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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.

(Continued from 5 June 2008. Page 3508.)

Mrs REDMOND (Heysen) (12:29): I indicate that I am not the lead speaker on this bill, but I am happy to start the debate on behalf of the opposition. It is an issue we support. When the lead speaker gets here he will explain that we want to make it even broader than it is currently. In my life I have been involved for many years in quite a large range of different voluntary work. Included in those things has been on occasions working in op shops and such like where people receive charitable donations, which are then distributed either at no cost or at very limited cost to those in the community who may be in need.

One of the early things I became involved in for most of my teenage years was what we used to call the food drive in Sydney. Through all my teenage years I belonged to a fellowship and we used to go door to door in my home town collecting non-perishable food items for the Smith Family. The Smith Family has been in South Australia for only a few years. It is a non-denominational philanthropic organisation and concentrates most of its efforts these days on trying to provide mentors to young people who might be in need of a little bit of assistance along the way. This year I am sponsoring a primary school child through the Smith Family, and I do that instead of sending out Christmas cards. Some of my parliamentary colleagues on both sides of the house spend a lot of money sending out Christmas cards to numerous people, but in fact I send very few Christmas cards—I still send some overseas and interstate—but for the most part I simply put an ad in the paper advising people that instead of sending out Christmas cards I will be making a donation out of my own pocket, and this year I have sponsored a child with the Smith Family.

The reason I have an attraction to that particular organisation is that I spent so many years working, generally towards the end of the school year or just before school finished, and we would go out in pairs door to door and it was quite a logistical exercise collecting this food. We did this collection as teenagers, with no adults. There were enough of us who could drive that we were able to organise people to collect the food from us as we went around the various streets in my home town. I am quite proud of the fact that, by the time we finished our food drives as teenagers, we had collected in my home town over 100,000 items of food to be taken into a central depot and distributed to the needy people throughout Sydney and New South Wales. Particularly they started out getting a Christmas hamper, but eventually enough food was being collected that they could provide packages to help people in dire straits during the year.

For a long time I have had this very personal involvement with the collection and distribution of foodstuffs to those in the community who might find themselves in need. It is not just as a result of that, but clearly in part as a result of that, that I am enthusiastic about the government's bill which essentially is necessary now because people perceive some risk of personal liability if they make a donation of foodstuffs to those who might be in need.

The reason they are concerned, I think, is simply that we have a perception in our community that you can be sued over almost anything. I am not aware of anyone at this stage in this state having been sued over a gift of food but, nevertheless, the potential, clearly, is that if someone were to receive food which was given to them in a charitable way and they became ill as a result of the consumption of that food they might take action against the provider of the food.

Essentially, the bill says that, provided the person giving the food is not reckless—they do not recklessly give food that may or may not be contaminated and, certainly, do not deliberately give food that is contaminated—they will not be liable if the person should suffer as a result of the consumption of that food.

Recently, I read about the development in the US of a group of people who call themselves freegans. Vegans are people who have only non-animal products in their diet. Indeed, my second son became a vegan. There are no animal products whatsoever—no milk, no eggs, no cheese—in their diet. The new group of freegans are people who find food in dumpsters and bins and, as much as they can, provide their sustenance from food and other things which have been thrown out and which are still considered to be good.

I am sure that many people are aware that, because of the requirement to have a use-by date on virtually every product, there are many occasions when perfectly good food has to be disposed of by a supermarket because the use-by date that has been printed on the can or the packet has expired. Indeed, we all would be familiar with bins in supermarkets where they sell off at a much reduced price the food stuffs for which the use-by date is approaching. They know that if they do not sell it at a reduced price between when it is placed in the bin and when the use-by date is reached they cannot sell it at all.

The shame of it is that it is often perfectly good food but we are not allowed to do anything with it. They are not allowed to give it away. They are not allowed to give it to a charity that, in turn, could pass it onto people who are desperate for food. It is quite ridiculous that under the current regimes which operate around this country we have a situation where we are so wealthy that we force businesses to throw away perfectly good food rather than give it to people who could use it and who would be grateful to receive it.

I welcome the government's introducing this legislation. The lead speaker on this matter will no doubt expand on why the opposition has taken the view that if it is good for food it should be good in a number of other instances. It makes sense to me that we would do everything we could as a parliament to facilitate what most people would say is just common sense. If there are perfectly good foodstuffs that a business would otherwise have to throw out, as long as they do not recklessly pass on potential problems to someone, in terms of the food going off or something like that, there is every reason to say that it is a good thing for our society to allow an organisation to pass on foodstuffs to a charity or an individual without facing the prospect of litigation because of their having made that gift.

With those few words, I indicate my wholehearted support for the principles espoused by this bill.

Mr O'BRIEN (Napier) (12:40): I would like to congratulate the parliament with respect to this legislation. As a business operator, it is a predicament (if I could express it that way) that I have had to deal with for a number of years. As the opposition is aware, I have held a number of Bakers Delight franchises and I currently have one at Westfield Marion. Some four years ago, Bakers Delight in its wisdom realised there was an issue related to the donation of large amounts of food every day to charities around Australia. All Bakers Delight franchises are instructed by Bakers Delight to pass the food on to a worthy charity rather than dump it.

In my own case, I have done a calculation, and I think that through just one Bakers Delight franchise I must distribute in excess of $200,000 (at retail value) worth of food a year. That is a large amount. It goes largely to church groups in the Marion area (and, when I had the Bakers Delight at Blackwood, in the Blackwood area) and is farmed out through church organisations to the underprivileged in the community. I know that it is a boon to the strugglers in our community, in that they know that at least once a week they will receive, on occasions, a considerable amount of food that may sustain them for the full week.

As I said, Bakers Delight was concerned some three or four years ago that its franchisees were exposed on this issue, because even though the franchise operates on the basis of producing fresh food daily and disposing of all food at day's end, we had no assurance that the charities collecting the food from our stores would disperse it within a period of 24 hours. Bakers Delight was concerned that some charities may hold the food for a matter of days, if not longer, and when being passed to individuals in the community the product may have deteriorated to the point of causing an adverse health consequence.

As a result of that, as I said, some three or four years ago Bakers Delight instituted the policy of having all charities sign for the food on a daily basis and, in signing for the food, acknowledging the fact that Bakers Delight accepted no liability for the transfer of that particular product. It also excluded any product that contained either meat or cheese, so we were basically just in the position of disposing of bread, rather than some of the more nutritional products that are produced.

The problem with this approach was that sales staff occasionally would forget, or the charity would be disinclined to sign the waiver, just on the basis that these were humble church folk who had absolutely no understanding of the document that they were being asked to sign. What the government is proposing today takes the onus off sales staff to ensure that the waiver is signed and also removes what I would consider a level of distress for a number of humble church folk in being compelled to sign a legal document about which they have absolutely no understanding nor, I would claim, direction, if you like, from the church hierarchy to sign that document.

The initiative is long overdue and I believe it will probably assist a large number of other food producers within South Australia who currently do not dispose of their food to charitable organisations to avail themselves of this opportunity. I commend both the proposer of the proposition and the government for this piece of legislation.

The Hon. I.F. EVANS (Davenport) (12:46): I indicate that I am the lead speaker on this bill for the opposition. I indicate that the opposition will be supporting this bill. The questions I raise should not be interpreted by anyone as the opposition trying to be difficult or opposing the bill, but I think some interesting questions need to be asked and put on the record so that we are crystal clear about what we are doing. As the Attorney knows, I come from a volunteer background. As the member for Napier has just put on the record, I strongly support the concept of the business community making voluntary donations of all types to the community, and I strongly support this legislation.

The house might recall that I was the first minister for volunteers who brought in volunteer protection legislation and advocated good samaritan legislation, which the government, in its wisdom, picked up. I have a philosophy of this style of legislation and certainly support it. The point is that this legislation does not go far enough. I raised this informally with the Attorney over a cup of tea after the estimates committee. I put to the house that this legislation does not go far enough. I ask: why just food? I say to the house: why is it that the food industry gets special dispensation for donation? Why just food?

I used to run a hardware store and I used to donate power tools and all sorts of things to community organisations. Under the government's proposal and policy, that business remains liable, but a food donor escapes liability, if they are not reckless. I can say to the Attorney and other members of the house that a range of voluntary organisations will not accept donations of electrical goods, for example, because of the liability. The member for Torrens nods, as does the member for Heysen. Why are we denying any donation of an object or, indeed, a service—and I will come to that in a minute?

Let us talk about objects. This bill says that, if one particular industry donates an object—'food'—then they will escape liability unless they are reckless. I agree 100 per cent. It seems common sense to me that, if Fielders wants to donate roof sheeting, a hardware store wants to donate a power tool, a clothing shop wants to donate clothing, or a car manufacturer wants to donate a car, as long as they make the donation on the same basis, that is, they are not reckless and it is not for sale—the same conditions that are in the Attorney's piece of legislation—and it seems to me a restriction on the charitable sector.

Why do we want to say to Holden, the hardware store, or to any other business that seeks to donate, 'I am sorry, if you donate to charity, you are liable', but if you are a restaurant, then somehow you get special dispensation. I understand that food is consumed and other objects are not designed for consumption but used for other purpose. I understand the difference, but I think there is a principle here. The principle is that we want the community, whether that be the business community or individuals, to offer hands of assistance to other members of the community who are less fortunate. No-one is going to argue against that, but why restrict this just to food? It makes no sense to me and it makes no sense to the Liberal Party. The Liberal Party took a position this morning and I congratulate it on doing so; I think it is a good position.

Mr Koutsantonis interjecting:

The Hon. I.F. EVANS: One out of two is not bad, Tom! The Liberal Party took the position—and I have placed amendments on file, Madam Deputy Speaker—that if a donation of any object is made on the same terms and conditions as the government's bill, then the donor should be liability free. I think that is a good thing and it makes no sense to oppose it, because the principle is right. The reason I support the Attorney's bill is that the principle is right. I put to the member for Napier that surely it makes no sense, if he were running a hardware store, that it should involve a civil liability different from that involved in running a Baker's Delight franchise.

I appreciate that the government has not thought outside the square on this issue and formally sought advice on it, but when you think it through logically, there is simply no reason why any donor should be treated any differently from someone involved in the food industry, and to this end we have amendments on file. That is the issue concerning donations of objects. I now raise a different form of donation and that is the donation of service.

Mrs Redmond: Such as legal advice.

The Hon. I.F. EVANS: Such as legal advice, auditors or Rotary, Lions and Apex clubs that go out and do gardening or re-roof people's homes for no charge. Under this legislation why are they treated differently from the commercial operator of a restaurant that is donating food and service? They do not charge for the chef, or for the preparation or delivery of the food, in all of which there is a labour component.

What we are designing in this bill is a two-tiered civil liability system for donations, and I say that is wrong. I say that in principle the government is right, but it has not gone far enough. Let me walk you through the argument on services, and let us look at the government's bill. The bill says that if you donate food and you are not reckless, then you are free of civil liability—you cannot be sued for death or illness, if someone dies from eating it. Fine, we accept that; we think that is a good thing. As a component within that donation, the for-profit company that is making the donation has paid the chef, the waiter, the food preparer and the delivery driver. There is a wage component in all of that. It is not just the food that they are donating: they are donating all of the wage component.

Then going to the not-for-profit sector; why is it that when the Rotary Club wants to re-roof or paint someone's house, or do someone's garden for no charge, their labour component still carries civil liability? They do not get exemption; their labour component still carries the civil liability, and that is the point I make.

Mrs Redmond interjecting:

The Hon. I.F. EVANS: No, the individuals are protected. The member for Heysen, by way of interjection, raises the Volunteer Protection Act, to which I will refer now for the information of the house. That legislation, which I drafted with the assistance of parliamentary counsel, protects the individual. Under the volunteer protection legislation, if you are a volunteer of an incorporated association and you are not reckless, then if something untoward occurs the liability does not go to the individual: it goes to the organisation. Here is my point to the government: if it is a food business, the organisation is exempt, but if it is a voluntary organisation, the organisation inherits the liability. It comes from the individual volunteer under the Volunteer Protection Act, and goes to the Lions Club, the Rotary Club, the football club or the hospital board, whatever voluntary organisation you wish.

I say most sincerely to the government: do not underestimate my sincerity in this argument, because I passionately believe that the legislation does not go far enough and you have developed an inconsistency so that the not-for-profit sector ends up with a liability—not at the individual level but at the organisational level—for its donations of service. A restaurant may go to a charity and say, 'I tell you what I will do. I will cook up a meal for you for 200 people.' It does not have to be excess food under your legislation: it can be a deliberate effort. 'I will cook up food for 200 people and give it to the Hutt Street centre.' All that labour component is free from civil liability, and all I am arguing is for the government's principle to be expanded so that the not-for-profit sector is treated in exactly the same way as the for-profit sector. Why is food special? People die from all sorts of things that are donated.

The Hon. M.J. Atkinson: Because it is perishable.

The Hon. I.F. EVANS: It is perishable, but so what? You can give someone a power saw that has a fault in it and the blade could cut off your arm. You can be putting a roof on and a piece of timber can fall and kill someone. There are risks in all forms of donation. Let us not kid ourselves that food is the only form of donation that has a risk. Of course it is not.

The Hon. M.J. Atkinson: Because the donor made it.

The Hon. I.F. EVANS: That is not true. The donor might have mixed it. In the Baker's Delight case I accept they make it, but restaurants simply buy in beef and cook it. They do not make it. And they can give that away. So what? It is no different from someone buying a power saw and giving it away. It just comes from another agent. It is exactly the same process. There is absolutely nothing special about food if you look at the principle. We have amendments on file to this effect, and I see no reason that all donations of service and objects should not be treated the same. There is absolutely no reason, in my view.

The reason I passionately argue this is that when I was national president of Apex the insurance costs were horrendous. From memory, it was something like $300,000 to $400,000 per year for public liability insurance, just so we could serve. So we would put our hands in our pockets and write out a cheque for whatever it was—$70 or $80 a member—just to cover the insurance. That is clearly madness. If you look at all those community groups—Lions, Rotary, Apex, Soroptimist, Zonta, Rural Youth and Jaycees—they are struggling for membership. Why are they struggling for membership? Part of the reason is cost structure.

I can speak about Apex, because I know a lot about it. Apex is predominantly a country organisation and, essentially, country communities are saying, 'Twenty members at $80 each is $2,000 out of the community, just on insurance. Why do that, when you can just pay the $2,000 to the footy club or the hospital board and be done with it? Why send it to a Sydney-based insurer?' I say that is a fair argument.

Parliament has an opportunity here to say, 'Hold the bus and let's just stop and think about this for a minute.' I say to parliament that, unless you can put to me a case why they should not be covered, we should cover them. Their voluntary contribution of two hours of gardening at a little old lady's house, or doing the re-roofing or painting, or (in Lions' case) the save sight program, or (in Rotary's case) the polio eradication program, is working for the community good; and we should be saying as a parliament, 'We support you.'

Mrs Redmond interjecting:

The Hon. I.F. EVANS: I agree with the member for Heysen: we should be doing everything we can to help them. I say to the parliament: look at Rotary. Rotary has eradicated polio from the world.

Mrs Redmond: Almost.

The Hon. I.F. EVANS: There are four countries left. World governments cannot do that. The United Nations has not done that. It is the weekly meetings of business men and women in Rotary throughout the world who have committed to a six to eight-year program who have done that.

Debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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