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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-03-05 Daily Xml
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CIVIL LIABILITY (RECREATIONAL TRAILS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 30 October 2008. Page 731.)

The Hon. R.B. SUCH (Fisher) (11:11): I support this proposal which, as I understand it, really extends the type of protection councils currently have in relation to matters involving roadways and so on. I am also told that the general protection against legal action does not extend to things like playgrounds, but it does in respect of roadways.

In recent times, as we all know, our society has become more litigious—it is a good word to say at dinner parties. People are now more prone to take legal action if something happens to them they feel aggrieved about, and I think that, in our society, it should be their right. However, we need to try to balance people's enjoyment and their opportunity to participate in worthwhile activities against likely risks. I think in some ways, we have now come to a point where there has been an attempt to take out any aspect of risk and, if one takes that to its logical conclusion, we might as well all stay in bed all morning, because life has risks. It is not about eliminating risk altogether: it is about managing risk and making sure that there are reasonable provisions.

We do not want to protect people who have no regard for the welfare and safety of others or who deliberately create danger spots or activities, but we do not want to get to a point where people acting in good faith for the wellbeing of the community feel threatened because someone might take legal action on what many of us would regard as an unfair basis.

As I understand it, this measure relates to designated trails—the Heysen Trail, and so on. I have spoken to the member for Davenport and, unfortunately, it does not cover things like orienteering or rogaining. He tells me that it was very difficult to encompass those particular activities, which clearly are not confined to a specified trail. My brother and others are very active in orienteering and encouraging young people to get involved, and also rogaining—the night-time activity which parallels orienteering—but those activities are not covered in this bill.

Just to quickly reinforce that point, I think that society—and that means parliament as well as government—needs to focus on trying to get a balance between risk and reasonable activities. I think we have gone too far towards trying to cottonwool everyone in our society to the extent that, in Queensland recently—unless it has changed—a policy was brought in banning cartwheels in schools by junior primary and primary schoolchildren.

Anyone who knows anything about children will know that they go through a stage where they love doing things like cartwheels. It is a bit more difficult at my age. As I have said, if we are not careful, we will end up with an excessively nanny-type state. On the pretext of making everyone safe, we will get to a ridiculous point, where people are unable to engage in reasonable sorts of activities because of the fear of litigation and compensation.

I think this is a good proposal, limited as it is, and I accept that there are difficulties in extending it beyond these specified trails. However, I think it is very important that we allow people to enjoy life and do worthwhile things, including bushwalking and so on, without the fear imposed on the landholder or others that someone will take legal action over something which, in essence, is quite unreasonable. I commend the bill to the house.

Mr KENYON (Newland) (11:16): I will make some brief remarks on this private member's bill. The government encourages South Australians to remain active and to enjoy our national parks and wildlife. We live in a state that is rich in native flora and fauna, and we have invested heavily in our parks and wilderness since the government was elected in 2002.

The trails mentioned in this bill—Heysen, Yurrebilla, Riesling and Kidman—wind through our national parks and wilderness areas, and they are a great asset to our state. We need to look after our trails, but this bill is limited to the issue of maintenance and public risk of recreational trails and does not add any benefit to existing arrangements with landowners; therefore, the government does not support the bill.

The bill seeks to amend the Civil Liability Act so that an owner or occupier of land on which there is a prescribed trail is not liable for a failure to maintain, repair or renew the trail or to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew the trail.

Currently, the trails referred to as 'prescribed trails' are included in a landowner licence agreement process used by the Department for Environment and Heritage and the Department for Recreation, Sport and Racing, where the landowner and the minister responsible for the trail enter into an agreement which covers public liability, maintenance, trail alignments and other special conditions agreed to.

The current landowner licence agreements go further than the proposed bill and are favoured amongst landowners, with 100 landowners having signed landowner licence agreements. Current conditions which are allowed for by negotiation in the voluntary landowner licence agreements are also included under the provisions of the Recreational Greenways Act 2000, which I suspect is an act introduced by the member for Davenport when he was minister.

The Recreational Greenways Act was produced to provide for the establishment and maintenance of trails for recreational walking, cycling, horseriding, skating and other similar purposes. The act allows for proclamation of a greenway across land for the purpose of recreational trails and includes private land. The act also provides for entering into agreement with the minister for the purpose of a greenway. The access agreement may include indemnity and the placement of an easement over the land for the purpose of the act.

To date, no landowners have been signed up for a greenway on their property. This is evidence of lack of support for a legislative approach by occupiers of land; therefore, it is unlikely that the introduction of this bill will encourage any further landowners to allow trails to cross their land. The landowner licence agreements enable the government to build long-term relationships with landowners, so this proposed legislation will not provide any benefit to current arrangements.

The Hon. I.F. EVANS (Davenport) (11:19): I thank members for their contribution, particularly those who supported the bill. I will respond to the member for Newland. If he goes back and reads his contribution, he will see exactly why this legislation is needed. I advise him to speak to his Minister for Recreation, Sport and Racing; in fact, better than that, he should speak to the departmental staff. They are essentially disinterested in recreational trails. The money spent by this government on recreational trails was the $6 million allocated in the last budget of the former government seven years ago. Other than that, the government has failed to invest in recreational trails at all.

The Yurrebilla Trail that has been developed is the result of an announcement by me as the then minister and the money allocated at that time. Likewise, the same set of conditions apply to the Kidman Trail. The reality is that, if the member for Newland goes out and speaks to those private citizens who have properties where the government wants to locate public trails, the first thing they will question him about is liability.

This bill gives a watertight guarantee that a private citizen giving public access over designated trails would have no liability. The problem with the Heysen Trail, the Kidman Trail, the Tom Roberts Trail, the Yurrebilla Trail, the Riesling Trail and other designated trails is that the land ownership changes all the time.

The Heysen Trail is a long trail—1800 kilometres. Land ownership changes all the time, and the department is consistently out there renegotiating with new landowners to try to get new agreements, debating public liability issues. The bill that we moved would have solved those public liability issues. I invite the member for Newland to go and speak to the Friends of the Heysen Trail, or to Horse SA, Walking SA or Recreation SA, and they will tell you that the type of legislation that we proposed is desperately needed.

This government is way behind on recreation and sport development, particularly in the field of recreation. The recreational services legislation, which I tried to abolish and replace with waivers, is another example of where the government is years behind where the law needs to be to promote active recreation within the community. They rant and rave about the obesity programs that they are bringing into the state, but for simple measures to make it easier for people to enjoy their normal recreation risk free, and for private citizens to provide their property risk free, the government simply turns a blind eye.

I invite the member for Newland to go and talk to those groups, and he will find that there is a big problem out there involving public access to private land for public recreational purposes. The department used to turn a blind eye to my efforts for years. We got through a series of legislation despite the department's reluctance to pursue it. The department for recreation and sport tends to be more about sport; they are not too much about the recreation aspect. That is a pity, but that is the reality of it. They tend to focus on the gold medals and the high-profile sports—cricket, football, netball and those sorts of sports.

If you go in there and talk to them about a simple thing like bushwalking, for instance, they have little or no interest because it has no media profile. There is a big issue involved here in relation to providing public access to private land, and this bill would have solved it. I think the government has been closed to the idea and conned by its departmental advice. I thank those who chose to support the bill.

Second reading negatived.

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