Community Justice Centres Act 1983

The legislation casts a wide net across several distinct classes of persons and entities.

First, members of the public who are in dispute on any matter (s 4(3), s 22(3)) may access mediation services. The Act is deliberately broad: disputes need not be justiciable or already before a court (s 22(2)), and “dispute” exists whenever parties are not in agreement, even during ongoing negotiations. Neighbours, family members (outside domestic violence), business partners, consumers and tenants are typical users.

Second, courts and tribunals are affected by s 20A. Once a court or tribunal refers a dispute for mediation under another Act or statutory rule, the Director may accept or decline the referral. If accepted, the statutory machinery of the Community Justice Centres Act overlays the referring legislation, subject only to limited exceptions. The Director must report the outcome in writing (s 20A(5)) or, if declining, give written reasons (s 20A(6)). This creates a direct interface between the justice system and the Centres.

Third, mediators—whether the Director or persons appointed under s 5—are central. They must take the statutory oath or affirmation (s 29(1)), are subject to strict secrecy obligations (s 29(2)), enjoy privilege and immunity (ss 27, 28), yet carry a mandatory child-protection reporting duty (s 29A). Their appointment, term, remuneration, vacation of office and removal are all regulated (ss 5–8). Mediators may conduct sessions alone or with others, may exclude disruptive non-parties (s 21(5)), and may terminate sessions (s 24(2)).

Fourth, the Director of Community Justice Centres occupies a pivotal statutory office. The Director is responsible for service provision and Centre management (s 20(1)), decides which disputes to accept (ss 20(3), 24(1)), assigns mediators (ss 20(2), 20A(3)), may issue binding determinations on classes of disputes (s 22(1)), may delegate functions (s 13), may establish advisory committees (s 13A), and must ensure records are kept for ministerial evaluations (s 26(2)). The Director also exercises the protective functions in ss 27–29.

Fifth, staff of the Centres and members of advisory committees are brought within various protections and obligations. Staff are employed under the Government Sector Employment Act 2013 (s 11) and may receive delegated authority from the Director (s 13). Advisory committee members, who need not be staff, may be paid and hold office on terms determined by the Minister (s 13A(5)).

Sixth, the Secretary of the Department of Justice is the appointing authority for mediators (s 5), determines their remuneration (s 7), may remove them (s 8(2)), and is the recipient of resignations and certain statutory notices.

Seventh, the Minister may commission evaluations (s 26(1)) and determines remuneration and terms for advisory committee members (s 13A(5)).

Eighth, other ADR providers, legal practitioners, academics and courts are indirectly affected by the statutory object in s 3(d) which requires the Centres to “contribute to the development of alternative dispute resolution in New South Wales by entering into connections and partnerships” with them. The Act therefore contemplates systemic collaboration rather than isolated service delivery.

Finally, children at risk are protected through the mandatory reporting gateway in s 29A, which overrides the ordinary confidentiality regime when a mediator forms the requisite suspicion during mediation work.

Duties fall most heavily on mediators and the Director. Mediators must take the oath or affirmation before exercising functions (s 29(1)) and are under a positive duty to report suspected significant harm to a child (s 29A). The Director must ensure proper records for evaluation (s 26(2)), provide written reports or reasons on mandatory referrals (s 20A(5)–(6)), and may be required to justify decisions under s 22(1) classifications. All persons administering the Act are subject to the strict disclosure limits in s 29(2).

Rights are primarily those of parties to mediation. They enjoy a statutory right to voluntariness (s 23(1)–(2)), to be accompanied or represented (s 21(4)), to withdraw at any time, and to insist that any agreement is unenforceable unless they expressly agree otherwise in writing (s 23(3)). Parties also benefit from the inadmissibility rules in s 28(4)–(5) and the defamation privilege in s 28(2). They may consent to disclosure or to admissibility of evidence, thereby controlling the confidentiality envelope.

Mediators, the Director and staff possess statutory immunities under s 27(1) for good-faith acts or omissions. Police and other officers have a defence to claims arising from reasonable decisions not to prosecute matters that have been mediated (s 27(2)). Mediators enjoy the same protection from prosecution for misprision of felony as if the information had been obtained in the ordinary course of their duties (s 28(7)).

The Director holds significant discretionary rights: to accept or decline disputes (including mandatory referrals), to assign mediators, to exclude non-parties, to terminate sessions, to delegate, and to establish advisory committees. The Secretary’s right to remove mediators at any time (s 8(2)) is unfettered by procedural fairness language in the statute itself, although general administrative law principles would apply.

The Act also creates a right for the Minister to commission evaluations and, implicitly, for the public to expect that Centres will not be falsely represented by unauthorised entities (s 19).

The Act is unusual in that it creates no conventional criminal offence provisions carrying monetary penalties or imprisonment. Instead, enforcement operates through a combination of civil prohibitions, statutory immunities, inadmissibility rules and administrative sanctions.

The most direct sanction is found in s 19. Use of the protected name or letters “Community Justice Centre” or “CJC” without authorisation, or any title or description that could lead a person to infer the user is a mediator under the Act, is prohibited. Although the section does not prescribe a specific penalty, breach would expose the offender to injunctive relief by the Director or the Secretary and potentially to actions for passing off or misleading conduct under the Australian Consumer Law. The prohibition is deliberately wide, extending to any “substantially the same” words or letters (s 19(2)).

Non-compliance with the secrecy oath or affirmation (s 29(1)) could found disciplinary action against an appointed mediator, including removal under s 8(2). Unauthorised disclosure in breach of s 29(2) would expose the person to civil suit for breach of statutory duty or equitable confidentiality, although the statute itself does not create a specific offence.

Failure by a mediator to report a child at risk under s 29A would breach the mandatory duty imported from the Children and Young Persons (Care and Protection) Act 1998 and could expose the mediator to professional censure or, in extreme cases, criminal liability under that Act’s reporting regime.

The Director’s decisions to accept or decline disputes, assign mediators, or classify disputes under s 22(1) are administrative decisions amenable to judicial review. Similarly, removal of a mediator under s 8(2) must observe procedural fairness despite the absence of express statutory procedural requirements.

Enforcement of mediation agreements is expressly limited: they are unenforceable unless the parties have agreed in writing that they shall be enforceable (s 23(3)). This provision reverses the ordinary common-law presumption and places the onus on parties who desire court enforceability to record that intention contemporaneously.

The Community Justice Centres Act 1983 is not a standalone code; it is expressly designed to mesh with other legislation.

Most obviously, s 20A creates a gateway for mandatory mediation ordered under any other Act or statutory rule. Once a matter is referred, the provisions of the referring Act continue to apply except to the extent they are inconsistent with s 20A(3) or the core provisions of the Community Justice Centres Act (other than s 23(1) and (3)). This produces a complex hybrid regime in which, for example, costs consequences under the Civil Procedure Act 2005 for failure to participate in good faith may still operate even though voluntariness under s 23(1) is disapplied.

The Act cross-references the Government Sector Employment Act 2013 for staff employment (s 11) and for the inapplicability of that Act to mediator appointments (s 5(2)). Remuneration decisions by the Secretary are therefore made within the GSE framework.

Child-protection obligations are imported wholesale from the Children and Young Persons (Care and Protection) Act 1998 via s 29A. A mediator’s reasonable suspicion of significant harm triggers the s 24 reporting duty under that Act, and the exemption in s 27(5) for domestic violence offences cross-references the Crimes (Domestic and Personal Violence) Act 2007.

Privilege under s 28 is modelled on, but not identical to, the without-prejudice privilege at common law and the statutory privileges in the Evidence Act 1995 (NSW). The Act’s privilege is both broader (covering defamation) and narrower (limited to sessions and preparatory documents) than the Evidence Act privileges. Section 28(6)(c) expressly permits evidence of the fact and substance of an enforceable agreement, creating a statutory exception not found in the general without-prejudice rule.

The Act interacts with the Supreme Court Act 1970, District Court Act 1973 and Local Court Act 2007 through the court-referral mechanism. It also sits alongside the Legal Profession Uniform Law insofar as legal practitioners may represent or advise parties at mediations and may themselves be appointed as mediators.

Transitional provisions in Schedule 4 ensure continuity with the repealed Community Justice Centres (Pilot Project) Act 1980, preserving accrued rights, delegations and confidentiality obligations.

Finally, the regulation-making power in s 31(2)(b) expressly contemplates fees for mandatory mediation even where the referring legislation is silent, illustrating the legislature’s intention that the Centres’ financial model can operate independently of the source of the referral.

Although the Act is titled 1983, its modern form is the product of two major amending statutes: the Community Justice Centres Amendment Act 2007 and the Community Justice Centres Amendment Act 2010, together with minor machinery amendments in 2015 consequent on machinery-of-government changes.

The 2007 amendments were the most transformative. They repealed the old Community Justice Centres Council, inserted the current expanded object in s 3 (adding training, promotion of ADR, and partnership functions), introduced the mandatory mediation provisions in s 20A, added the Director’s power to seek external advice (s 13A), modernised the Centre’s administrative status (s 18), strengthened the name-protection offence (s 19(1A)), revised the privilege and secrecy provisions to accommodate enforceable agreements, and inserted the mandatory child-at-risk reporting obligation (s 29A). These changes reflected a policy shift from viewing the Centres as a simple community mediation service to positioning them as a sophisticated, court-integrated arm of the justice system capable of handling referred matters and contributing to systemic ADR development. The 2007 Act also updated the regulation-making power to allow fees for mandatory mediation.

The 2010 amendments further refined the scheme. They rewrote the mediator appointment and employment provisions (new Division 1 of Part 2), substituted new staff provisions (s 11), repealed spent sections, clarified that the voluntariness rule does not apply to mandatory referrals, adjusted the privilege exceptions, and updated the oath and affirmation forms in Schedules 2 and 3 to remove gender-specific language and modernise terminology. The 2010 changes were largely technical but ensured the legislation aligned with contemporary public-sector employment structures and with the Children and Young Persons (Care and Protection) Amendment Act 2010 which had altered the “significant harm” test.

The 2015 amendments were purely consequential on the creation of the Department of Justice and the passage of the Government Sector Employment Act 2013. They replaced references to the Director-General of the Department of Attorney General and Justice with “Secretary” and updated cross-references.

These amendments were driven by three policy imperatives: (1) integration of the Centres into the mainstream court system to reduce litigation backlog; (2) alignment with contemporary child-protection obligations following high-profile inquiries; and (3) modernisation of public-sector governance and employment law.

Because the Act’s privilege and confidentiality provisions are robust, reported case law is relatively sparse. Nevertheless several themes emerge from the decided cases that cite the Act.

First, courts have consistently upheld the inadmissibility rules in s 28(4)–(5). In disputes where a party has sought to tender a mediation agreement or notes, judges have refused admission unless the strict conditions of s 28(6) are met—namely, all parties consent or the evidence is tendered solely to prove the existence and substance of an expressly enforceable agreement. Attempts to characterise mediation communications as falling outside the statutory definition have generally failed where the communications occurred during a session conducted by an appointed mediator.

Second, the interaction between s 20A and referring legislation has produced procedural litigation. Questions have arisen whether a court’s power to order costs against a party who fails to participate in good faith survives the statutory disapplication of s 23(1). The prevailing view is that the referring Act’s costs sanctions continue to apply unless they are directly inconsistent with the Community Justice Centres Act.

Third, the mandatory reporting obligation in s 29A has generated ethical debate within the mediation community. Some mediators argue that the duty chills full and frank disclosure by parties who fear child-protection consequences. The statute itself provides no exemption for information disclosed in confidence; once the reasonable suspicion threshold is crossed, reporting is mandatory. No appellate decision has yet tested the precise boundaries of “reasonable grounds to suspect” in the mediation context.

Fourth, the immunity provision in s 27(1) has been invoked successfully in suits against mediators for alleged negligence or bias. Courts have read “good faith” broadly, requiring plaintiffs to demonstrate absence of an honest belief that the act was within power. The provision has largely insulated the Centres from the wave of professional liability claims that have affected private mediators.

Controversies have also arisen around the Director’s power to decline mandatory referrals (s 20A(2)). Critics argue that the power undermines judicial authority, while the Department maintains that Centres must retain capacity to refuse matters that are unsuitable for mediation (for example, where there is a gross power imbalance or safety risk not caught by domestic violence exclusions). No reported case has yet invalidated a Director’s refusal.

Finally, the name-protection provision in s 19 has been used administratively to require private dispute-resolution firms to cease using “Community Justice” or “CJC” branding. There has been no reported superior-court litigation on the scope of “calculated to lead a person to infer” in s 19(1A), leaving a degree of uncertainty for hybrid organisations that offer both statutory and private mediation.

Most practitioners underestimate the breadth of the statutory definition of “mediation” and “mediation session”. Because s 4(1) includes “the undertaking of any activity for the purpose of promoting the discussion and settlement of disputes”, “the bringing together of the parties”, and “the follow-up of any matter”, preliminary telephone calls, shuttle negotiations and post-settlement compliance discussions all attract the full privilege and secrecy regime. Many lawyers inadvertently create privileged documents without realising they have triggered the Act.

The interaction between s 23(3) and common-law contract principles is another trap. Even if parties sign a detailed settlement agreement at the end of a mediation session, that agreement remains unenforceable unless the parties have separately recorded in writing that they intend it to be enforceable. The statute overrides the ordinary objective theory of contract on this point. Compliance professionals should therefore include an express “enforceability election” clause in every mediation agreement template used at Centres.

Section 20A(4)(b) contains a subtle double-negative that is frequently missed. The provisions of the referring Act “apply … except to the extent to which they are inconsistent with subsection (3) or the other provisions of this Act applied by paragraph (a)”. This means that some costs sanctions or procedural rules in the referring legislation may be displaced without the parties or even the referring judge realising it. In particular, any rule that would treat the mediator as an officer of the referring court may be inconsistent with the Director’s assignment power in s 20A(3)(a).

The mandatory reporting obligation in s 29A is not limited to disclosures made by a party. If a mediator forms the requisite suspicion from anything said or observed “during the course of or from the mediator’s work as a mediator”, the duty is engaged. This can include inferences drawn from body language, documents produced, or statements made by support persons. Mediators must therefore maintain a low threshold for suspicion and have clear internal protocols for discharging the s 24 reporting obligation without breaching s 29 secrecy more than necessary.

Finally, the immunity in s 27(1) protects only “good faith” acts. The statutory language does not extend to gross negligence or wilful blindness. In an era of increasing mediator accreditation standards, a mediator who consistently fails to follow the Director’s procedural guidelines may find that a court narrows the scope of “good faith”, exposing them personally. The Act’s exoneration is therefore not a blanket indemnity; it demands diligent adherence to process.

The transitional provisions in Schedule 4 are not merely historical curiosities. Clause 15 preserves the secrecy obligations for information obtained under the 1980 pilot Act. In long-running disputes that have been mediated multiple times since the 1980s, practitioners must be alert to the possibility that older communications remain protected under the transitional regime even if the current mediation is conducted under the post-2007 rules.

Compliance begins with process. Any organisation referring clients to a Community Justice Centre should obtain the Director’s written consent before treating a matter as accepted (s 20(3)). Where a court referral is contemplated, draft orders should expressly note that the mediation will be conducted under the Community Justice Centres Act and should identify whether the parties have agreed that any resulting agreement will be enforceable.

Mediators must, without exception, take the oath or affirmation in the form prescribed by Schedules 2 or 3 before conducting their first session. The oath should be administered by a justice of the peace and the original retained on file. Failure to do so means the mediator has not validly “commenced to exercise the functions of a mediator” (s 29(1)), potentially invalidating privilege claims.

All participants should be given a clear written explanation of the confidentiality regime before the first session. The explanation must disclose the six exceptions in s 29(2), the mandatory child-protection reporting obligation, and the limited circumstances in which evidence may become admissible under s 28(6). Written consent to any proposed referral to another agency (s 29(2)(d)) should be obtained contemporaneously.

When drafting mediation agreements, include an express clause stating: “The parties agree that any agreement reached at or drawn up pursuant to this mediation session is to be enforceable in accordance with s 23(3) of the Community Justice Centres Act 1983.” Absent that language, the agreement is statutorily unenforceable.

Organisations operating internal ADR programs that might be confused with statutory Centres must avoid any use of the words “Community Justice Centre”, “CJC”, or any substantially similar branding (s 19). Internal guidelines should prohibit staff mediators from using titles that could lead a reasonable person to infer they are appointed under the Act.

Records must be kept in a form that enables ministerial evaluation (s 26(2)). This includes attendance records, outcome statistics, and anonymised data sufficient to assess effectiveness. However, those records must not contain material that would identify individuals without consent if used for research (s 29(2)(e)).

Where a mediator forms a suspicion of significant harm to a child, the report under the Children and Young Persons (Care and Protection) Act 1998 must be made “as soon as practicable”. Internal policies should prescribe a maximum 24-hour window and a requirement that the report identify that it arises from a mediation session so that the receiving agency understands the sensitivity of the source.

Finally, all delegations, appointments and advisory committee terms should be documented in writing. The Director’s power to revoke delegations (s 13(1)) should be exercised expressly and communicated to both the delegate and relevant staff. Regular audits of mediator appointments against the vacancy triggers in s 8 are advisable to avoid arguments that a mediator’s actions were ultra vires.

By treating the Act as an integrated code rather than a collection of isolated mediation rules, practitioners can harness its protections while avoiding the procedural and ethical pitfalls that have ensnared the unwary.