Wagner Nicky: Arbitration Amendment Bill — In Committee 
Wagner Nicky: Arbitration Amendment Bill — In Committee 
[Volume:639;Page:9779] 
NICKY WAGNER (National) 
: 
 I rise to speak to Part 1 of the Arbitration Amendment Bill. It deals with two major issues: confidentiality and consumer arbitration agreements. Because arbitration is usually for private commercial or contractual disputes confidentiality is one of arbitration’s major attractions and some amendments were needed here. There is now a new definition of “confidential information”. Confidential information covers information relating to arbitral proceedings and any award made in those proceedings and it includes statements pleadings submissions and other information. It also includes evidence whether written or oral any notes concerning that evidence and the awards and the rulings of the arbitral tribunal. 
 Part 1 also includes new default provisions concerning privacy in that an arbitral tribunal must conduct proceedings in private and only persons who have some connection with the process are normally allowed to attend a hearing unless the parties agree otherwise. Both those provisions really only confirm existing practice. Parties to arbitration agreements must not disclose confidential information except in certain specific circumstances. Those circumstances are listed and they include disclosure to a professional or other adviser of any party or when required to do so by court order or subpoena. 
It is also possible for an arbitral tribunal and the High Court to make an order to allow disclosure of confidential information under limited circumstances. In the case of the High Court that can be done only if the court can be satisfied that in the particular case the public interest in preserving confidentiality is outweighed by other considerations. The High Court can also make an order prohibiting disclosure. In a restatement of the open justice principle the court must conduct all proceedings under the Act in public unless the court makes an order to do so in private. The bill also details under what conditions the court can make an order for confidential proceedings and the effects of any such order. It should be noted that those are all default provisions and that if the parties agree to other conditions in writing the default provisions do not apply. 
Part 1 also focuses on the consumer and on consumer arbitration agreements. The bill includes specific provisions that apply when one party is in trade and the other party is a consumer. The Act recognises that at times arbitration provisions can work to disadvantage the consumer so the bill seeks to protect the genuinely uninformed consumer. With that in mind I point out that the word “consumer” has also been redefined. In the past the definition was broad and it included schools churches and local authorities. With the present changes a consumer is an individual who is not in trade and that makes good sense. 
The existing law allows arbitration to be used only if the consumer signs a separate agreement agreeing to arbitration at the same time as the contract is entered into. That has become a routine and more often than not the consumer gives it very little thought. The bill now provides that consumers are allowed to decide whether they want to agree to arbitration after a dispute has arisen. So arbitration can proceed only if both parties agree. I believe that is the best course of action because having two willing parties to an arbitration will improve the success rate of the process. To do this there has to be a further technical tweak which removes the jurisdiction of the disputes tribunal where a consumer and a business enterprise execute an arbitration agreement. Thank you.