South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Farm Debt Mediation Bill 2018
A BILL FOR
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
6Enforcement action in
contravention of Act void
Part 2—Availability
of mediation
Division 1—Availability
of mediation
8Notice of availability of
mediation to be given
10Creditor may agree to or
refuse mediation
11Enforcement action postponed to allow for
mediation
Division 2—Prohibition
certificate
12Application by farmer
for issue of prohibition certificate
13Issue of prohibition
certificate
Division 3—Exemption
certificate
14Application by creditor for
issue of exemption certificate
15Issue of exemption
certificate
16Creditor may satisfactorily
participate in mediation without forgiving or reducing farm debt
17Duration of exemption
certificate
18When 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
Division 2—The mediation
process
22Commissioner must arrange
mediation
26Agreement reached by parties at
mediation
31Offences by bodies corporate
Schedule 1—Transitional
provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Farm Debt Mediation
Act 2018.
This Act will come into operation on a day to be fixed by
proclamation.
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.
(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
Natural
Resources Management Act 2004
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)
.
(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.
Part 2—Availability
of mediation
Division 1—Availability
of mediation
8—Notice
of availability of mediation to be given
(1) A creditor must not
take enforcement action against a farmer under a farm mortgage
unless—
(a) the creditor has given notice to the farmer in accordance with this
section; and
(b) 21 days have expired since the day on which notice was
given.
(2) Notice under
subsection (1)
—
(a) must state that the creditor intends to take enforcement action under
the farm mortgage; and
(b) must state that, under this Act, mediation between the farmer and the
creditor is available; and
(c) must state that the farmer has 21 days from the day on which the
notice was given to request mediation with the creditor in respect of the farm
debt; and
(d) must be given in a manner and form approved by the
Commissioner.
(3) This section does not apply to a creditor if an exemption certificate
is in force in respect of the farm mortgage.
9—Farmer
may request mediation
(1) A farmer who is liable for debt (whether or not the farmer is in
default) may request mediation under this Act.
(2) A farmer who is
given notice under
section 8
may, within 21 days from the day on which notice was given, notify the
creditor, in a manner and form approved by the Commissioner, that the farmer
requests mediation concerning the farm debt involved.
(3) A farmer to whom
notice has not been given under
section 8
and who is liable for a farm debt may notify a creditor that the farmer
requests mediation concerning the farm debt.
(4) Notice of a request for mediation by a farmer under
subsection (2)
or
(3)
must be given in a manner and form approved by the Commissioner.
10—Creditor
may agree to or refuse mediation
(1) A creditor who
receives a request for mediation from a farmer under
section 9
may, by notice given to the farmer, agree or refuse to participate in
mediation in respect of the farm debt involved.
(2) Notice of a response by a creditor under
subsection (1)
to a request for mediation must be given in a manner and form approved by
the Commissioner.
(3) If a creditor refuses to participate in mediation with a farmer who
has made a request under
section 9
—
(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;
(b) where the farmer is in default, the refusal by the creditor provides
the farmer with grounds to apply to the Commissioner under
section 12
for the issue of a prohibition certificate.
(4) If a creditor
agrees to participate in mediation with a farmer who has made a request under
section 9
, the creditor must, within 10 days after giving notice to the farmer under
subsection (1)
, notify the Commissioner, in a manner and form approved by the
Commissioner, that the parties have agreed to participate in
mediation.
11—Enforcement
action postponed to allow for mediation
If a farmer has made a request for mediation under
section 9
, the creditor must not take enforcement action in respect of the farm
mortgage concerned unless an exemption certificate is in force.
Note—
Enforcement action taken in breach of this section is void under
section 6
.
Division 2—Prohibition
certificate
12—Application
by farmer for issue of prohibition certificate
(1) A farmer is, on
application to the Commissioner, entitled to be issued with a prohibition
certificate if—
(a) the farmer is in default under a farm mortgage; and
(b) an exemption certificate is not in force in respect of the farm
mortgage; and
(c) the farmer has notified a creditor in accordance with
section 9(2)
or
(3)
that the farmer requests mediation concerning the farm debt; and
(d) following the farmer's request for mediation under
section 9(2)
or
(3)
—
(i) satisfactory mediation has not taken place because—
(A) the creditor has refused to participate in mediation (or has failed to
respond to the farmer's request for mediation); or
(B) mediation has commenced but the creditor does not wish to continue to
participate in mediation; or
(ii) at least 3 months have elapsed since a request was made by the farmer
under
section 9(2)
or
(3)
and throughout that period the farmer has attempted to participate in
mediation in good faith but no satisfactory mediation has taken place between
the farmer and the creditor.
(2) An application under
subsection (1)
must—
(a) be made in a manner and form approved by the Commissioner;
and
(b) specify the circumstances under which the farmer made the request to
participate in mediation; and
(c) if relevant, specify the circumstances of the creditor's refusal to
participate in mediation.
13—Issue
of prohibition certificate
(1) The Commissioner must issue a prohibition certificate to a farmer who
is entitled to a certificate under
section 12
.
(2) If mediation has taken place under this Act, the Commissioner must
have regard to the report of the mediator who conducted the mediation to
determine whether satisfactory mediation has occurred.
(3) A creditor must not commence enforcement action against a farmer if a
prohibition certificate is in force in respect of the farm mortgage held by that
creditor.
(4) A prohibition certificate expires—
(a) 6 months after the day on which the prohibition certificate was
issued; or
(b) on the day on which the farmer and creditor enter into mediation in
respect of the farm debt,
whichever is the earlier.
Division 3—Exemption
certificate
14—Application
by creditor for issue of exemption certificate
(1) A creditor is, on
application to the Commissioner, entitled to be issued with an exemption
certificate if—
(a) a farmer is in default under a farm mortgage; and
(b) a prohibition certificate is not in force in respect of the farm
mortgage; and
(c) —
(i) in the case of a creditor who gave notice under
section 8
in relation to the farm debt in respect of the farm
mortgage—
(A) satisfactory mediation under this Act has taken place; or
(B) satisfactory mediation has not taken place because the farmer has
refused to participate in mediation; or
(C) at least 3 months (or such longer period agreed to in writing by the
creditor and farmer) has elapsed since notice was given and throughout that
period the creditor made attempts to participate in mediation in good faith but
satisfactory mediation has not taken place; or
(ii) in any other case—satisfactory mediation has taken place under
an alternative dispute resolution process (other than the dispute resolution
process provided for by this Act).
(2) An application under
subsection (1)
must—
(a) be made in a manner and form approved by the Commissioner;
and
(b) specify the circumstances of the farmer's default; and
(c) if relevant, specify the circumstances of the farmer's refusal to
participate in mediation; and
(d) if relevant, set out details of any alternative dispute resolution
process (other than the dispute resolution process provided for by this Act)
that has occurred between the farmer and the creditor in relation to the farm
debt.
15—Issue
of exemption certificate
(1) The Commissioner must issue an exemption certificate to a creditor who
is entitled to a certificate under
section 14
.
(2) If mediation has taken place under this Act, the Commissioner must
have regard to the report of the mediator who conducted the mediation to
determine whether satisfactory mediation has occurred.
(3) If an exemption certificate has been issued in respect of a farm
mortgage, this Act (other than this Division) does not apply to the creditor who
holds the farm mortgage while the certificate is in force.
(4) 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.
(5) The reference in
subsection (4)
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.
16—Creditor
may satisfactorily participate in mediation 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
participating in, or attempting to participate in, mediation.
17—Duration
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 day of issue of the exemption
certificate and ending on the third anniversary of the last day 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
(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
day of issue of the exemption certificate and ending on the third anniversary of
the day on which the indication was given to the Commissioner or creditor;
or
(d) if the farmer has failed to respond in writing, within 28 days, to an
invitation referred to in
section 18(a)(iii)
—for the period commencing on the day of issue of the exemption
certificate and ending on the third anniversary of the day that is 28 days after
the invitation was given to the farmer; or
(e) if a notice was given by the creditor under
section 8
—for the period commencing on the day of issue of the exemption
certificate and ending on the day that is 3 years and 3 months after the date
the notice was given; or
(f) in any other case—for the period of 3 years commencing on the
day on which the certificate was issued.
18—When
is a farmer or creditor presumed to have refused to participate in
mediation?
For the purposes of this Act—
(a) a farmer is
presumed to have refused to participate in mediation in the following
circumstances:
(i) the farmer has failed to take part in mediation in good faith or has
not entered into or proceeded with mediation within 3 months of a notice of
availability under
section 8
being given or a request for mediation under
section 9
being made (as the case may require);
(ii) the farmer has notified the Commissioner or creditor that the farmer
does not wish to enter into or proceed with mediation in respect of the farm
debt;
(iii) the farmer has
failed to respond within 28 days to an invitation that—
(A) is made by the creditor in a manner and form approved by the
Commissioner; and
(B) invites the farmer to attend a mediation session; and
(C) indicates that a failure of the farmer to respond to the invitation
might be taken to be an indication that the farmer refuses to take part in
mediation in respect of the farm debt;
(b) a creditor is presumed to have refused to participate in mediation in
the following circumstances:
(i) the creditor has failed to take part in mediation in good faith or has
not entered into or proceeded with mediation within 3 months of a notice of
availability under
section 8
being given or a request for mediation under
section 9
being made (as the case requires);
(ii) the creditor has notified, in a manner and form approved by the
Commissioner, the Commissioner or the farmer that the creditor does not wish to
enter into or proceed with mediation in respect of the farm debt.
Part 3—The
Commissioner and mediation
Division 1—The
Commissioner and mediators
The Commissioner is responsible for the administration of this
Act.
(1) The Commissioner
has the following functions under this Act:
(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 participate
in mediation 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
Part 2
Division 2
;
(d) to issue exemption
certificates under
Part 2
Division 3
;
(e) to report to the Minister responsible for the administration of the
Livestock
Act 1997
on the performance of functions by the Commissioner under this Act
(without limiting the Commissioner's functions under section 5 of the
Small
Business Commissioner Act 2011
);
(f) to perform any function conferred or imposed on the Commissioner under
this Act.
(2) The Commissioner is not subject to the Minister's control or direction
in exercising functions under
section 20(1)(a)
,
(b)
,
(c)
or
(d)
.
(3) For the purposes of arranging for the resolution of farm debt disputes
by mediation, the Commissioner—
(a) may engage persons
to conduct mediations; and
(b) must, when engaging persons under
paragraph (a)
, ensure that those persons have the necessary skills and experience to
conduct a mediation in a particular case.
(1) A mediator engaged by the Commissioner 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) to perform any other function conferred on the mediator by or under
this Act.
(2) In carrying out a function under this Act, a mediator must
not—
(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
22—Commissioner
must arrange mediation
If the Commissioner is notified under
section 10(4)
that the parties to a farm debt dispute have agreed to take part in
mediation, the Commissioner must arrange for mediation of the dispute by a
mediator.
(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.
(2) The Commissioner, having regard to any recommendations made by a
mediator, may join any person that the Commissioner considers appropriate to
join as a party to the mediation.
(3) A mediator may call a pre-mediation conference.
(4) The mediator may—
(a) conduct a
pre-mediation conference with such procedures as the mediator thinks fit;
and
(b) without limiting
paragraph (a)
, allow the parties to participate in a pre-mediation conference by means
of telephone, video link or any other system or method of
communication.
(5) A party to a
mediation may be represented by—
(a) a legal practitioner (within the meaning of the
Legal
Practitioners Act 1981
); or
(b) any other person considered appropriate by the Commissioner having
regard to any recommendations made by a mediator.
(6) Despite
subsection (5)
, 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.
(7) A mediator must, as soon as reasonably practicable after mediation
conducted by the mediator has concluded, submit to the Commissioner a report on
the mediation.
(1) A person must not
disclose any information obtained in the course of mediation under this Act, or
in the administration of this Act, except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the written consent of the person from whom the information was
obtained or to whom the information relates; or
(c) in connection with the administration of this Act; or
(d) as is reasonably required to refer any party or parties to mediation
to any person, agency, organisation or other body and, with the written consent
of the parties to the mediation, to aid in the resolution of an issue between
those parties; or
(e) to an authority responsible under the law of a place outside this
State, where the information is required for the proper administration of that
law; or
(f) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions; or
(g) in accordance with the regulations.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(4) Evidence of
anything said or admitted during mediation or a document prepared for the
purposes of, in the course of or in accordance with, mediation is not admissible
in any proceedings in a court or before a person or body authorised to hear and
receive evidence.
(5)
Subsection (4)
does not apply to—
(a) any contract, deed, mortgage or other instrument executed 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.
(6) In this section—
mediation includes any steps taken in the course of making
arrangements for mediation.
(1) A fee of an amount determined by the Commissioner is payable by each
of the parties participating in mediation of a farm debt dispute under this
Act.
(2) The Commissioner may, for the purposes of this section, by notice in
the Gazette or publication on a website selected by the Commissioner, determine
the fee payable for mediation under this Act.
(3) A fee for mediation payable by a party to mediation is recoverable by
the Commissioner as a debt in a court of competent jurisdiction.
(4) The Commissioner may wholly or partly waive or reduce a fee payable
under this section.
26—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 that is entered into during or at the
conclusion of mediation is reflected in any contract, deed, mortgage or other
instrument executed as a result of that binding agreement.
(1) A provision of an agreement or other instrument (whether or not in
writing, and whether entered into before, on or after the commencement of this
Act) 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 or not in
writing, and whether entered into before, on or after the commencement of this
Act) 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.
A waiver of mediation rights under this Act is void.
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 nothing
in this Act derogates from the requirement to give the notice under the other
Act.
(1) A notice or
other document required or authorised to be given or sent to, or served on, a
person under this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person at the person's last
known residential or (in the case of a corporation) registered address;
or
(c) be left for the person at the person's last known residential or (in
the case of a corporation) registered address with someone apparently over the
age of 16 years; or
(d) be transmitted by email to an email address.
(2) Without limiting the effect of
subsection (1)
, a notice or other document required to be given or sent to, or served on,
a person for the purposes of this Act may, if the person is a company or
registered body within the meaning of the Corporations Act 2001 of the
Commonwealth, be served on the person in accordance with that Act.
31—Offences
by bodies corporate
(1) If a body corporate is guilty of an offence against this Act (other
than an offence against the regulations), each director of the body corporate is
guilty of an offence and liable to the same penalty as is prescribed for the
principal offence if the prosecution proves that—
(a) the director knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the director was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the director failed to exercise due diligence to prevent the
commission of the offence.
(2) The regulations may make provision in relation to the criminal
liability of a director of a body corporate that is guilty of an offence against
the regulations.
(1) The Governor may
make such regulations as are contemplated by this Act, or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) be of general or limited application and vary in operation according
to factors stated in the regulation; and
(b) prescribe fines, not exceeding $5 000, for offences against the
regulations; and
(c) prescribe fees or charges in respect of matters under this Act, and
provide for the waiver or refund of such fees or charges; and
(d) make provisions of a saving or transitional nature.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Commissioner or a
specified person or body.
Schedule 1—Transitional
provision
This Act applies to a farm debt (whether or not incurred before or after
the commencement of section 8) in respect of which no enforcement action was
taken before the commencement of that section.