COMMUNITY JUSTICE CENTRES AMENDMENT BILL 2010
The Hon. PENNY SHARPE
(Parliamentary Secretary) [10.26 p.m.], on behalf of the Hon. John Hatzistergos: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated into Hansard
The Hon. DAVID CLARKE
Community justice centres (CJCs) have been providing a valuable dispute resolution service to the community for over 25 years.
CJCs are wholly funded by the government, provide free mediation and conflict management services to help people across NSW resolve their disputes without having to go to court.
The mediation process is one in which trained mediators assist those in dispute to resolve the issues between them. The mediator is impartial, has no advisory or determinative role, but rather facilitates discussions between disputants to help them come up with their own solutions.
CJCs mediators assist with a whole range of disputes, including disputes between neighbours, disputes within families, civil and small claims matters and business disputes.
In 2009-10 NSW CJCs opened files in relation to almost 5,000 disputes, up more than 60 per cent from 3,000 in the previous year.
In the same year the centres conducted a total of 1,725 mediations.
Over 80 per cent of mediations resulted in an agreement being reached.
I am sure honourable members will agree that is an impressive track record.
There is no secret to the success of this scheme—people who engage in mediation are more committed to the outcome because they take part in the decision-making process.
In 2009, recognising the increasing importance of alternative dispute resolution, the Department of Justice and Attorney General established an Alternative Dispute Resolution [ADR] Directorate.
The role of the Alternative Dispute Resolution Directorate is to encourage the greater use of alternative dispute resolution in New South Wales.
CJCs now come under the umbrella of the Alternative Dispute Resolution Directorate.
The reforms before the House today were developed following an internal review of the Community Justice Centres Act by the Alternative Dispute Resolution Directorate in consultation with community justice centre mediators and parties who use the service.
The Community Justice Centres Amendment Bill 2010 introduces amendments that will update and further improve the operation of the Community Justice Centres Act 1983 and provide a better framework for community justice centre mediators to operate under the new National Mediator Accreditation System. Additionally, the bill also repeals the Community Justices Centres Act 2007. The 2007 amending Act contains a number of un-commenced provisions, some of which have now been incorporated into the bill before the House.
Engagement of mediators
I will begin by outlining the proposed amendments relating to the service of CJC mediators.
Currently, the Community Justice Centre Act provides that community justice centre mediators are accredited by the Minister on the recommendation of the community justice centre director for terms of up to three years. The Minister determines their remuneration.
The Community Justice Centres Amendment Act 2007 provided for the repeal of these arrangements and for community justice centre mediators to be made employees under the Public Sector Employment and Management Act 2002.
The 2007 amendments were aimed at clarifying the employment relationship of mediators and enabling the appropriate supervision and assessment of mediators to ensure continued delivery of quality service. However, these amendments were never commenced.
In 2010 the role of community justice centres in supervising and managing its mediators is not at issue. With the introduction of the national mediator accreditation system, it is clear that accreditation needs to be supported by a legislative scheme that accords with that system and permits flexibility in appointment, conditions and pay.
Accordingly, the bill introduces a new legislative framework for the appointment of community justice centre mediators.
This is based generally on that successfully used for youth justice conference convenors under the Young Offenders Act 1997, forum sentencing facilitators under the Criminal Procedure Regulation 2005 and the NSW Consumer, Trader and Tenancy Tribunal.
The bill provides for:
The appointment of mediators by the Director General of the Department of Justice and Attorney General on the recommendation of the director of community justice centres
The appointment of mediators as independent contractors for renewable terms of up to three years
The determination of mediators' remuneration and allowances by the director general from time to time on the recommendation of the director of community justice centres
The removal of mediators from office by the director general or in other circumstances, such as where they are convicted of an offence punishable by 12 months imprisonment or become a mentally incapacitated person.
The bill also clarifies the status of mediators and the director and staff of community justice centres under the Public Sector Employment and Management Act 2002.
The proposed new arrangements will result in a transparent and workable system that is more adaptive as developments arise in the alternative dispute resolution area.
Community justice centres are currently transitioning their mediators to national accreditation under the national mediator accreditation system.
The new legislative arrangements will better support this process and allow community justice centres to accredit their mediators in line with the national standard and engage them in a manner which is consistent with other equivalent schemes across New South Wales.
Other proposed amendments provided for in the bill will enhance the operation of the Community Justice Centres Act and the services provided by community justice centres.
Court ordered mediation
The bill contains a number of amendments aimed at clarifying and modernising the Community Justice Centre Act with regard to court ordered mediation.
The bill amends the Community Justice Centres Act to clarify that community justice centres can now carry out mandatory court-ordered mediations.
The bill also amends the Community Justice Centres Act so that, where there are no secrecy, privilege and liability provisions in the legislation under which the court-referred mediation was ordered, the protections and privileges under the Community Justice Centres Act will apply.
Further, where there are secrecy, privilege and liability provisions in the referring legislation and those provisions conflict with those in the Community Justice Centres Act, it is proposed that, consistent with the approach taken with the rest of the legislation, the provisions of the Community Justice Centres Act will also prevail.
This approach achieves simplicity.
It will mean that community justice centre mediators will generally enjoy the same rights and obligations when carrying out their functions, irrespective of how a dispute has been referred to them.
It will also ensure the specific requirements of community justice centre mediators are accommodated; for example, community justice centre mediators need the exception to the secrecy provisions contained in the Community Justice Centres Act in order to enable them to make the requisite mandatory reports to Community Services for child protection purposes.
Attendance of non-parties and agents at CJC mediations
The Community Justice Centres Act provides that a mediation session is to be conducted in private, but non-parties may be present or participate in a mediation session with the permission of the director.
The director's approval is also required in order for a party to be represented at a mediation session by an agent.
The bill removes these outdated restrictions on the conduct of mediations.
The Community Justice Centres Act already provides that the procedure for commencing and conducting a mediation session is to be determined by the director.
The bill nevertheless provides that the director or individual mediators will be able to exclude a person from attending, or continuing to attend a mediation, if, in their opinion, the presence of the person may frustrate the purpose or conduct of the mediation session.
This will safeguard the proper conduct of mediations.
Removing the prohibition on the adjudication or arbitration of disputes
The Community Justice Centres Act presently provides that a dispute may not be adjudicated or arbitrated upon at a mediation session.
The bill removes this restriction.
Community justice centre mediators will continue to do what they do best, which is mediation. It is not intended that community justice centre mediators become arbitrators.
However, the amendment contained in the bill removes any uncertainty about the ability of community justice centres to provide their conflict management services, including those with a directive element.
For example, community justice centre mediators since the inception of the service have provided dispute resolution and conflict management services relating to disputes in Aboriginal communities in rural areas. These disputes may involve several families and a considerable number of individuals, and are more directive than the conventional mediation process.
Removing the prohibition merely confirms the validity of community justice centre mediators to carry out these types of processes, and is for the avoidance of doubt.
The Chief Magistrate has advised that he supports the removal of this prohibition, as it will promote alternative dispute resolution services and provide greater certainty to participants in such processes.
Enforceability of mediation agreements
At present, the Community Justice Centres Act expressly provides that agreements reached at community justice centre mediations are not enforceable in any court, tribunal or body.
The Chief Magistrate has advised that he supports also the removal of this prohibition.
The National Alternative Dispute Resolution Advisory Council also supports this view.
The restriction is anomalous in contemporary alternative dispute resolution law and policy.
One of the principal objectives of mediation is to enable parties to avoid litigation. Enabling parties to reach enforceable agreements at mediation assists in achieving this objective.
The bill therefore amends the Community Justice Centres Act to remove this restriction. Should parties wish to make an enforceable agreement, they will be able to do so at the community justice centre mediation.
Statutory protections such as those provided by the Trade Practices Act 1974 and the Fair Trading Acts in relation to misleading and deceptive conduct, and the protections available in cases of unfair contracts will, of course, continue to apply.
As a consequence of this amendment, the bill also provides that, where the parties have agreed that an agreement reached at mediation is to be enforceable, evidence can be given before a court or tribunal to enforce such an agreement.
Updating the mandatory reporting threshold for CJC mediators
As previously mentioned, community justice centre mediators have a mandatory duty in relation to reporting children at risk of harm.
Legislative amendments introduced following the Special Commission of Inquiry into Child Protection Services in New South Wales (the Wood inquiry) raised the threshold for mandatory reports to Community Services.
As a result, rather than making a report where there is a reasonable suspicion of a risk of harm, the relevant parts of the care legislation now refer to "a risk of significant harm".
The bill updates the mandatory reporting obligation for community justice centre mediators consistent with this new standard.
Ensuring admissibility where a mandatory report has been made
Community justice centre mediations are generally privileged and confidential.
The Community Justice Centres Act provides that evidence of anything said or of any admission made in a community justice centre mediation session is not admissible in any proceedings before any court, tribunal or body.
Similarly, a document that has been prepared for the purposes of a mediation session, or produced in the course of a community justice centre mediation session, is not admissible in evidence in any proceedings before any court, tribunal or body.
However, these provisions do not apply where the parties to the mediation consent to admission of the evidence or document.
The privilege and secrecy provisions also do not apply where proceedings have been instituted in relation to which a disclosure has been made on the basis that it is necessary to prevent harm to another person or damage to any property.
However, there is some doubt over whether evidence or documents from a mediation session would be admissible in care proceedings where a mediator has made a mandatory report to Community Services that a child is at risk.
The bill therefore amends the Community Justice Centres Act to provide a further specific exception to the privilege and secrecy provisions where a community justice centre mediator has made a report to Community Services as required under the legislation.
Finally, the bill makes a number of minor amendments designed to update the legislation and remove certain anachronistic provisions.
The location of CJCs
As currently framed the Community Justice Centres Act requires that community justice centres and the principal office of a community justice centre must be established at such premises as the Governor may determine by order.
In practice, community justice centre mediations are carried out in a wide variety of locations as needed from time to time, such as on court premises and in community facilities.
It is impractical to require the director to give approval for each specific location and the bill therefore removes these provisions of the Community Justice Centres Act.
While largely technical in nature, the amendments provided for in the bill will help ensure that community justice centres continue to provide high-quality and progressive alternative dispute resolution services to the New South Wales community.
I commend the bill to the House.
[10.26 p.m.]: The purpose of the Community Justice Centres Amendment Bill 2010 is in general terms to enhance and improve the system of dispute resolution within the New South Wales justice system which has developed over the past 25 years or so. Specifically, the bill amends the Community Justice Centres Act 1983 and repeals the Community Justice Centres Amendment Act 2007 so as to provide an efficient system of community justice centre mediation to operate within the overall framework of the new national mediation accreditation system.
It is a bill which Opposition members do not oppose because we support the growth within our justice system of mediation. It results in significant cost savings. It resolves disputes before they reach the courts, thus freeing up our court system for other matters which cannot be resolved and it is a less stressful process for those who are in disputation who avail themselves of its services. For those who find themselves engaged in family disputes or disputes with neighbours or civil disputes generally, it has proved to be a successful alternative to proceeding down a pathway of costly and stressful litigation, and it is a process to which increasing numbers of would-be litigants are turning.
According to government figures, in the year 2008-09 New South Wales community justice centres opened new files relating to 3,000 disputes referred to it, but for the year 2009-10 this number had grown by some 60 per cent, with 5,000 new files being opened in that year. The State Government maintains that 80 per cent of all mediations conducted by the mediation system result in agreement being reached. If these figures are correct the mediation conflict resolution service of the community justice centres needs to be further encouraged and consolidated. This is what the Government tells us that it seeks to do through the Community Justice Centres Amendment Bill 2010.
The Government advises that the changes contained in the bill have been formulated as a result of an internal review conducted by the Alternative Dispute Resolution Directorate in consultation with Community Justice Centre mediators and parties who use the system. The Alternative Dispute Resolution Directorate was itself established in 2009 by the Department of Justice and Attorney General. The principal objects of the bill are:
(a) to provide for the appointment of mediators for Community Justice Centres and the terms and conditions of appointment of those mediators,
(b) to provide that the Director and the staff of Community Justice Centres are to be employed [pursuant] ... to the Public Sector Employment and Management Act 2002,
(c) to provide that a party to a mediation session may be accompanied by or represented by another person but that the Director or the mediator conducting the mediation session may exclude a person from the mediation session in certain circumstances,
(d) to provide that the parties to a mediation session may agree that an agreement reached at, or drawn up pursuant to, the session may be enforceable in a court, tribunal or other body,
(e) to provide that the privilege given with respect to evidence given at, or documents prepared for, a mediation session does not extend to evidence in relation to agreements that the parties have agreed will be enforceable,
(f) to provide that the secrecy requirements that apply to a person exercising functions under the principal Act do not prevent the person from giving evidence in relation to agreements that the parties have agreed will be enforceable, and
(g) to provide that the obligation for a mediator to provide a report under the Children and Young Persons (Care and Protection) Act 1998 applies only if the mediator has reasonable grounds to suspect that a child is at risk of significant harm.
Whilst not seeking to traverse each and every section of the bill, there are some matters to which I will make particular mention. The bill clarifies that mediators, who are to be appointed for a maximum term of three years but maybe reappointed, are not members of the Government service and therefore subject to the Public Sector Employment and Management Act 2002. The Director General of the Department of Justice and Attorney General is responsible for their employment, their removal from office and the level of their remuneration. In contrast however to the position of mediators, the Director of Community Justice Centres and the staff of the centres are employed under the Public Sector Employment and Management Act 2002 and thus are members of the Government service.
The bill provides that matters relating to the provision of mandatory services apply to any dispute referred by a court or tribunal to community justice centres for mediation. It is no longer relevant whether the parties to the dispute have consented to the referral. The current provision that agreements reached at community justice centre mediations are not enforceable in any court or tribunal is removed. Now the parties to such mediation will be able to enter an enforceable agreement. The current threshold at which community justice centre mediators have a mandatory duty to report details of a child at risk of harm is raised from reasonable suspicion of risk of harm to a risk of significant harm. In summary, this bill hopefully will assist in modernising the community justice centre mediation process as a means of dispute resolution. In the circumstances, and as I have indicated earlier, the Opposition does not oppose the bill.
Mr DAVID SHOEBRIDGE
[10.32 p.m.]: On behalf of the Greens I speak on the Community Justice Centres Amendment Bill 2010. The Greens also support this bill, which in general provides a series of practical amendments to the Community Justice Centres Act 1983 that reflect the growing importance of mediation in conflict resolution. It is extremely encouraging that more than 80 per cent of mediations result in an agreement being reached, and that saves the parties from what can be costly litigation in court proceedings. The costly process of litigation proceedings is a matter of which I have some recent experience. The whole practice of mediation is something that the Greens are very willing to support. It will reduce the cost, the time and what can often be substantial emotional stress that parties otherwise face in contested litigation through the court system.
However, the Greens note some modest concern in that the original provision that a dispute may not be adjudicated or arbitrated upon during mediation has been amended. It is understood from the agreement in principle speech in the other place by Mr Collier that the amendment was directed at certain Aboriginal communities in regional areas and special circumstances relating to such mediations. However, this bill makes no such limited application of the clauses or no such reference to special circumstances and, instead, applies to the functioning of all community justice centres.
The Greens see this as potentially weakening the role of mediation in favour of potentially greater arbitration and greater determinative resolutions by the mediators of the community justice centres. Given that mediation has proved so successful to date, the Greens would expect that the Government will monitor the effects of introducing an element of arbitration or adjudication into the functioning of community justice centres. There will be a need to closely monitor the system over the next period, with a view to potentially removing these elements of adjudication and/or arbitration if they are found to be weakening what has always been the primary and positive goal of mediation in community justice centres. I note that there may well be good practical reasons why one would not want a very narrow definition of the role of a mediator in community justice centres. However, removing the primary goal of mediation and allowing these arbitration and adjudication roles are matters of some modest concern to the Greens.
Some concern was also expressed by the Legislation Review Committee about the loss of confidentiality or privilege for the limited basis of enforcing an agreement reached at mediation where the parties have agreed that the agreement will be binding upon them. However, the Greens note that there is a clear public purpose for allowing this limited exclusion of confidentiality and privilege. The Greens note also the narrow scope of the limitations. On balance, accepting that allowing for the enforcement of an agreement and introduction of this evidence to enforce the agreement may in fact lead to far less costly and emotionally stressful proceedings than otherwise fully contesting the whole issue, the Greens support that provision.
Various members of the community have expressed concern that community justice centres themselves require additional resources and funding to properly undertake their tasks throughout New South Wales. In some areas the lack of funds could mean a substantial impediment to parties getting their matters brought before community justice centres in a timely manner. However, that of itself does not detract from the merits and benefits of the bill, which the Greens are happy to support.
The Hon. TONY CATANZARITI
[10.36 p.m.]: I support the Community Justice Centres Amendment Bill 2010. The main focus of community justice centres is to provide mediation services. However, honourable members may not be aware that community justice centres now also provide a range of other services, including advice about resolving or preventing disputes and the use of facilitation in resolving disputes. The Aboriginal and Torres Strait Islander Program is also run through community justice centres. The program provides both mediation and conflict management services to Aboriginal communities across New South Wales.
The Family Violence Prevention Program provides training to community members in conflict awareness, conflict identification and basic conflict management skills. To date, evaluations of the program have been very positive. As it is currently framed, the definition of "mediation" in the Community Justice Centres Act is inappropriately restrictive. The bill amends the definition of "mediation" to remove any uncertainty about the ability of community justice centres to provide the kinds of services outlined. It is not intended that community justice centre mediators become arbitrators and the main focus of community justice centres will remain the provision of mediation services.
The mediators procedure manual will remain unchanged in this regard. It specifically provides that a mediator's role is not to judge and that the objective of the process is to allow people to take responsibility for the resolution of their own problems rather than having solutions imposed on them by a third party. Community justice centres mediators who provide conflict management and other services with a more directive element will continue to be trained in the limits of their role. The amendments simply mean that these kinds of services clearly fall within the ambit of the legislation. I commend the bill to the House.
Reverend the Hon. FRED NILE
[10.39 p.m.]: The Christian Democratic Party supports the Community Justice Centres Amendment Bill 2010, the object of which is to amend the Community Justice Centres Act 1983 in a number of ways. The bill amends the definition of "mediation" so that it applies not only to mediation undertaken at the request of one of the parties to the dispute or the Director of Community Justice Centres but also to mediation carried out in compliance with an order of a court or tribunal. The bill clarifies the employment status of mediators. It states that they are not members of the government service or public service; they are appointed by the Director General of the Department of Justice and Attorney General and hold office for a term of not more than three years. The bill also clarifies that matters relating to the provision of mandatory mediation services apply to any dispute referred by a court or tribunal to community justice centres for mediation. It is no longer relevant whether the parties to the dispute have consented to the referral. Under the legislation, a party to a mediation session may be accompanied by or represented by another person.
The bill provides that an agreement reached at, or drawn up pursuant to, a mediation session is not enforceable in a court, tribunal or other body unless the parties agree in writing that the agreement is to be enforceable. The bill provides special protection concerning a child at risk. It states that if a mediator is obliged to make a report under section 29A of the Community Justice Centres Act 1983 when the mediator believes a child is at risk of significant harm, the evidence of anything said in a mediation session, or a document prepared in relation to the session, is admissible in proceedings instituted in connection with the report. The legislation imposes an obligation on a mediator to make a report under the Children and Young Persons (Care and Protection) Act 1998 if the mediator has reasonable grounds to suspect a child is at risk of harm. I believe that is important in maintaining the utmost protection of children and young people. We support the bill.
The Hon. PENNY SHARPE
(Parliamentary Secretary) [10.42 p.m.], in reply: I thank honourable members for their contributions to the debate and note that there is broad support across the Chamber for the bill. Community justice centres have been an outstanding success story in terms of providing accessible alternative dispute resolution services. Key provisions in the bill remove any uncertainty about the ability of community justice centres to provide conflict management services, such as those with a directive element; remove the restriction on mediation agreements being enforceable, where both parties agree; update the mandatory reporting threshold relating to children suspected of being at risk, in line with the recommendations of the Wood inquiry, and ensure material that is the subject of a mandatory report may be admissible in court proceedings; and bring the provisions relating to the appointment of mediators into line with comparable officers in New South Wales, such as youth justice conference convenors and forum sentencing facilitators.
The bill also makes a number of technical amendments to improve the administration of community justice centres and the handling of mediations referred to community justice centres by the courts. The amendments contained in the Community Justices Centres Amendment Bill update the statutory basis for the provision of services provided by community justice centres and will enable continued flexibility in the provision of these services. I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Leave granted to proceed to the third reading of the bill forthwith.
Motion by the Hon. Penny Sharpe agreed to:
Bill read a third time and returned to the Legislative Assembly without amendment.
That this bill be now read a third time.