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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 3847.)

The Hon. I.F. EVANS (Davenport) (16:01): Prior to the luncheon adjournment, I was making my contribution as lead speaker in relation to this bill. In fairness to the house, I have made the point that, although we support it, I think the government's bill does not go far enough. I do not intend to argue that again in this section of the debate. I have had a quick word to the Attorney about this matter. There is only one clause in the bill, so I intend to raise a range of issues as part of my second reading contribution. The Attorney's officers may wish to take note because there are some issues in relation to the way in which this bill will work to which I require answers, particularly how it will interact with the Food Act 2001.

With the indulgence of the house, I will walk through some of the issues, and I will try to go slowly so that the officers can make notes. Common sense to me says that 'food' as part of this bill would take the same definition as 'food' in the Food Act. I think the courts would read that down. That is how I am interpreting the act would work. Could the Attorney confirm for me whether cigarettes in the Food Act are food given that they are consumed? I am interested to know whether cigarettes are classified as food. In his second reading explanation, the Attorney raised the matter of food businesses. In this bill there is no definition of what is a food business. The Food Act 2001 includes a definition of what is a food business. Do 'food businesses' in the context in which the Attorney is using it in this bill come within the same definition as 'food businesses' in the Food Act 2001?

In his second reading explanation, the Attorney raised the concept of unsafe food. The Food Act includes a definition of what is unsafe food. When the Attorney says 'unsafe food' in his second reading explanation, is that to be interpreted as the 'unsafe food' as per the Food Act? Could his officers confirm that for me? I am not wishing to be difficult, I am just trying to get on the record exactly how the government intends this to work. The opposition will certainly support the bill, but we just want to get on the record exactly how it will work.

The other question I have for the Attorney-General is this: is it only authorised donations by the business? That may sound unusual, but there is the opportunity for a staff member or an agent of the business to make a donation without the management of the business knowing. My reading of the bill is that even unauthorised donations are covered. However, for the sake of clarity and for the benefit of the house, will the Attorney-General clarify that?

I thank the officers for their briefing. It is a very simple bill, but I asked some interesting questions of them. The Attorney got back to me only today just before question time on one point on which I sought clarification. I thank the Attorney for getting back to me. I sought clarification in relation to who is protected by this legislation. Italian Restaurant Pty Ltd makes a donation. Does that mean that the chef, the waiter, the delivery driver, all the staff and everyone associated with that business who had something to do with that donation, the making of the food, the preparation of the food and the delivery of the food are all exempt from liability? The Attorney-General has written to me saying that the bill needs amendment to make sure that that is the case, and I acknowledge that the government is now going to amend the bill as a result of my question.

I thank the Attorney for taking that on board and we certainly will be supporting that amendment. That point, at least, has been clarified by way of the officers' briefing and a letter following. Also, I wish to raise with the Attorney for clarification the fact that, when the bill refers to a charitable or benevolent purpose, there is no definition in the bill of what is a charitable or benevolent purpose.

So, I expect that the fair assumption, and the way in which the bill is meant to work, is that you would go to other bills that have that definition, and for 'charitable purpose' you would go to the Collections for Charitable Purposes Act. That act does define a charitable purpose, but in that there is a restriction as to what you can make the donation for. If you are donating food for any of the following purposes, you are covered: the affording of relief to diseased, disabled, sick, infirm, incurable, poor, destitute, helpless or unemployed persons, or to the dependents of such persons; to relieve distress occasioned by war; affording of relief, assistance or support to persons who are or have been members of the armed forces; and the provision of welfare to animals.

The reason I raise the issue of 'charitable purpose' is that I do not think (and I will ask the officers to clarify this) the bill necessarily covers the simple donation of neighbour to neighbour. If they are diseased, disabled, sick, infirm, incurable, poor, destitute, helpless or unemployed, they are covered. But if you are an employed person in reasonably good health and your neighbour wants to give you something, you are not protected. If that is the case (and that is certainly my reading of it), I think the bill is at fault. I see absolutely no reason why a good neighbourly action should not attract the same protection as any other charitable act. Again, it is an example where the bill does not go far enough, that is, if it is a donation for charitable purposes, and 'charitable' is not defined in this act.

So, what is a benevolent purpose? Well, I have tried to find a piece of South Australian legislation that has 'benevolent' in it, and I could not find one. The Acts Interpretation Act and the Collection for Charitable Purposes Act do not include a definition of 'benevolent', so maybe the Attorney can clarify for me how broad the benevolent purpose goes, and maybe that covers the neighbour to neighbour straight donation.

The other issue is the matter of payment. This bill provides that the donor incurs no civil liability if the intention of the donor is that the consumer of the food will not have to pay for the food. What happens if they do? What happens if the Italian Restaurant Pty Ltd donates the food to the Red Cross with the intention that no-one has to pay, and then Red Cross, for whatever reason, decides that it will charge three bucks for a three-course meal? Does that then invalidate the civil liability provision, or the exemption of the civil liability provision? My reading of it is that it probably does not, because it goes to the donor's intention, but I want to get on the record the government's intent, because I can see circumstances where charities may seek a gold coin donation as a contribution just to offset some costs, even though the donor intended that there be no charge. I think a lot of donations are going to occur on the basis of, 'Look, here's the food. We don't care what you do with it,' and if they want to charge five bucks for a three-course meal, so be it. I just want to check what actually is the intent.

Also, in his second reading explanation the minister talked about this aspect of whether the donation was made with no cost or other consideration. For example, Italian Restaurant Pty Ltd donates 200 meals to the Hutt Street Centre on the basis that it gets an advertisement in the Hutt Street Centre's annual report, or it gets a banner put up at the Hutt Street Centre. Is it consideration? Is consideration 'any benefit'? I am not a lawyer—I am just a humble builder—but I want it clarified so that it is crystal clear what is the risk to a business. I suspect that, if you are donating on the basis that you may get a free advert, the courts may interpret that as a consideration, or a benefit. If that is the case, the bill needs to allow that to happen, because I think for donations not to happen because you might get an advert or something is ridiculous. I personally do not have a problem with businesses donating and being recognised publicly for their donation. In my view, that should not invoke a revocation of the civil liability exemption. Maybe the Attorney can clarify that for us.

There is another issue, and I know the Attorney will not accept this today; this is for another day. I will put it to the Attorney this way: as part of his two-year review, can the Attorney have some officers do some work? I am happy to help him on this if he wishes. I think there is a role to play for donation by discount. For example, in small country towns where businesses by their very nature tend to be smaller and donations by their very nature are similar in size, I think there is a role to play for businesses to say, 'Look, I can't give it to you for nothing but I can give it to you at my cost.' So the business makes no profit and the community group benefits by reduced cost. A restaurant might say to the hospital, 'I'll put on a fundraising dinner for you, or I'll make a donation to you of food, but I can't afford to give it to you for nothing. Instead of charging you $50 a head, I'll charge you $10,' Under this bill, they are still liable, because there is a charge.

For other products, which you and I might have a different view on, any donation by discount is not covered by the bill. It has to be 100 per cent for nothing or not at all. Why? I think the officers can do some work to see if there is some opportunity to put in a framework whereby if you make a donation by way of discount it attracts a similar exemption. I think that would help a lot of small country communities and businesses to support their local communities. I do not expect an answer on that today, but I do think some work can be done.

I suspect I am reading it wrongly, and, if so, the Attorney can clarify this so that it is clear for the record, but, in relation to staff, your new amendment in this section, which has similar wording to the bill, provides that a reference to the food donor or distributor is a reference to a person acting without expectation of payment. So, I am the chef at a restaurant. I am getting paid, and I do expect to get paid, but if I am preparing the food and giving it away on behalf of the restaurant am I captured, because I do have an expectation of payment? I know what the bill is meant to state. The bill is meant to state that the person making the donation is not going to get paid for the donation. I want to make it absolutely crystal clear that, even if staff are paid to prepare the food, they are still covered by the exemption. I am sure they are, but I just want it clarified.

In the way the Food Act is written, preparing the food is part of the sale of food. At the point of preparing, making and cooking the food, the intention is that you will get paid for it. It is only at the point of donation that the intention suddenly switches to, 'If I donate the food at the end of the day is the organisation not going to get paid for it?' I just want to make sure that the fact that they prepare the food at the start of the day with the intention of being paid for it does not somehow trigger them out of the legislation. I suspect it does not, but for the sake of clarity we can get that on the record.

The officers might want to get out the Food Act for the advice of the minister. I note that there are a number of clauses in relation to the Food Act. I am sorry, Madam Deputy Speaker, to talk about the Food Act but it relates directly to the donation of food, and I will clarify why. Under the definitions in the Food Act:

Sell includes:

(m) give away for the purpose of advertisement or in furtherance of trade or business;

So, if giving away food for the purpose of advertisement is technically selling food—so I give it away on the basis of a given advert—according to the Food Act, is it then a donation and covered by the bill? That is unclear to me. My personal view is that the bill should override the Food Act, and if you do give it away for nothing on the basis of advertisement the bill should then override the act. The Attorney may need to look at that between houses; I accept that.

In relation to subparagraph (k) 'dispose of by way of raffle' is not charging for the food. So, Charlesworth Nuts gives away a basket of goods to the local charity; it does not expect to get paid. At that point, Charlesworth is covered by the bill. But the charity will sell raffle tickets for people to win the prize. There are two points: first, I suggest the bill provides that they are not paying for the nuts and therefore they are covered by the bill. I think that is a fair reading of it. However, the Food Act provides that by donating to a raffle you are selling food. Again, there is a conflict between the two acts. If you give away food for a raffle, under the Food Act it is being sold and under this act is being given away. Which one applies? I am not sure.

Again, in relation to the definition of sell, the bill provides:

(o) supply food (whether or not for consideration) in the course of providing services to patients or inmates in public institutions;

If you are giving food to a charity that will then pass it on to public institutions, even if you give it away for no consideration, à la a donation, it is sold under the Food Act. The reason I have gone to the Food Act is that there are three examples of 'sell' in the definitions of that act that are covered by this bill, and there is a confusion between the two. From my point of view, that needs to be clarified.

The other issue I raise with the Attorney is this: what process will be in place for product recall? Food is one of the main areas subject to product recall, so what network will be put in place through this donation channel to recall faulty product if an ingredient is recalled? I understand the restaurant has to make sure it is safe; but what if it donates it to a charity and suddenly finds out that the cinnamon powder (or whatever) that it has used is subject to a product recall? I am simply asking: what is the process?

The other issue is that of food labelling. Do donations of food have to be subject to food labelling? All those little church group cake stalls out there now have to have nutmeg, flavourings, bananas, peanuts—all of that—listed, so we have to be crystal clear in what we are saying to businesses. Is the food being donated subject to food labelling laws or is it exempt? The process for that is unclear in the bill.

The other issue relates to the Food Act. There are penalties within that act regarding the selling of unsafe food—

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: Attorney, this is over a good bottle of red one night; I am only a humble builder! The issue is that there are penalties in the Food Act for selling unsafe food, but I can see no penalty for donating unsafe food. I am not sure there should be, but I raise the question for consideration by the house. If someone sells unsafe food there is a $500,000 penalty and if someone sells unsafe food that they should have known was unsafe there is a $375,000 penalty. However, if someone donates unsafe food or donates food that they should have known was unsafe technically, because it is a donation, it is not caught by the 'sale' clause. They are open to the civil liability provision because it is reckless, but there is actually no penalty in the Food Act for the donation of unsafe food. Should there be? I do not know, but I raise it as a question: what penalty regime is there for donations of unsafe food?

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: No; I like asking questions so that businesses can read the Hansard and say—

The Hon. M.J. Atkinson: As they do.

The Hon. I.F. EVANS: Well, I will be distributing it to my restaurants so that they are crystal clear as to the intent of parliament. I have consulted with the Restaurant and Catering Association, with the Law Society and with SACOSS, and, like the Liberal Party, they all support the bill. I will be voting for the bill but, for the sake of clarity, I have raised some issues that I am sure the officers and the Attorney have thought about; they have had a lot longer to think about it than I have. So with that contribution, I conclude and I look forward to the Attorney's response. When we get to the appropriate clauses, the Liberal Party will move amendments.

Mr PEDERICK (Hammond) (16:27): I rise to endorse the comments made by the member for Davenport and congratulate him on the extensive work he has done regarding amendments to this bill. I believe it does need to go forward in regard to dealing not just with donated food. Several volunteer groups have come to me recently, worried about what protection they have under the law. Obviously, if they are working under the umbrella of an organisation, they are protected but, as has been mentioned earlier, a problem arises where the organisation needs insurance. As mentioned by the member for Davenport, a club (whether that be Apex, Rotary, etc.) may need a couple of thousand dollars just to cover the insurance, yet this money would be far better going to a local community agency, to someone in need, to the local church or the footy club, etc.

I also agree with the comments made about why people cannot do a building alteration, or construct a shed or a fence for someone, without being held liable. It is absolutely common sense, so I concur with the comments made by the member for Davenport and believe that wider protections are needed.

In terms of donating goods or giving them in good faith, the way my young boys go through bikes I do not know if they would be any good to donate afterwards but, if they were, I would be happy to donate them to a needy cause. However, I would hate to have the problem of putting up with a legal suit because someone fell over the handlebars—and we had that terrible tragedy interstate recently, where a lad died on a bike track.

Because we live in a litigious society, I think people do need protection with any goods they donate. I guess we live in an, at times, overregulated world—in fact, the comment was made to me early in the piece that the more often we sit the more freedoms we take from people, and I believe that to be the case. If we go back to food handling, gone are the days when you could go to a public event with a barbeque where people served food with bare hands and tongs. Now everyone has to get the rubber gloves out. I guess that is the way of the world, and we have to comply with regulations and legislation.

I wonder how many dolphin or fish deaths will result from rubber gloves being tossed into the sea. There is a further issue with clubs. Running in tandem with this bill and something which may have to be dealt with down the track is the issue of volunteers working with local community groups and on local hall committees. This issue is relevant in the country. People have written to me and I am awaiting an answer from the minister about liability issues in relation to maintaining a local hall. For example, one group raises $1,000 a year just to pay insurance on a local hall, which might be used once a year. It is maintained so that local community members can hold family functions, whether it be a 21st birthday or some other celebration.

The Cooke Plains Hall Committee has made a decision in relation to a war memorial hall. It has made the decision that once they sort out the constitution they will sell the hall—and it will be gone from the community. I hope they are able to keep the treasured mementos, and I think they are making arrangements with other organisations to display them elsewhere. They have some excellent photos and honour boards, honouring people who have served overseas.

I do commend the amendments that will be moved by the member for Davenport. I think this bill needs enlarging, and I commend my comments to the house.

Mr VENNING (Schubert) (16:32): This is a most interesting exercise today, because—

The Hon. M.J. Atkinson: You did win Mannum; I'm sorry.

Mr VENNING: Of course I did. I lost only two booths, so I knew that I won Mannum booth. The people of Mannum have been very supportive of me, and I thank them for that. I thank the Attorney-General for his apology.

This is an interesting exercise. The member for Davenport has done his work on this bill. It appears to be a basic bill (which we would support), but there is a lot more in it than meets the eye. I commend the member for Davenport. He has had a rough couple of days, but he has bounced back and he is back in here with some thought-provoking stuff.

The Hon. M.J. Atkinson: Make him leader again, Ivan!

Mr VENNING: Well, hang on. He is only a young man and he will have every opportunity in the world.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: Mr Speaker, I ask for your protection, because I am being provoked in the house.

The SPEAKER: Order, the Attorney-General!

Mr VENNING: I give the member for Davenport a great deal of credit for this bill. He has out-thought us all on this matter.

The Hon. M.J. Atkinson: He is outstanding.

Mr VENNING: He is outstanding, absolutely. He is a very astute politician. Everyone would agree with that. I would hope no-one would disagree. We wished him well in his quest in Mayo, and I think the people of Mayo would have been well served by him. There is no problem at all with me.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: Mr Speaker, I am trying to get on with the subject here. The member for Davenport is a man of great experience. As a result of looking at the bill, he has brought up some information he garnered from his time as a minister. We in the Liberal Party are supporting him and the bill generally. I agree that it ought to be expanded to look at other areas. I am amazed that we did pass laws originally to ban the provision of food.

The Hon. M.J. Atkinson: We did not ban the provision of food.

The SPEAKER: Order! The Attorney-General will have an opportunity to speak.

Mr VENNING: We made it law that people were liable if they gave away food that was past its use-by date. I think the bill is commendable. We know use-by dates are put on parcels of food to show an average time until the food becomes perishable.

The Hon. M.J. Atkinson interjecting:

Mr VENNING: We will be become active and we will spread out these things. We will become more interested in what we are doing in this place. As whip, I have to be a good example. Right? Enough said.

I will be interested to see what happens to the amendments of the member for Davenport in relation to this bill. I note that the member for Davenport speaks with experience, particularly as a former national president of Apex. I know they do a lot of public work and they have to carry their own public policies. If they are doing public work for charity, why can they not be carried under the same liability exemption as this?

The Hon. M.J. Atkinson interjecting:

Mr VENNING: That is right. The Attorney-General would say, 'Is that a valid argument?'

The Hon. M.J. Atkinson: No.

Mr VENNING: Why not?

The Hon. M.J. Atkinson: I will tell you when you sit down.

Mr VENNING: I think it is a valid argument. I think it is extremely valid.

The Hon. M.J. Atkinson: You are easily led, Ivan.

Mr VENNING: This bill is about food. I can understand the dangers of that, because people eat it and get sick and there is a liability, particularly if one is not sure how the food has been prepared or whether or not it has been refrigerated. What about the other issues the member for Davenport raised? He talked about giving away clothes.

The Hon. M.J. Atkinson: You are not my size, Ivan.

Mr VENNING: I could be! He also talked about toys and electrical goods. A lot of people buy electrical goods and sometimes they never use them. They take them home and leave them in the box. They buy all this stuff, the batteries go flat and that is it, but by law you are not allowed to give away electrical goods.

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order, the Attorney!

Mr VENNING: I do not know how I am supposed to keep my thoughts with this prattle going on. I can understand that a product could be unsafe, but I think it is a vast overreaction, because many an electrical product still in the box could be handed free to a more deserving person who would need it.

The Hon. M.J. Atkinson: It can be now.

Mr VENNING: I am told that it cannot; because it is second-hand it cannot be given away.

The Hon. M.J. Atkinson: No, that is not right.

Mr VENNING: The Attorney can tell me about that in a few moments. In relation to companies, as the member has said, people are very generous here in South Australia—more generous than probably anywhere else in Australia—particularly corporate companies and the community—

The Hon. M.J. Atkinson: Most companies are corporate.

Mr VENNING: No, not all of them. The Attorney says some crazy things. They are not. I have a private company and I do not call myself a corporate. I am a company; I am not a corporate.

The Hon. M.J. Atkinson: You are not a corporate?

Mr VENNING: No.

The Hon. M.J. Atkinson: So, your company is not incorporated?

The SPEAKER: Order!

Mr VENNING: It is, actually. But I do not call it a corporate. I think that these liability-free donations would provide a greater incentive to donate more goods to people and would help to give and receive equally. I think the member for Davenport has certainly widened this out, and I am interested to hear what the response will be. The member for Davenport is going to pursue with his amendments, if the government does not pick them up—

The Hon. M.J. Atkinson: He is on the way back.

Mr VENNING: He was never on his way out.

The Hon. M.J. Atkinson: How did he drift back there? How did that happen? How did he get there?

Mr VENNING: Because that is where he wants to be. He is resting. Irrespective of that, the member for Davenport will move his amendments and I will be supporting them. It will be interesting to see what the house does with them. If we do not address these issues today I think we will revisit this matter, because I think the member has raised some very valid points. I am interested to hear the Attorney-General's comments in response to the amendments of the member for Davenport, because we on this side think he has a lot of merit. He is a valuable member of this team and it is proof—

The Hon. M.J. Atkinson interjecting:

Mr VENNING: Right here; exactly right.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (16:39): I will try to answer the member for Davenport's questions in the order in which they were asked. It is likely that 'food' has the same meaning under the bill as it does in the Food Act, because the definition of 'unsafe food' is important. It is unlikely that cigarettes are a food, as the member for Davenport argues, within the meaning of the Food Act, otherwise all cigarette sales would be illegal.

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: It is amazing how some members can hate tobacco but love cannabis. They do not understand it. But I will not respond any further to that interjection.

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: There is no definition of a food business in the bill because the expression is not used.

The Hon. I.F. Evans: In the second reading speech it is.

The Hon. M.J. ATKINSON: 'Unsafe food' as used in the bill and the second reading speech refers to the Food Act definition. An unauthorised donation might or might not be covered: it depends on the authority of the person who gave it. If the person was stealing from the employer it is likely the immunity would not apply, because that person would be acting outside the course of his employment. However, it is also likely that the business would not be liable, as the theft may be serious and wilful misconduct.

The member for Davenport then asked about a charitable or benevolent purpose. The member said that he could not find another example of the use of this phrase but, in fact, it is used in his own Volunteers Protection Act. So, the meaning must be reasonably clear to him.

The Hon. I.F. Evans: Touché!

The Hon. M.J. ATKINSON: Touché, indeed. The intention at the time of donation is the relevant intent. What happens to the food after that does not alter this. The member for Davenport referred to 'other consideration'. If there is a deal between the donor and the charity that the food is in exchange for advertising, it is not a donation covered by the bill. However, nothing prevents a donor from thanking or publicly naming its benefactor. The chef who prepares the food does not donate it, because it is not his to give away. The fact that he is being paid is not a problem. It is the business that donates the food. Under our amendment, the business and its employees are protected.

There is no conflict between this bill and the Food Act. The latter imposes criminal sanctions on the unsafe handling of food for sale and the sale of unsafe food. This bill is only about civil liability. The Food Act does not put criminal sanctions on donations. Labelling obligations arise under the Food Act and not under this bill. This bill does not change or impinge on the labelling requirements of that act and it does not add any new labelling obligations. I thank the member for Davenport for his thorough attention to this proposed law and I hope that has satisfied his curiosity, if not, we shall return to the questions he raises after the parliament prorogues.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. I.F. EVANS: I move:

Page 2, line 3—Delete 'Food Donors and Distributors' and substitute: Charitable Donations

I draw to the attention of the committee that all my amendments are consequential, so that when I win this one, I will continue on and win all the others and, if I lose this one, I suspect I will not be moving the others. As I indicated in my second reading contribution, this set of amendments seeks to broaden the legislation to include donations of any object and donation of a service on the same conditions as the government's bill. That is, without the expectation of payment or other consideration and for a charitable or benevolent purpose—for the Attorney's interest, if members look at the Volunteer Protection Act, they will see the word 'benevolent' purpose is used but not defined—and in good faith and without recklessness, and with the intention that the consumer of the goods—

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: That was the bit parliamentary counsel did—or services would not have to pay for them. They are exactly the same conditions as the Attorney is putting before the committee. My amendments say that, any donation of goods or services (on those conditions) should attract exactly the same immunity that the government is providing simply for the food donations. I spoke at length on this matter prior to the luncheon adjournment. I do not intend to hold up the committee. I believe that it is a sensible amendment. I cannot see an argument against it, other than the government did not think of it.

The Hon. M.J. Atkinson: We would never use that.

The Hon. I.F. EVANS: I bet you that you do. You will probably say that you will consider it in between houses or over the two-year review.

The Hon. M.J. Atkinson: Yes, probably.

The Hon. I.F. EVANS: That is what you wrote to me and said that you were going to say. I will not hold up the committee much further. I will be taking this matter up in the upper house if I lose it here, because I think the principle is right and I do not think there is a logical argument against it at all. I seek the committee's support for our amendment.

The Hon. M.J. ATKINSON: Wouldn't it be nice to be as certain as the member for Davenport? These amendments would delete the government's proposed protection of food donors. In its place, the amendments would substitute an entirely different provision that seeks to protect anyone who provides goods or services to another without payment for a charitable purpose in good faith and without recklessness, as long as the person intends that the consumer should not have to pay for the goods or services.

The member for Davenport's proposed protection would extend to property damage, as well as injury or death. As far as the government knows there is no similar legislation anywhere else in the world.

Mr Hanna: You could not possibly do it then: you would not want to be first.

The Hon. I.F. Evans: Someone had to be first with food donations.

The Hon. M.J. ATKINSON: Yes; and someone was: it was Victoria. The member for Davenport's proposal is far reaching: it includes the provision of any goods, motor vehicles, power tools, furniture, building supplies—anything at all—and also any services. It would cover, for example, a health clinic that provides a free service to homeless people. It would cover a car manufacturer which donates a vehicle to an aged-care provider.

Mr Hanna: Good.

The Hon. M.J. ATKINSON: 'Good,' says the member for Mitchell. I know that he has been giving it profound thought during the course of the day. It would cover free legal advice given by a major law firm to a charity. It would seem to cover all the services that are provided to the public by large welfare organisations such as Centacare, Anglicare or UnitingCare Wesley. The proposal is that, in these cases, the provider of the goods or services should only be liable for recklessness, not for negligence. This is a vast enlargement of the scope of the government's bill and the government is concerned that it has not been thought through—

Mrs Redmond: By the Attorney.

The Hon. M.J. ATKINSON: Yes, by the Attorney, or by the member for Davenport in the traumatic aftermath of the preselection at Morphettville Racecourse.

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: We reasonably expect food donor legislation to work because Victoria has had similar laws for six years and there is evidence that donation of safe food to charity has substantially increased and there is no evidence that anyone has come to harm.

I take up the member for Mitchell's interjection. I do not like to be first with these things. I know he is very much a year zero kind of a person who wants to be out there experimenting on members of society, but I like to see how a proposal goes in another jurisdiction before applying it to South Australians. Unlike the member for Mitchell, I do not treat South Australians as laboratory mice.

It is probably this history of good experience that has encouraged the South Australian Council of Social Service to accept a measure about which it was initially hesitant. I say to the member for Mitchell that, if SACOSS were not opposing this, it would have happened two years ago. The member for Davenport has not told us what consultation has occurred with the charitable sector about his much more extensive proposal. I acknowledge that he first raised it with me in estimates three weeks ago, but it seems to the government to be the sort of thing that requires more extensive consultation than with the member for Mitchell and the few who are here at this committee today. It requires consultation so that those affected can give informed consent.

A criticism that is easily levelled at this sort of legislation is that it creates one law for the rich and another for the poor. The food donors proposal does mean that the legal protection of consumers of donated food is less than that of consumers who pay for food. We have thought long before doing this. What determined us to do it was that we have reason to think that quantities of safe food are being wasted in South Australia because potential donors fear legal liability. We looked at the interstate experience and the substantial increase in the 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 closely. The government would be concerned at the entrenchment of a lower standard of care towards the poor right across the board without at least some public consultation. Frankly, I think this amendment runs contrary to most of what the member for Mitchell has stood for during his public life, and I am surprised at the way he has jumped on board just to ingratiate himself with the opposition.

Mr HANNA: I rise on a point of order. It is against the standing orders to impute an improper motive to another parliamentarian.

The Hon. M.J. ATKINSON: I certainly withdraw. I shall rephrase that to say that the member for Mitchell, to my surprise, is supporting this proposal.

The provision of some goods and services can carry a high level of risk. Think of the electrician who rewires a house. Why should his level of care be lower when he is doing the job free of charge for a women's shelter than when he works on your home or mine? Why should the lawyer, for example, not have to take the same care with the case of a refugee who seeks asylum as with the case of a businessman who claims he has been defamed? What about the mechanic who repairs faulty brakes on a delivery van? Why should he not be expected to use the same skill and care for all vans, since the risk is identical?

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen interjects, 'Because he's not being paid.'

The Hon. I.F. Evans: The qualification is he cannot be reckless, but he has to use the same standard, just as the chef has to use the same standard. A chef does not cook to a lesser standard because they are giving it away. What a nonsense argument!

The Hon. M.J. ATKINSON: Madam Chair, the member for Davenport and the member for Heysen, in their enthusiasm, fail to recognise the difference in civil liability standard between recklessness and negligence.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: We could, but I am giving you the reasons why we are not, on this Tuesday, deciding off the cuff to extend it to the entire economy, as the member for Davenport proposes. We need a strong justification for accepting this amendment and a proper understanding of the risks. I venture to say that the member for Heysen has not thought through all the risks. In fact, I rather doubt that the member for Heysen addressed her mind to this until she came into the chamber a few short minutes ago.

Mrs REDMOND: I rise on a point of order, Madam Chair. The Attorney suggests that I was not in the chamber, when the Attorney knows full well that we are all always in the chamber.

The CHAIR: I am sure that the Attorney does know that we are all always in the chamber and will correct the record.

The Hon. M.J. ATKINSON: I apologise and withdraw. We are always in the chamber or, in the case of the member for Heysen, her ears are glued to the intercom following the debate. Possible justifications might be to avoid criminal wastage of these services or to overcome a serious problem of availability of these services to the poor. Where is that evidence, Madam Chair? We would also need to be satisfied that the risk is low enough to be acceptable. How do we know that?

There is the problem of what is meant by providing goods or services in good faith. How does a shop give away a bicycle or a plumber unblock a drain in good faith?

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: There is no such requirement in the government's bill (I hope that answers the member for Heysen's question), and to add to it will probably vitiate the protection that the government was trying to give food donors. Rarely are the member for Heysen's interjections answered so quickly! At the same time, the amendment takes out the safeguard for food donation that is incorporated into the government's bill by the mention of the definition of 'unsafe food' derived from the Food Act. All food businesses know what it means. They must apply that standard in their daily work. All that the government's bill requires them to do is to refrain from donating food that they know or should know is unsafe.

The amendment proposes instead a more general examination of whether the donor has acted in good faith and without recklessness. Plainly, the proposed amendments have the potential to generate extensive litigation. The government is concerned that this proposal, although likely to be superficially attractive, contains hidden risks to the very persons it intends to benefit. There ought to be much public consultation if the proposal is to go further. The proposal has, however, been put forward in such a way to prevent that, and the government cannot at this time support it.

Mr HANNA: I am speaking in relation to an amendment to a government bill, that is, the Civil Liability (Food Donors and Distributors) Amendment Bill. The government has sought to protect those who wish to donate food to people with a charitable purpose; in other words, to poor people or, perhaps, organisations which care for poorer people. The government legislation—

The CHAIR: Member for Mitchell, can I clarify something? Are you seeking information from the Attorney at the moment or speaking to the amendment?

Mr HANNA: I am speaking to the amendment.

The CHAIR: Thank you; I was not quite clear.

Mr HANNA: That is all right. I will start again. The government legislation does require that the donation of food is done without recklessness; so, it would not afford protection if the donor had an idea that the food was unsafe. The member for Davenport has come forward with a series of amendments which extends that sort of protection to goods and services more generally. With a couple of exceptions, the protection applies to a range of goods and services in the same sort of context which is relevant to the government legislation and the donation of food.

We are talking about a situation where a person might be donating items of furniture, a professional person might be providing services or a tradesperson might be fixing something—these sorts of situations. The principle is: why should they have any less protection for their charitable act than a supplier of food who donates food? The idea behind the government legislation is a good one. If it promotes the donation of food for charitable purposes, that is a very good thing; and the Attorney-General has pointed out that the interstate experience is that this legislation does work to that extent. It would also work, then, if those who are donating their time or any sort of goods for charitable purposes were protected in the same way.

The example which comes to my mind most readily is in relation to the auditing of books for non-profit associations. A number of the associations with which I have been involved over the years find it very difficult to get an accountant to review the books and sign them off as audited at the end of the financial year. Very often it is a simple job; there might be only a handful of ledger items each month through the whole year. However, the accountant in that situation knows that there is always the risk of being sued or being embroiled in some controversy, and it seems to me that this sort of amendment might make professionals in that situation more likely to offer their services to non-profit associations.

I think there is merit in it. It would be beneficial to society if there were more charitable donations of goods and services in that way, and I am glad to support the amendments.

The Hon. I.F. EVANS: I will not delay the committee long, because I intend to pursue this in the other place. So, the Attorney can start consulting. Let me make this point to the Attorney: the argument he has just put to the committee is drivel, and I will explain to him why. The Attorney is saying to us—shock, horror—that my amendment would apply to a donation of a car and that there is a risk. Well, there is a greater risk from donation of food. Hundreds of people can get food poisoning through donation of food. There is a greater risk through donation of food. In the town of Hahndorf in the last month people died through salmonella poisoning.

The greater risk to the community is through food donation, but the Attorney has protected them. He has said, 'Unless they do it recklessly, that they are recklessly indifferent, they are protected,' and we say, 'Good.' But it is a nonsense to say that there is a greater risk with the donation of a car, a roof, clothing or a power saw. Yes, there is a risk, but put the same qualification on it. You cannot donate and be recklessly indifferent. If a plumber is clearing a drain and he is recklessly indifferent, guess what? He is not covered. But the risk to the community is negligible compared to a food donation.

Why are restaurants not making food donations? Because they are concerned they will get sued. For the people who are not donating the Attorney is making it easier, and for the organisations that are already donating and paying huge insurance as a result of their donations he is saying that he will not help them at all. You have it the wrong way about: you should be saying that you are going to help both categories. Your philosophy is that, because the food companies will not donate, we will give them exemption, but for all you other people out there who are donating and paying inflated insurance costs, bad luck, you can just wear it because you are prepared to wear the risk.

I think it is a damned nonsense, and I am going to pursue this in the upper house, because I think the principle you espouse, Attorney, and your government has put forward to us is absolutely right. If someone wants to donate clothes, a car, timber or roof iron, or anything else to make someone else's life a little easier, why would we not accept that and accept the fact that there is a risk? I could get hit by a bus walking across the road tonight. So be it; there is a risk to life. But there is no great risk in those donations. The greater risk is in the donation of food because it can affect hundreds of people and can quickly cause very serious illness or death, such as the donation of water.

I put to the Attorney that I totally disagree with his view. I accept the fact that he might want to undertake further consultation. We have a six-week break coming up. This bill will be in the upper house when we come back, and I look forward to the debate up there. Certainly, the Liberal Party will be pursuing this as a matter of course. If we get the numbers up there, we will go into a deadlock conference, and then the Attorney and I will be sitting there trying to work it out. So, let us try to sort it out over the break. I think, Attorney, that you are correct and, at the same time, you are wrong: you are correct in your principle, but you are wrong in the way in which you are applying it.

Amendment negatived; clause passed.

Clauses 2 and 3 passed.

Clause 4.

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

Page 2, lines 15 to 19 [inserted section 74A(1)]—Delete subsection (1) and substitute:

(1) In this section, a reference to a food donor or distributor is a reference to a person who, acting without expectation of payment or other consideration and for a charitable or benevolent purpose, donates or distributes food with the intention that the consumer of the food would not have to pay for the food and to the agents or employees of such a person.

The amendment slightly alters the definition of food donor or distributor to make clear that it includes the agents and employees of that person. We were responding to a point made, and made well, by the member for Davenport, who I am pleased to join in any legislative endeavour. I recall us working harmoniously on the Electoral Act at one stage but, unfortunately, that still is not through.

The Hon. I.F. Evans interjecting:

The Hon. M.J. ATKINSON: But I have always remembered what we need to do. Obviously, if the donor or distributor is a body corporate, it can carry out the act of donation only through human agents, and these would be covered by the protection. Perhaps doubt might arise, however, about the situation of a person employed in a food business who was involved in preparing the food but does not take part in its donation. This amendment makes quite clear that that person is covered by the protection.

The Hon. I.F. EVANS: As this was the opposition's idea, we are delighted to support it.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:12): I move:

That this bill be now read a third time.

Mrs REDMOND (Heysen) (17:12): I want to put a couple of comments on the record in the third reading of this bill. In response to the comments made by the Attorney-General during the committee stage, not only did he erroneously assert that I was not here but, more importantly, he asserted that I had not thought through the implications of the amendments proposed by the member for Davenport during the committee stage. I want to put on the record that not only did I consider those amendments but, in fact, in our party we go through a process whereby any bill and any amendments to the bill will be seen, first of all, by the Legal Affairs Backbench Portfolio Committee, which I chair. The amendments were considered by that committee, under my chairmanship yesterday, and they were considered by the party in full before they came in here. So, they were two formal occasions, but prior to that I had had extensive discussions with the member for Davenport about what we should do about this bill.

Indeed, from the moment this bill was introduced by the Attorney (and, of course, having been introduced by the Attorney, one would normally expect that I might be the lead speaker), we decided that it was appropriate in this case for the member for Davenport to be the lead speaker because of his extensive involvement and his desire to really take the matter further. I have to put on the record that I absolutely agree with what the member for Davenport is putting. That is, where someone wants to make a donation for a charitable or benevolent purpose, no matter what the nature of that donation—whether it be goods or services, whether those goods be food or other than food—it is entirely appropriate to have a principle that we apply in this state saying that, so long as you are not reckless about the way in which you do that, we will protect you from liability. I absolutely endorse the comments made by the member for Davenport.

If the Attorney reads back through his final contribution prior to the vote on the amendments, he will find that, in fact, every comment he made about food applies equally to anything else in terms of the whole rationale for this debate.

I am hopeful that, when the Attorney takes it back to the party room for further consideration, there may be some scope for us to come to a rational landing. Instead of being division, as the Attorney asserted, between the rich and the poor and a differential standard, I believe that the differential should simply be that when you pay for goods you will have a certain level of expectation. However, if you are prepared to accept goods by way of benevolence from another party—the giver of the goods or the service—it is quite reasonable as a matter of principle to say that, as long as the giver of those goods or services is not recklessly indifferent to the consequences of the state of the goods or services given, it should not then expose the giver to personal or legal liability. That seems to me to be a perfectly reasonable proposition.

I just want to put on the record that, far from being something that I have not considered, this is something that I considered even before I came into this place. It is something in which I have engaged with the member for Davenport in considerable discussions over the weeks since the Attorney introduced the bill, and it is something which I have specifically considered both through committee and joint party before coming into this place. I absolutely endorse the position espoused on our behalf by the member for Davenport.

Bill read a third time and passed.

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