Updates and background for this project (Digest)
6.1 The CJCs Act has put in place a number of protections for those involved in the mediation process, including mediators, the parties to the mediation and referring agencies. These protections have been enacted with the general aim of ensuring that people can take part freely in the mediation process, or encourage others to take part in it, without fear of any legal or other consequences that may arise. When Neighbourhood Mediation Centres were introduced in Victoria in 1987 it was suggested that experience in New South Wales and New Zealand showed that:
mediation will be … less likely to succeed if parties fear that what they say in a mediation session may be used against them in later proceedings or if mediators are free to disclose statements a party may make to a third party.1
Experience in New South Wales and New Zealand was also said to have shown that:
mediators may feel and, in fact, may be compromised if they believe that their activities as mediators may expose them to civil or criminal prosecution.2
The provisions outlined below aim to overcome some of these concerns. The provisions also have implications for the accountability of mediators for their conduct in the course of a mediation. The question of mediator accountability is dealt with in Chapter 7 of this Report.3
EXONERATION FROM LIABILITY
Mediators and other officers and staff of CJCs
6.2 The Act exonerates a number of people from “any action, liability, claim or demand” arising from its execution, so long as they act in good faith. These people include members of the Council, mediators and the Director and staff of CJCs.4 Similar provisions with respect to exoneration were added to the statutes of various courts in 1994 and apply in relation to mediators and neutral evaluators where the courts have referred matters for mediation or neutral evaluation under their respective statutes.5 Queensland has enacted a provision that is, in all essential respects, the same as that in New South Wales.6 Victoria has enacted a broadly similar provision.7
6.3 The appropriateness of the immunity for mediators is the subject of some debate. Arguments in favour of a general immunity include:8
- it allows mediators to act impartially without fear of legal action from either side;
- it ensures finality in mediation in so far as it prevents litigation arising from the process of mediation.
Extent of the protection
6.4 One issue to be considered is the extent of the protection offered. At present the protection exonerates a person from “any action, liability, claim or demand” arising from the execution of the Act so long as they act in good faith. Different coverage is offered in the Australian Capital Territory Act which gives a mediator, acting in good faith, “the same protection and immunity as a judge of the Supreme Court”.9 In some Commonwealth statutes mediators are granted more extensive immunity,10 having “the same protection and immunity as a Judge has in performing the functions of a Judge” but without the “good faith” requirement.11
6.5 However, the interests of participants also need to be taken into account. While it has been noted that the parties are essentially responsible for any outcomes and that mediators should, therefore, not be liable for any mediated agreement or its consequences, it has been suggested that some provision should be made to guard against bad practice:
should there be liability for gross misconduct by a mediator during the mediation process, for procedural aspects of the mediation, or for a breach of ethical obligations, for example failure to deal effectively with power relationships between parties, or even for sexual harassment?12
6.6 NADRAC has proposed that the protections offered by immunity provisions be reduced in favour of increased consumer protection. It has suggested that the immunity provisions should only be available to providers with an appropriate code of practice in place. Such a code of practice would include a mechanism for consumer redress.13 One submission suggested that mediators should be liable for breach of contract (for example, where the contract is not to give advice or to breach confidentiality) or bad faith.14 However, the Commission has received no evidence to suggest the need to change the current provisions. The question of consumer input and redress is dealt with in Chapter 7 of this Report.15
Extension to others
6.7 Another question is whether similar protections ought to be extended to the “officers, employees or other staff, of any Department of the Government or of any local or public authority or other organisation” who may be engaged by the Council for the purposes of the Act.16 It is possible that the exoneration already applies to such people since the current protection extends to “a person acting under the direction of or with the authority of, the Council”.17
6.8 One submission suggested a further extension of coverage for people involved with CJCs in a professional capacity but who are not mediators or staff or engaged by the Council, for example Police. This submission also suggested that the “current scope is important because it enables community members to act as mediators without fear of legal action”.18
6.9 Again, the Commission has no basis for suggesting any change to the current provisions in this regard.
Members of the Police Service
6.10 The Act also exonerates members of the Police Service from any liability arising in respect of the referral of a matter to mediation rather than proceeding with charge or prosecution.19
6.11 The provision was inserted at the request of the police authorities who were concerned about laws making it an offence for police officers not to charge persons in certain circumstances.20 The concern would appear to have been in relation to the common law misdemeanours of misprision of felony and compounding a felony (that is, preventing the prosecution of a crime) which have since been replaced in New South Wales by statutory offences of concealing serious indictable offences.21 It has also been said that police were concerned about being charged with false imprisonment if they arrested someone and took them to a CJC instead of to a Justice as was required by law.22 The provision is therefore aimed at encouraging “officers to refer all appropriate cases to mediation rather than using criminal proceedings where they are not appropriate”, for example cases of minor assault where a criminal sanction is “unlikely to resolve a continuing dispute”.23 Queensland has enacted a similar provision.24
Domestic violence offences
6.12 Exoneration of police officers from liability does not extend to domestic violence offences within the meaning of the Crimes Act 1900 (NSW).25 This reflects the policy of the government at the time the Act was passed that all domestic violence offences ought to be brought before the courts.26 Queensland has enacted a similar provision.27
6.13 No submissions were received in respect of the above matters and the Commission can find no basis for suggesting any change to these provisions.
CONFIDENTIALITY
6.14 It has been said that mediation is essentially a private process and that “confidentiality lies at the heart of the mediation process and is one of its defining characteristics”.28 On a more practical level, the personal nature of many disputes brought to CJCs requires the existence of some guarantees of confidentiality for the parties. Such guarantees of confidentiality help to build the community’s trust in CJCs.29 Confidentiality of proceedings was also seen as a positive selling point for CJCs mediations. One submission suggested that confidentiality might be an incentive if parties realised that once a dispute goes to court it enters the public arena.30
6.15 Confidentiality may be provided for in a number of ways, including by way of a confidentiality clause to an agreement to mediate, by codes of conduct for mediators and by legislation.31 The US Model Standards of Conduct for Mediators suggest that a mediator “shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or other public policy”.32 These principles appear to be adequately provided for by the CJCs Act which requires mediators maintain the secrecy of disclosures related to a mediation session.33
6.16 The New Jersey Court Rules make similar provision with respect to confidentiality but add:
No mediator may participate in any subsequent hearing or trial of the mediated matter or appear as witness or counsel for any person in the same or any related matter.34
Such a protection could have the effect of allowing the parties to be completely open in their dealings with mediators, particularly in any pre-mediation sessions conducted by the mediator where each party is allowed to put their position to the mediator in a private session.
6.17 No problem was identified with the CJC confidentiality provisions when they were introduced into other New South Wales legislation in 1994.35
Exceptions to confidentiality
6.18 There are some necessary exceptions to the confidentiality provisions. For example, a mediator or other officer may disclose information “where there are reasonable grounds to believe that disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property” or where the disclosure is “in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth”.36 This would appear to anticipate the availability of other statutes that encourage disclosure, for example, s 316 of the Crimes Act 1900 (NSW) which places penalties on people who fail to disclose the commission of serious indictable offences by others.37 Disclosure is also permitted with the consent of the party from whom the information was obtained.38
6.19 Similar confidentiality provisions have now been introduced for other mediation schemes in various New South Wales courts.39 Queensland and Victoria have enacted provisions similar to those in New South Wales.40 The Australian Capital Territory Act also contains a comparable provision.41 However, it goes further than the New South Wales Act in that it not only allows disclosure when injury or property damage is threatened but also when it is necessary to report the commission or threat of such offences to the appropriate authorities.42
6.20 No significant general concerns were identified in relation to the current provisions.
Consent to disclosure
6.21 In 1994, when the CJC confidentiality provisions were introduced into other New South Wales legislation, the Law Society proposed that disclosure should be permitted with the consent of all parties - not just the party who supplied the information being disclosed. The Law Society in its response to IP 23 again suggested that consent to disclosure must be provided by “every participant in the mediation (including the mediator) and any third party whose interest may be adversely affected by such a disclosure”.43 The proposal was rejected in 1994 for the following reason:
To require ... that all parties must agree to the disclosure would provide a third party who may have no substantive interest in the information with a right to confidentiality that he would not have in the ordinary course of events. That could have the effect of undermining the process of mediation.44
The Commission agrees with this assessment.
Protection of children
6.22 One additional issue is whether any specific acknowledgement should be made of the need to protect children from harm. Some of this will no doubt be covered by the permission to disclose where it is “necessary to prevent or minimise the danger of injury to any person”. However, the special vulnerability of children may necessitate the inclusion of mandatory reporting requirements such as those contained in the Children and Young Persons (Care and Protection) Act 1998 (NSW). If certain people who have professional dealings with children have, in the course of their work, reasonable grounds to suspect that a child is at risk of harm, the Act requires that they report these suspicions to the Director General of the Department of Community Services as soon as practicable.45 Such matters might especially come to the attention of mediators during the mediation of disputes between family members.
6.23 In family law matters the protection of children is specifically covered so that a mediator is required46 to swear or affirm that they will not disclose any communication to them in their capacity as a family and child mediator unless they believe it is reasonably necessary in order:
(a) to protect a child; or
(b) to prevent or lessen a serious and imminent threat to:
(i) the life or health of a person; or
(ii) the property of a person; or
(c) to report the commission, or prevent the likely commission, of an offence involving:
(i) violence or a threat of violence to a person; or
(ii) intentional damage to property of a person or a threat of damage to property; ...47
The Family Law Act 1975 (Cth) also exempts admissions or disclosures about child abuse from the general provisions making inadmissible disclosures made in the context of mediation.48
6.24 In IP 23 the Commission asked whether any list of exceptions to confidentiality should specifically include the protection of children.49 Some submissions supported this suggestion.50
6.25 CJCs opposed any change to the current provisions in s 29(2) of the CJCs Act. One reason for not including any specific reference to the protection of children is that an agreement to mediate in Department of Community Services (“DoCS”) matters includes a specific waiver of confidentiality provisions in relation to information which indicates there is a risk of harm or actual harm to a child or young person.51 DoCS noted that, as a DoCS approved ADR provider, CJC mediators are required to report instances of abuse of children and young people at risk of harm in accordance with Children and Young Persons (Care and Protection) Act 1998 (NSW) s 23 and s 24.52 This would come within the exception in the CJCs Act that allows for disclosure “in accordance with a requirement imposed by or under a law of the State... or the Commonwealth”.53 However, the Commission notes that circumstances giving rise to the need to protect children and young people may come up in the course of mediations other than those referred by DoCS.
6.26 The Commission considers that the protection of children and young people is a sufficiently serious issue that reliance ought not be placed on the application of other pieces of legislation or agreements which are only entered into in the context of particular mediations. Specific reference to the protection of children and young people ought to be made in the CJCs Act.
The confidentiality oath or affirmation
6.27 The Act provides that mediators must swear an oath or make an affirmation of secrecy in relation to disclosures related to a mediation session.54 The confidentiality provisions in other New South Wales statutes dealing with mediation and in some other Australian jurisdictions do not include the requirement of an oath.
6.28 The Commission’s provisional view was that the additional oath provisions in the CJCs Act appeared to be unnecessary to the enforcement of confidentiality and as such, should be removed from the Act. This position was opposed in a number of submissions.55 Reasons for this opposition included that the ceremony of swearing an oath, which usually takes place at a public accreditation ceremony, would:
- reinforce the confidentiality provisions by reminding mediators of their legal and moral responsibility;56 and
- help to make communities, especially smaller regional communities, aware of the confidentiality that attaches to CJC mediation sessions and the importance that it is accorded.57
6.29 Mediators who conduct mediations under the Family Law Act 1975 (Cth) are also required to swear or affirm that they will not disclose any communication to them in their capacity as a family and child mediator, except in specified circumstances.58
6.30 On balance, the Commission can see the value in maintaining the requirement that CJC mediators swear an oath or make an affirmation of secrecy in relation to disclosures related to a mediation session.
PRIVILEGES
6.31 The Act provides that mediation, and any related activities before and after a mediation, are the subject of certain privileges or immunities.
Defamation
6.32 The same privilege with respect to defamation that exists with respect to judicial proceedings also applies to mediations.59 This means that participants in a mediation conducted by a CJC enjoy the protections of absolute privilege.60 Similar provisions were added to the statutes of various courts in 1994 and apply in relation to mediations and neutral evaluations where the matters have been referred by the courts under their respective statutes.61 The Australian Capital Territory Act contains a comparable provision.62
Admissibility of evidence
6.33 Documents prepared in relation to a mediation session, and evidence of anything said or any admission made in a mediation session are “not admissible in any proceedings before any court, tribunal or body”.63 Evidence is, however, admissible, “where the persons in attendance at, or named during, the mediation session and, in the case of a document, all persons named in the document, consent to admission of the evidence or document”.64 Evidence is also inadmissible where there are proceedings arising from a situation where a mediator has disclosed information to “prevent or minimise the danger of injury to any person or damage to any property”.65 These protections are important from a public policy perspective in that they promote and safeguard the processes of mediation undertaken by the CJCs66 and promote a sense of trust and credibility among the Centres’ clients.67 Similar provisions were added to the statutes of various New South Wales courts in 1994 and apply where the courts have referred matters to mediations and neutral evaluations under their respective statutes.68 The Farm Debt Mediation Act 1994 (NSW) also provides that evidence of what was said in a mediation session or in documents prepared for the mediation of a dispute that comes under its jurisdiction is not admissible.69
6.34 A number of issues were raised in IP 23 and in submissions regarding this provision. The issues are somewhat different to those raised in respect of the waiver of confidentiality discussed above, because admissibility in legal proceedings may affect the rights of parties in litigation.
6.35 The threshold question is whether the current provision should be retained, making evidence of anything said or any admission made in a mediation session “not admissible in any proceedings before any court, tribunal or body” but with the current exceptions allowing the admission of evidence in appropriate circumstances. One submission opposed the current provisions in the Act, stating that there should be no circumstances in which it should be possible to allow evidence raised in or in relation to a CJC mediation to be admitted in legal proceedings. The ground for this contention was that mediation is a confidential process.70 Some Commonwealth statutes make no provision for the admissibility of evidence with the consent of any parties.71 This position is, however, unsustainable in a general context, since a blanket ban on the use of such evidence could, in some cases, offend the principle of self-determination of the parties to a mediation if it were contrary to their collective wishes that the evidence could be used.
Exceptions to non-admissibility
6.36 The next series of issues to consider is whether any changes need to be made to the current exceptions to the non-admissibility of evidence. There are two sorts of exception to be considered here: first, those that allow various interested parties to consent to the admissibility of such evidence; and secondly, those that relate to proceedings arising from a situation where a mediator has disclosed information to “prevent or minimise the danger of injury to any person or damage to any property”.72
6.37 Consent to admissibility. One option is to make the requirements for the current exceptions more onerous. One submission suggested that the consent of the mediators should also be required before evidence of what went on in a mediation can be admitted in other proceedings.73 Requiring the consent of the mediators to the admission of evidence may involve an overriding of the will of the parties who may all consent to the admission. Such an overriding can only really be warranted on the grounds of protecting the interests of the parties to the mediation. It is difficult to see why the mediators should have such a continuing protective role once a mediation has concluded. The Commission considers that so long as the mediators adhere to their oath of confidentiality they should have no further role in protecting the interests of the parties to the mediation once the mediation has finished.
6.38 Another possibility is to make some of the requirements for the current exceptions less onerous. For example compared with the provisions in Victoria74 and the Australian Capital Territory,75 the CJCs Act makes it more difficult to get evidence admitted where all the parties to the mediation consent, as it also requires the consent of all persons named in a document to be obtained before the evidence can be admitted.76 No submissions addressed this issue. There is no reason why this additional requirement, involving parties outside the mediation, is necessary in the CJCs Act. The use of such evidence relating to parties other than those who took part in the mediation is a question for the court or tribunal when it considers the relevance of the evidence that is sought to be admitted. This is best left to the discretion of the court.
6.39 Finally, the possibility has also been raised that evidence of mediation proceedings may be admissible in cases where the mediator or one of the parties has engaged in fraud, where there has been a “substantial failure” by the mediator to discharge his or her functions, or where there is an allegation of “very serious misconduct” or that there was effectively no mediation at all.77 There is currently no definite statement of law to support this position. But again there is no demonstrated need for such a provision in the CJC Act. The Commission prefers to leave such matters to the developing common law in the field of mediation.
6.40 Prevention of harm. The CJCs Act currently allows for the admissibility of evidence that relates to proceedings arising from a situation where a mediator has disclosed information in circumstances where the confidentiality provisions have been waived, that is, to “prevent or minimise the danger of injury to any person or damage to any property”.78 These provisions, as currently drafted, will also incorporate the amendments recommended above that will allow for the waiver of confidentiality to ensure the protection of children.79
Concealing a serious indictable offence
6.41 Finally, the Act provides that officers of CJCs are “not liable to be proceeded against for concealing a serious indictable offence without reasonable cause in respect of any information obtained in connection with the administration or execution of [the] Act”.80 It has been suggested that this provision was inserted in the CJC Act to allow serving police officers and justice agency staff to become accredited mediators “without jeopardising their responsibilities under other statutes”.81 There does not appear to be any equivalent provision in other New South Wales statutes.
6.42 Two submissions did not support the provision,82 one of them suggesting that “no one in any organisation that holds public trust and confidence should have such immunity”.83 However, there has been no demonstrated problem with the provision which was inserted for an apparently practical reason. No change is recommended.
FOOTNOTES
1. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 29 April 1987 at 1536.
2. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 29 April 1987 at 1536.
3. See para 7.47-7.48, 7.79-7.93.
4. Community Justice Centres Act 1983 (NSW) s 27(1).
5. See, for example, District Court Act 1973 (NSW) s 164H; Land and Environment Court Act 1979 (NSW) s 61K; Local Courts (Civil Claims) Act 1970 (NSW) s 21S; Supreme Court Act 1970 (NSW) s 110R.
6. Dispute Resolution Centres Act 1990 (Qld) s 35(1).
7. Evidence Act 1958 (Vic) s 21N.
8. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 190-191. See also R Carroll, “Mediator Immunity in Australia” (2001) 23 Sydney Law Review 185 at 205-219.
9. Mediation Act 1997 (ACT) s 12.
10. See H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 189.
11. Federal Court of Australia Act 1976 (Cth) s 53C. See also Family Law Act 1975 (Cth) s 19M.
12. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 191.
13. National Alternative Dispute Resolution Advisory Council, A Framework for ADR Standards (Report to the Commonwealth Attorney-General, 2001) at para 4.28, 4.36.
14. Law Society of NSW, Submission at 10.
15. Para 7.67-7.93.
16. Under Community Justice Centres Act 1983 (NSW) s 8. See NSW, Parliamentary Debates (Hansard) Legislative Council, 26 November 1980 at 3587.
17. Community Justice Centres Act 1983 (NSW) s 27(1)(b).
18. CJCs, Professional Reference Group, Submission at 10; See also CJCs, Submission 1 at 16.
19. Community Justice Centres Act 1983 (NSW) s 27(2).
20. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 26 November 1980 at 3700.
21. Crimes Act 1900 (NSW) s 316. See NSWLRC, Review of Section 316 of the Crimes Act 1900 (NSW) (Report 93, 1999) at para 2.2.
22. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 26 November 1980 at 3701.
23. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.
24. Dispute Resolution Centres Act 1990 (Qld) s 35(2).
25. Crimes Act 1900 (NSW) s 4.
26. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.
27. Dispute Resolution Centres Act 1990 (Qld) s 35(3).
28. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 178.
29. NSW Parliamentary Debates (Hansard) 19 November 1980 at 3149.
30. Registrars, Local Courts, Consultation. It has also been suggested that confidentiality is a reason for commercial disputants sometimes preferring to have matters dealt with by mediation rather than in open court, especially in relation to sensitive areas of their operation: D Spencer and T Altobelli, Dispute Resolution in Australia: Cases, Commentary and Materials (Lawbook Co, Sydney, 2005) at para 8.10.
31. H Astor and C Chinkin, Dispute Resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 178; T Sourdin, Alternative Dispute Resolution (Lawbook Co, Sydney, 2002) at 129-130.
32. US Model Standards of Conduct for Mediators item V.
33. Community Justice Centres Act 1983 (NSW) s 29(1).
34. New Jersey Court Rules 1969 r 1:40-4(c).
35. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
36. Community Justice Centres Act 1983 (NSW) s 29(2)(c), s 29(2)(f).
37. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
38. Community Justice Centres Act 1983 (NSW) s 29(2)(a).
39. By the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW). See, for example, District Court Act 1973 (NSW) s 164G; Land and Environment Court Act 1979 (NSW) s 61J; Local Courts (Civil Claims) Act 1970 (NSW) s 21R; Supreme Court Act 1970 (NSW) s 110Q. See also Legal Aid Commission Act 1979 (NSW) s 60F.
40. Evidence Act 1958 (Vic) s 21M; Dispute Resolution Centres Act 1990 (Qld) s 37 (this section even includes reference to the disclosure of information for evaluation purposes even though that provision is no longer contained in the Queensland Act: Dispute Resolution Centres Act 1990 (Qld) s 34 was repealed by Courts Reform Amendment Act 1997 (Qld) s 35).
41. Mediation Act 1997 (ACT) s 10.
42. Mediation Act 1997 (ACT) s 10(2)(d)(ii).
43. Law Society of NSW, Submission at 10.
44. NSW, Parliamentary Debates (Hansard) Legislative Council, 10 May 1994 at 2144.
45. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27.
46. By Family Law Act 1975 (Cth) s 19K.
47. Family Law Regulations 1984 (Cth) reg 66, reg 67.
48. Family Law Act 1975 (Cth) s 19N. See para 6.33-6.35 below.
49. IP 23 Issue 30(b)
50. Greater Sydney Families in Transition Network, Submission at 8-9; Law Society of NSW, Submission at 10.
51. Department of Community Services, Submission at 2.
52. Department of Community Services, Submission at 1.
53. Community Justice Centres Act 1983 (NSW) s 29(2)(f).
54. Community Justice Centres Act 1983 (NSW) s 29(1).
55. Confidential 2, Submission at 3; CJCs, Submission 1 at 16; Law Society of NSW, Submission at 10.
56. Law Society of NSW, Submission at 10.
57. CJCs, Submission 1 at 16; CJCs, Consultation.
58. Family Law Act 1975 (Cth) s 19K.
59. Community Justice Centres Act 1983 (NSW) s 28(2).
60. NSWLRC, Defamation (Report 75, 1995) at para 11.28-11.29.
61. Supreme Court Act 1970 (NSW) s 110P(1)-(3); Local Courts (Civil Claims) Act 1970 (NSW) s 21Q(1)-(3); Land and Environment Court Act 1979 (NSW) s 61I(1)-(3); District Court Act 1973 (NSW) s 164F(1)-(3).
62. Mediation Act 1997 (ACT) s 11.
63. Community Justice Centres Act 1983 (NSW) s 28(4), s 28(5).
64. Community Justice Centres Act 1983 (NSW) s 28(6)(a).
65. Community Justice Centres Act 1983 (NSW) s 28(6)(b).
66. See AWA Ltd v Daniels (1992) 7 ACSR 463 at 469; Lukies v Ripley (No 2) (1994) 35 NSWLR 283 at 289.
67. NSW Parliamentary Debates (Hansard) Legislative Assembly, 19 November 1980 at 3149.
68. District Court Act 1973 (NSW) s 164F(4)-(6); Land and Environment Court Act 1979 (NSW) s 61I(4)-(6); Local Courts (Civil Claims) Act 1970 (NSW) s 21Q(4)-(6); Supreme Court Act 1970 (NSW) s 110P(4)-(6).
69. Farm Debt Mediation Act 1994 (NSW) s 15(1).
70. Confidential 2, Submission at 3.
71. See Family Law Act 1975 (Cth) s 19N; Federal Court of Australia Act 1976 (Cth) s 53B.
72. Community Justice Centres Act 1983 (NSW) s 28(6)(b).
73. Law Society of NSW, Submission at 11.
74. Evidence Act 1958 (Vic) s 21L. See also Supreme Court (General Civil Procedure) Rules 1996 (Vic) r 50.07(6).
75. Mediation Act 1997 (ACT) s 9.
76. Community Justice Centres Act 1983 (NSW) s 28(6)(a).
77. Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252 at 266; Commonwealth Development Bank of Australia Ltd v Cassegrain [2002] NSWSC 940 at para 12 and 13.
78. Community Justice Centres Act 1983 (NSW) s 29(2)(c), s 28(6)(b).
79. See para 6.22-6.26 above. See also Family Law Act 1975 (Cth) s 19N which exempts admissions or disclosures about child abuse from the general provisions making inadmissible disclosures made in the context of mediation.
80. Community Justice Centres Act 1983 (NSW) s 28(7).
81. CJCs, Professional Reference Group, Submission at 10.
82. CJCs, Submission 1 at 17; Law Society of NSW, Submission at 11.
83. CJCs, Submission 1 at 17.
