Northern Territory Second Reading Speeches

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COMMUNITY JUSTICE CENTRE BILL 2005

Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to provide for the formal establishment and operation of the Community Justice Centre. The centre provides and promotes mediation services as a means of resolving disputes to achieve greater harmony in the community. The centre was established within the Department of Justice in June 2003. Initially, from 2003 to November 2004, it operated as a trial service.

A review of the centre undertaken by the Department of Justice in mid-2004 indicated that there was and overwhelmingly positive response to the centre from the stakeholders, community groups and mediation parties surveyed as part of the review and that there was ongoing active support from the Community Justice Centres’ Consultative Forum for the centre. The review noted the provision of advice on nearly 600 inquiries and mediation for 50 of those in various locations including Darwin, Katherine and Alice Springs. It also considered the establishment of contact mechanisms, promotional material and ongoing outreach program to advertise the centre.

The core aim of the proposed legislation is to facilitate the provision of mediation services for community disputes. Over time, it is anticipated that, for various minor or personal disputes, the legislation will provide an alternate model for dispute resolution. In doing so, the legislation seeks to take pressure off various other government agencies such as police, court and providers of community legal services. The bill does this by creating the Northern Territory Community Justice Centre, a consultative council for the centre and a statutory office of director of the centre. The consultative council for the centre is seen as critical to ensure the proper functioning of the centre. Employment and the financial responsibilities for the centre will be performed by the chief executive officer of the Department of Justice. However, the consultative council will have the key role of making the guidelines and establishing the principles regulating how the director is to provide mediation services. The consultative council will also be responsible for dealing with complaints about the provision of services by the director.

The bill sets out, in clear language, the roles and responsibilities of the minister and the chief executive officer in relation to the centre. The minister may give directions about the general nature of the functions to be performed by the consultative council, but is precluded from giving directions on matters for which the council has an independent role. In keeping with standard principles governing Northern Territory public sector bodies, the chief executive officer of the Department of Justice is responsible for the overall operation of the legislation, thus, the chief executive officer is responsible for approving forms, conducting the reviews, appointing the director and providing an annual report. The details of how the consultative council is to operate are to be largely a matter for the council, subject to regulations that may be made if considered necessary. In line with general principles applied by the Interpretation Act, the terms of membership of the consultative council will be as specified in the instruments of appointment for each member. The director of the centre is to be a public servant and will operate subject to usual principles applicable to public sector employees. However, in carrying out statutory functions, the director will only be subject to the provisions of the act.

There are a number of other important provisions of the bill in respect of the provision of mediation through the Community Justice Centre. Clause 10, subsection 3, provides that mediators must hold qualifications prescribed for the purposes of the act. Initially, it is intended that the current practice will continue to be followed, that is, the director of the Community Justice Centre, subject to any guidelines issued by the consultative council, will have discretion as to the level of qualifications that a mediator requires. However, over time, it is expected that the consultative council or the department may develop formal requirements which could be prescribed by regulation. Secondly, the bill strives to ensure that mediations conducted by the Community Justice Centre are voluntary. The core provisions include: Clause 14, which, in essence, permits any relevant person to terminate mediation proceedings, and Clause 16, which provides that parties may withdraw from a mediation at any time.

The bill does not seek to prescribe how parties to a mediation may reach and enforce any agreement in respect of the outcomes of the mediation. However, clause 16 clearly recognises that parties may reach such agreements and that they will be bound by such agreements.
The bill also provides for confidentiality proceedings and imposes penalties for such breaches. This accords with the general principle that the information obtained by the Community Justice Centre is private information rather than government information.

The bill also provides for the director of the Community Justice Centre to facilitate the adjudication of small disputes in accordance with the Construction Contracts (Security of Payments) Act 2004. That act, which commenced operation on 1 July 2005, has the objective of providing a streamlined process for decision making in respect of the adjudication of most building construction disputes occurring under contracts entered into on or after 1 July 2005. However, industry has signalled that the cost associated with adjudicating disputes may mean that the process is not cost-effective in relation to the resolution of small disputes. Evidence from the operation of similar legislation in New South Wales tends to support that view; that is, for small disputes, the cost of adjudication often represents a significant percentage of the amount that is in dispute. The government has accepted that this is a valid point. Accordingly, this bill provides in effect for a limit on the cost payable by parties to disputes where the maximum amount payable including interest is $10 000. Instead, parties will pay a one-off lodgement fee of $500 to the Director of the Community Justice Centre. The director’s role will be confined to arranging for the appointment and payment of an adjudicator who will then assist the parties in resolving their dispute. In all other respects, the Construction of Contracts (Security of Payments) Act 2004 till continue to apply to small construction industry disputes, in much the same as it applies to all other such disputes. This discreet scheme, including the determination of the size of the lodgement fee payable by the parties, has been developed in direct consultation with Construction Industry Reference Group.

The bill also includes a minor amendment to the Construction of Contracts (Security of Payments) Act 2004 inserting a new section 53A which will require certain information about the construction industry disputes to be provided to the registrar under that act. This will enable the registrar to provide statistical and other information about how the act is working. This statistical information will greatly assist in ongoing monitoring and also in relation to the review of the act, due following its first five years of operation. It is expected that the information to be provided to the registrar will relate to the acceptance, handling, the cost, duration and outcome of disputes and any other prescribed information the registrar may need to be aware in relation to the operation of the legislation.

Finally, clause 45 of the bill provides that part 7 expires on the day after it commences operation. This is a conventional housekeeping provision designed to ensure that the statute book does not contain provisions that are spent. It is necessary because the part 7 provisions will effectively become spent as soon as the Construction of Contracts (Security of Payments) Act 2004 is amended by them.

In conclusion, the bill provides the statutory framework for the operation of a community justice centre and for appropriate levels of accountability, direction and independence.

Madam Speaker, that concludes my explanation of the bill. I table the explanatory statement which accompanies this bill. I commend the bill to honourable members.

Continued from 19 October 2005.

Ms CARNEY (Opposition Leader): Madam Speaker, I can indicate that the opposition will support this bill. However, it is appropriate that we put on the Parliamentary Record a couple of concerns which I hope the minister can address in his reply.

First, we agree with the general objectives of mediation. As someone who was a lawyer in another life, I know that mediation is always the best outcome and certainly cheaper for clients. If you can mediate and resolve a problem it is much better than spending, potentially, hundreds of thousands of dollars in court. It is fairly evident that the matters that the Community Justice Centre deals with will generally be in the order of neighbourhood disputes and so on, although there are a number of other matters.

One concern, Attorney-General, is the perception that by formalising this process with this legislation it will create a bureaucracy. Your response may well be: well, that is inevitable. That concern was brought to us by a person with an interest in this area. I think it was a lawyer but I cannot remember. In any case, we put it to you: are you concerned about the creation of a bureaucracy?

Also, what is the level of resources that you will provide as a result of this bill? Furthermore, what time frame are you looking at as to the commencement? In particular, I say that in regard to the consultative council which you say you will establish. When do you expect that to be up and running? You also referred to a director of the centre and that person is to be a public servant. Again, what sort of time frame do you have for that person's appointment? It is nice to see that someone will get a job as a public servant as a result of this – unlike others who are staring down the barrel.

You also said in your second reading speech that there was a review of the Community Justice Centre undertaken by the Department of Justice. I ask if that was an internal review? If so, will you table that review? It would be interesting to see the findings. We have many documents tabled in this parliament in the nature of annual reports and so on. If you rely on a review that indicated – your word, not mine – that there was an overwhelming, positive response to the centre, I ask whether you would be prepared to table the review so that we can, on behalf of all Territorians, see the details of this so called indication.

We would also like to receive details of the nature, in terms of allocation, of type of matter, that the 600 inquiries to the centre have been in the last 12 months, I gather, although that was unclear from your second reading speech. With respect, Attorney-General, just a little concern - we do not put it any higher than that - that there was not a whole lot of information provided in your second reading speech.

Will it be the case - we assume it is but we would like your confirmation - that the Community Justice Centre will deliver annual reports? That report, of course, can be used by all Territorians as an indicator of the success or otherwise of this project. We look forward to receiving those reports if they are tabled.

I wonder whether you have set a time frame for the review of the centre. I would like to think that you would not just enact this legislation and leave it open-ended from there. I would like to think that there might be a review every two, three, five years. Community Justice Centres are very interesting and I am very supportive of them. It is important that we, as legislators, monitor the results to ensure that the Community Justice Centre achieves the objectives that all of us want. I will not be able to walk into a Community Justice Centre and ask for the figures. However, I am a member of parliament and I do have a constituency to represent. I would be grateful if you would indicate whether you would regularly review the service.

With those comments I conclude. Please note our support, and I would be grateful if you would reply to the specific points I raised.

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I thank the opposition for their support. I would have to say, though, that to be asking for details of the type you are asking, it would have been nice to be able to provide those to you ahead of the debate. We are quite happy to fill you in on the details that you have requested, but it just seems a bit odd to be doing that after we have debated the bill, not before.

Ms CARNEY: A point of order, Madam Speaker! Is the Attorney-General suggesting that the parliament of the Northern Territory is not an appropriate place to ask for information arising from legislation that the Attorney-General brings in to the House? If he is, it is an outrage, it is anti-democratic. How dare you?

Members interjecting.

Madam SPEAKER: Order! Order! There is no point of order.

Ms MARTIN: Madam Speaker, I would just like to briefly respond. While the Opposition Leader is getting hot under the collar, I explain the process of this parliament. We bring the legislation in. It lays on the table of the parliament …

Ms Carney: I have been patronised by experts. You are not even close.

Madam SPEAKER: Order! Leader of the Opposition!

Ms Carney: Don't you explain …

Madam SPEAKER: Order! Leader of the Opposition!

Ms Carney: … the parliament's mechanics. How dare you!

Madam SPEAKER: Order! Leader of the Opposition!

Ms MARTIN: Madam Speaker, I say with all genuineness that we put legislation through a second reading process and, after that time, it is up to members on all sides of the House to get briefings on what that legislation is about. This has been a discussion based on information, rather than the Opposition Leader simply asking: 'Can you answer this question and that question?'. That is what a briefing is about.

Ms Carney: Oh, forgive us!

Madam SPEAKER: Leader of the Opposition!

Ms MARTIN: Madam Speaker, the Opposition Leader can yell and scream, which is her right to do, but there is a process in here. To have the Opposition Leader simply come in …

Ms Carney: And ask a question!

Madam SPEAKER: Order!

Ms MARTIN: … and say: 'Answer all these questions', without a briefing, is not doing her job.

Ms Carney: Oh, rubbish. You have no idea what you are talking about.

Madam SPEAKER: Leader of the Opposition!

Ms Carney: Thank you, Madam Speaker.

Dr TOYNE: Madam Speaker, I will proceed now to deal with some of the issues that the Leader of the Opposition has raised. Are we creating bureaucracy? No, we are not. We are basically normalising the arrangements that already exists within the Community Justice Centre by providing a statutory base for the future operation of the centre and establishing a proper committee to oversee its guidelines of its operation, and the details of its running in regard to matters that may be appealed at the centre. It is simply normalising what is already there. We are not creating something from scratch. The time line, therefore, is fairly swift. Assuming this legislation passes through the parliament, it would be our intention to enact the provisions that are called for in the legislation as quickly as possible.

In terms of the detail of matters at hand, I can provide some information here today. We can run you through the detail of what the centre has been doing to date if you want to make some time for that. The number of inquiries fielded by the Community Justice Centre increased from 540 in 2003-04 to 559 in 2004-05. Initial inquiries resulted in 295 files being opened in 2004-05; that is, an inquiry letter was sent to the party or parties, or mediation was commenced. Neighbour disputes constituted the majority of inquiries, and most matters that went to mediation involved situations where the parties were having trouble negotiating.

There has been an increase in successful mediation of disputes in schools involving teachers, parents, children, or disputes between children. The CJC currently receives most of its inquiries through external referrals with the police continuing to be the major source of referral for clients around the Territory. Fifty-three mediations were conducted by the CJC in 2003-04, with a success rate of 81%. There were 48 mediations in 2004-05, with a success rate of 85%. I hope that will give you at least a picture of what has been happening in the CJC to date.

We review any of our initiatives on an annual basis; it goes into the annual report of the agency apart from other ways that we may take to monitor the operations of any of our working divisions or community initiatives such as the CJC which receive funding from government. You have the opportunity, clearly, of asking some questions of us in the estimates each year. You have an opportunity to look at what is reported through our annual reports and other reporting mechanisms and, of course, you always have the opportunity to ask questions. We will keep an eye on this as we do with all of our initiatives. If there is a need for some more fundamental review of the centre and its operations, we will clearly do that as well.

Motion agreed to; bill read a second time.

 

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