice means— (a) a notice under section 55A of the Law of Property Act 1936; or (b) any notice designated by the Minister as a statutory enforcement notice. (2) The Minister may by notice in the Gazette designate a notice under an Act to be a statutory enforcement notice. (3) The Minister may by further notice in the Gazette vary or revoke a notice under subsection (2). 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 Part X Division 2 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 that is an externally-administered body corporate within the meaning of the Corporations Act 2001 of the Commonwealth. 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 following Acts: (a) the Limitation of Actions Act 1936; (b) the National Consumer Credit Protection Act 2009 of the Commonwealth; (c) the Personal Property Securities Act 2009 of the Commonwealth. (2) Nothing in this Act affects the operation of the Banking Act 1959 of the Commonwealth and, in particular, the duty of the Australian Prudential Regulation Authority under Part II Division 2 of that Act.