CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. Clause 1, page 2, line 3—

Delete "Food Donors and Distributors" and substitute:

Charitable Donations

No. Clause 4, page 2, line 13 [inserted heading to Division 11A]—

Delete the heading and substitute:

Division 11A—Charitable donations

No. Clause 4, page 3, after line 10—

After inserted section 74A insert:

74B—Provision of other goods and services for charitable or benevolent purpose

(1) A person incurs no civil liability for loss of life or personal injury or damage to property arising from the provision of goods or services to another if, in providing the goods or services, the person acted—

(a) without expectation of payment or other consideration; and

(b) for a charitable or benevolent purpose; and

(c) with the intention that the consumer of the goods or services would not have to pay for them.

(2) The immunity extends to the agents and employees of the person providing the goods or services.

(3) However, the immunity does not operate in the following cases:

(a) in the case of goods—if the person knew or was recklessly indifferent to the fact that when the goods left the possession or control of the person they were in a state likely to cause harm to a consumer of the goods or to the property of a consumer of the goods;

(b) in the case of services—if the person knew or was recklessly indifferent to the fact that the services were provided in a manner likely to cause harm to a consumer of the services or to the property of a consumer of the services;

(c) in respect of a liability that falls within the ambit of a scheme of compulsory third-party motor vehicle insurance;

(d) if the ability of the person who personally provided the goods or services was, at the relevant time, significantly impaired by a drug (including alcohol) consumed voluntarily for non-medicinal purposes.

(4) The Minister must, as soon as practicable after the second anniversary of the commencement of this section—

(a) cause a report to be prepared on the operation of this section; and

(b) cause a copy of the report to be laid before each House of Parliament.

(5) This section does not apply to the donation or distribution of food (see section 74A).

(6) In this section—

goods means substances or articles.

Consideration in committee.

The Hon. M.J. ATKINSON: I move:

That the Legislative Council's amendments be disagreed to.

This bill has been amended in another place. The government opposes these amendments. They would reduce the current legal protection of the most vulnerable people in our society without any evidence that it will produce a corresponding benefit. Before doing such a thing, we should hear what the public has to say about it. We should also find out whether, in exchange for these lost protections, proposed to be removed by the Liberal Party, we will gain a large increase in donations of goods and services. At this stage, that is a hypothesis.

What these amendments seek to do is protect anyone who provides goods or services to another person without expecting payment for a charitable purpose as long as the person intends that the consumer should not have to pay for the goods or services. The purported protection would extend to property damages as well as injury or death.

This proposal includes the provision of any goods—motor vehicles, power tools, furniture, building supplies (anything at all)—and also any services. The proposal is that the provider of the goods or services should be liable only for reckless indifference, not for negligence.

The government's bill was introduced after carefully weighing the risks and benefits and after much work to satisfy the South Australian Council of Social Service about its merits. What determined us to do this was that we have reason to think that quantities of safe food are being wasted in South Australia because potential donors fear legal liability. Food is perishable. If a restaurant or a caterer prepares more food than is sold on a given day, the options are either to waste the food or to donate it.

The aim of the bill is to tilt the balance in favour of donation. We looked at the interstate experience and the substantial increase in donation of safe food that has resulted there because of similar laws. We believe that, on balance, it is worth adjusting the standard of care in this field because, since most donors will be businesses that are experienced in handling food, the risk of harm appears low even if the standard of care is reduced.

The detriment of this adjustment will be outweighed by the expected large increase in donations, so we believe. The bill, however, proposes a two-year review to see whether we are right about that. We know that SACOSS will monitor the results of the bill. The government would be most concerned, however, at the entrenchment of a lower standard of care towards the poor right across the board, as proposed by the member for Davenport and the Liberal Party. We would like at least some public consultation.

For example, what about services provided by public hospitals? It is entirely possible that such services are covered by these amendments. The provision of gratis medical care to the public is very likely a charitable or benevolent purpose. Does that mean that the public patient should not expect the same standard of medical care as those who can pay? If the public patient is injured by medical negligence, why should the hospital not be liable? Is that what the Liberal Party really wants?

What about the private school that accepts both fee-paying students and also a small number of scholarship students for whom fees are waived? At present, a school owes a duty to take reasonable care for the safety of all its students. Why should it not have to take the same care for scholarship students as for those who pay?

Consider the mechanic who, for no fee, services a vehicle used by a charity. Should he not have to take just the same care as he does for his paying customers? The only justification for creating these risks could be if we were confident that the immunity would lead professionals and traders to donate many more services. As yet, we do not have the evidence that they will.

Do we really expect that public hospitals will provide more medical services if we pass this bill; that schools will offer more scholarships; that plumbers, carpenters, painters and builders will start setting aside more time to provide free services to the disadvantaged? Well, perhaps they might, but we just do not know, because no work has been done to find out. Services, by their very nature, are unlikely to be wasted.

An unfilled appointment is, for most professionals, an opportunity to catch up on other work rather than time likely to be given away or wasted. The shelf life of imperishable goods is indefinite and, if a trader has ordered in a large quantity, it is a matter of waiting for the items to sell or perhaps discounting them or returning them to the supplier, depending on the terms of trade. Where, then, is the evidence that donations of goods and services will increase so substantially that it is worth lowering the standard of care? How do we know that it is fear of legal liability that is the real barrier to donation of these goods?

We just do not know that and, before proceeding with a measure like this, we should take the trouble to find out. That is what good legislating is about. It is not about a smart alec amendment tacked onto a government bill for the purposes of issuing a press release. Keep in mind that many of these traders will carry insurance that might well cover all of the services they provide in the course of their business, whether or not they are paid for.

For example, the private school's insurance almost certainly covers the fee-paying students and the scholarship students equally. In that case, all this amendment does is shift the loss caused by the service providers' negligence from an insurer, who has taken a premium to assume the risk, to the charity or the poor person receiving the service. Where is the merit in that? What will happen if this parliament passes these amendments and next year an electrician makes a careless mistake in rewiring, say, a women's shelter? Suppose that a child staying in the shelter touches a wire that has carelessly been left live and suffers permanent injury. Unless the child's guardian can prove that the electrician either knew of or was recklessly indifferent to the danger there will be no legal recourse. The parents will bear the loss, even if the tradesman is fully insured for such risk. What will the public of South Australia think of their legislators after that? Will they be satisfied that—as the member for Davenport argues—it seemed like a good idea at the time? There ought to be wide—

The Hon. I.F. Evans: Show me that in Hansard.

The Hon. M.J. ATKINSON: Sorry?

The Hon. I.F. Evans: Show me that quote in Hansard.

The ACTING CHAIR (Ms Breuer): Order!

The Hon. M.J. ATKINSON: No; I did not quote you: I summarised in layman's terms the effect of your contribution—no quotes around that. There ought to be a wide consultation if the proposal is to go further. The government has, between the houses, invited SACOSS to comment on the opposition amendments in their earlier form, but SACOSS has declined to do so. SACOSS tells us that more investigation by its staff, in consultation with its members and within the wider community sector, would be required before it could form a position. That is an entirely prudent response, and the house should learn from it. As introduced, the bill deals only with donation of food. It seeks to stop the appalling waste of good food that goes on every day at the moment because donors fear legal liability.

The government has reason to believe that the bill as introduced can immediately and substantially reduce that wastage. That is what we have seen happen with similar laws in Victoria. The industry tells us that it will happen here. It would be most unfortunate, especially at this season of the year and with parliament about to rise for the summer recess, if the parliament did not see fit to pass this bill in its present form. That is not to say that the government will not consider extending legal protection to the donors of other things. We are certainly prepared to examine the issue.

The government proposes that the bill should not now be amended. Instead, the government offers that, if the bill is passed unamended, it will, by June 2009, publish a discussion paper inviting comment from any interested person or organisation on any legislative action that could be taken to increase the donation of goods and services and the making available of premises for charitable or benevolent purposes without unacceptably increasing the risk to the safety of recipients. The paper would solicit comment on the effects of such possible amendments on charities and other non-profit organisations, their donors, their insurers and the recipients of charity.

The government further proposes that, after analysing and weighing all submissions received, it should publish a report by the end of October 2009 setting out its conclusions on what reforms should be made and its reasons. If the report proposes reforms, it shall also include the government's proposed timetable for reform. For those reasons, the government opposes the amendments. The opposition amendments might be well meaning, they are also naive and represent a headlong charge in indecent haste. They render irrelevant the views of interested parties.

Worse still, the failure to consult puts at risk the most vulnerable in our society. At the same time it delays a bill that can do enormous immediate good where it is most needed. We know from Foodbank Australia that the time to increase food donations is right now. The global financial crisis has already hit those in need in South Australia. Foodbank Australia also tells us that nationally the July to September quarter is the first quarter on record that it has experienced a reduction in donations.

By comparison, for the past four years they have enjoyed 23 per cent compound growth year on year—and the member for Kavel would know all about that as a banker. Never before has food bank seen such a close and immediate link between economic and social circumstances, and this is the time that the opposition wants to turn our charities and their beneficiaries into laboratory mice.

The Hon. I.F. Evans: That is a lie.

The Hon. M.J. ATKINSON: Madam Acting Chair, I ask that the member for Davenport withdraw the last interjection which was, 'That is a lie.'

The ACTING CHAIR: Member for Davenport, that is unparliamentary. Could you withdraw the comment?

The Hon. I.F. EVANS: Yes, it is. I meant to say, 'That is a deliberate untruth,' and I withdraw the word 'lie'.

The Hon. M.J. ATKINSON: These amendments may have merit, who knows. The opposition certainly does not know—at best it is guessing. It proposes to wing it and make these amendments law without even asking those who will be affected so immediately and directly. They want to foist untried legislation on the vulnerable of our state with a cavalier view that we can fix it as we go along or we can fix it when something goes wrong. Try justifying that stance to the mother of the first child to suffer harm when she finds that her legal recourse has been cut off by the amendment of the member for Davenport.

Other states have adopted similar food donor legislation to what we are proposing. Victoria did so in 2002. Since then, New South Wales, Western Australia, Tasmania and the ACT have all passed similar laws. Food donations have increased and those in need have benefited. No other state has even thought to put forward the untested proposals being suggested by the member for Davenport and the Liberal Party.

The vulnerable in South Australia deserve better: they do not deserve to be made guinea pigs or laboratory mice by the member for Davenport and the Liberal opposition. We have a mere 29 days until Christmas and the opposition looks to delay the legislation that could mean so much for so many. This proposed legislation rightly renders the Liberal opposition as the scrooge who spoilt Christmas.

The Hon. I.F. EVANS: Let me correct the record because what the Attorney just put on the record was rubbish.

The Hon. P.L. White: What are you doing?

The Hon. I.F. EVANS: I will tell you, member for Taylor. I will tell you the history of this so that it is clear for the record. The Liberal opposition supports the government's bill. The bill allows restaurants and food providers to donate food to charitable purposes at no cost for a lesser care. They get the benefit of lesser care. The Attorney makes an impassioned argument about what happens when the first death occurs under the opposition's amendment. Attorney, what happens when the first death occurs through food poisoning and you confront the mother of the child who dies of food poisoning? I refer to the food poisoning in Hahndorf this year when three people died. Food poisoning is a huge risk, a far greater risk than carpentry or plumbing, and arguably—

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: Yes, arguably. Both of our solutions have risks. I make it crystal clear to the parliament what the opposition is putting to the Attorney tonight. We seek to cooperate with the government in getting the bill through, and the member for Taylor and others can listen to this. We were contacted by the Attorney's office about three weeks ago (I think it was the Thursday of the last week of sitting) seeking to discuss the opposition's amendments.

I had a meeting with Bill Denny and Katherine O'Neill, and I listened to their argument. I reminded them that I had publicly consulted with the Law Society who put in writing that they had no problem with our amendment. I suggested to them that I would go to parliamentary counsel and get other amendments drafted. I was happy to sit down any time from that day on with the Attorney personally or his officers and work through the issues.

I heard nothing, as the lead speaker for the opposition and the proponent of the amendments, until I rang Bill Denny on Tuesday (yesterday), saying, 'I notice it's on the upper house program for this week to be voted on. Don't you want to talk about any amendments, or any adjustments, or any solutions to the issues you raise?' So, where was the great, sincere approach from the government to sit down with the opposition to try to work through the issues?

I spoke to Robert Lawson in the other place and had some amendments drafted last night to provide an olive branch to the parliament and to the Attorney, and the amendments are in a new form, as the Attorney knows. The new form of the amendment is this: that the government's provisions in the bill are separated out in different clauses—

The Hon. M.J. Atkinson: There is no olive branch on your beat.

The Hon. I.F. EVANS: Actually, there are lots of olives because the department for the environment does not clean them out of the parks. The government's amendments are put into separate clauses. The opposition's amendments are put into separate clauses. Attorney, I make this offer to you on the record: the opposition will not criticise the government if it passes the legislation in its current form and not proclaim the opposition clauses until the program you outlined in your speech, that is, the discussion paper, the public consultation, is dealt with and then you can come back in and explain why those clauses need to be withdrawn—

The Hon. M.J. Atkinson: That is infantile legislation.

The Hon. I.F. EVANS: Hang on; it is not, because—

The Hon. M.J. Atkinson: Infantile.

The Hon. I.F. EVANS: No; it's not and I will explain why it is not. First, the legislation goes through the night and the food is donated. There is no greater risk in what I am proposing to anyone, but the only difference is this, Attorney: a future parliament would have to take those clauses out, rather than a future parliament having to put them in. The reason I think that is—

The Hon. M.J. Atkinson: So it is advantage Iain.

The Hon. I.F. EVANS: No; the reason for that is simply this: why should the opposition trust the government on a private member's matter when, only two weeks ago, the government chose not to debate my bill on trying to get more money for victims—which I have offered to sit down and talk with you about over the Christmas break, which I understand we are doing—and brought on an issue about Marble Hill? I cannot be more sincere in my offer. I will not criticise you publicly; the bill will go through. My clauses will—

The Hon. M.J. Atkinson: No; you've already done that.

The Hon. I.F. EVANS: I have not criticised you publicly on this at all. There has not been one public statement of criticism on this about you at all. I have deliberately not done it and I have deliberately not done it, Attorney, because for 25 years I have worked in community groups that have sought this type of change. I was national president of a service organisation. I was on the National Service Association Committee, which has always sought this change—

The Hon. M.J. Atkinson: You were in government five years.

The Hon. I.F. EVANS: Yes; and I brought in volunteer protection legislation—

The Hon. M.J. Atkinson: Not this.

The Hon. I.F. EVANS: No; because it had not been thought of and we tried to work it through. Here is an opportunity—

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: No; they sought the principle, Attorney, of limiting their risk. This is an evolving debate and all I am saying to the Attorney is that the opposition, in good faith, will support the Attorney's bill; will not criticise the Attorney during the timetable he has set out, if we leave the clauses in. Just do not proclaim them. Do the public consultation and then the government of the day can come back to the parliament and explain why they need to be amended or possibly withdrawn.

I cannot make a fairer offer than that and it is just petty politics to say, 'No, we want to withdraw them, go through the consultation process and then put them back in.' What opposition is going to believe that a government is going to put them back in? Why would we believe that a government is going to put them back in? If you do not accept the offer, all I am saying is take them out at a future date, if the consultation shows that it is unworkable. But I say, Attorney, that I cannot be more sincere in my offer. I have no wish to have the house sit in a conference tonight or tomorrow—

The Hon. M.J. Atkinson: You will not need a conference if it goes through.

The Hon. I.F. EVANS: Possibly. All I am saying to you is that I make a genuine offer: there will be no criticism of the government, the clauses that cause the Attorney concern will not be proclaimed, the consultation—

The Hon. M.J. Atkinson: I could be so good for you.

The Hon. I.F. EVANS: Honestly, Michael, if I wanted to belt you on this I would have been on radio every day for the past three weeks belting you. I have not done that. Ask Bill Denny and Katherine O'Neill, I offered to meet any day, day and night, in the past two weeks to solve this. This is a matter of great personal interest to me and has been for over 20 years. If you do not take my word for it, fine, but I think, Attorney, that in my 15 years here I have never dudded my word with you. Every time I have made a deal it has stuck.

The Hon. M.J. Atkinson: I seem to recall a Dorothy Dix circa 2001.

The Hon. I.F. EVANS: No, that was not me.

The Hon. M.J. Atkinson: Yes, it was. You were the minister

The Hon. I.F. EVANS: I did not organise the Dorothy Dix.

The Hon. M.J. Atkinson: No, but you answered it just as you were told.

The Hon. I.F. EVANS: No, I answered it how I wanted. You have to answer questions; even your ministers understand that they have to answer questions. Attorney, I make that offer. I do not accept some of the arguments put forward.

Let us walk through some of the Attorney's arguments. The Attorney says that there will be a lower level of care. The Attorney freely says that the restaurant industry is going to get a lower level of care. I argue that if restaurants get a lower level of care food poisoning can occur, and the argument about fronting up to the parents of a child who has died, or a mother who has died, is exactly the same argument. There is a risk in this, we accept that.

Garibaldi is a good example of food poisoning causing deaths, and there is the latest incident in Hahndorf. History is littered with people dying of food poisoning. The Attorney raises the issue of insurance. The restaurant industry can insure for their risk like any other business; there is no difference, and I am not convinced that the principle is not right.

All I am trying to do is offer a solution to the house which I think is reasonable. I see no reason at all why a food business should receive a different level of protection than anyone else who wishes to donate. Just as food is important—and the opposition recognises that food donations are important—so to the provision of emergency shelter is important. Rotary provide shelter boxes all around the world in times of natural disaster and in times of fire. Why is that going to be placed at a higher risk than food donations? The donation of shelter and of a whole range of things are just as important as the donation of food.

The Attorney has previously stated on the record that he supports the principle but there are some issues. Attorney, the only difference you and I have is this: I say leave the amendments in, do not proclaim them, and we will see you at the end of your process and I guarantee the opposition will not publicly criticise the government for that. You say take them out and some day down the track a future parliament might put them in.

The Hon. M.J. Atkinson: Next year.

The Hon. I.F. EVANS: Well, given the government's record on private members' time, why would the opposition believe that?

The Hon. M.J. Atkinson: It is a standing record on private members' time. There is more of it than there ever was under your government.

The Hon. I.F. EVANS: Well, I have made my case. I have made that offer in all sincerity. I have no wish to hold the parliament up tomorrow, before Christmas, or tonight. I am happy to sit here in conference as long as it takes, because I think our offer is reasonable. I say to the Attorney that I am particularly annoyed that your officers contact me, in good faith they say, and I take them on their word.

I have worked with Katherine O'Neill, she is a good officer. I have met Bill Denny once, and that once was when, in good faith, they met with me seeking my cooperation. I offered my cooperation. I offered to meet any time over two weeks to resolve this issue. I do not get the decency of an email, a phone call, a fax or a letter. I do not get anything. All the opposition gets is a faxed program to the upper house saying that it is going to be debated. I ring Bill Denny and he says, 'It's going to be debated up there. We'll see you in the chamber.' Where was the good faith on behalf of the government?

You say to take you on your word that you will introduce it in two years. The example of the last two weeks is that the government did not even want to discuss it. Robert Lawson and I made ourselves available, and we were absolutely, flatly ignored. Attorney, I will make you the offer. I cannot be any more genuine than that. I think the opposition has acted very honourably on this particular issue, very honourably indeed. I do not think that we deserve the treatment that we are getting on this issue, because we both support the same principle. I have offered a very logical solution to the issue. I ask the Attorney to withdraw his motion and accept the amendments so that the house can deal with it as I have outlined.

Motion carried.