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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2010-09-16 Daily Xml
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CIVIL LIABILITY (CHARITABLE DONATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 May 2010.)

Mrs VLAHOS (Taylor) (11:07): The Civil Liability Act gives immunity from liability to donors of food to charities so that they cannot be sued if the food causes injury or loss. This bill expands that immunity to donors of all goods and services. The government is not satisfied that this bill is necessary or that the overall benefit is justified, so the bill is to be opposed. I stand before you today to speak on that.

It is important to distinguish this proposal from that which was passed in the last parliament relating to food donations. That amendment was considered reasonably safe because the commercial preparation and the sale of food is so stringently regulated. It is also considered safe because it has a short lifespan. The risk that food prepared by caterers, restaurants and other food businesses will pose a health hazard is therefore small.

The risk with newly-manufactured goods is probably also not large, but it would seem more likely that the goods being donated are likely to be older. Imperishable goods may be used for many years before they are donated. There is no control over their use or safety during these years and the legal regime that gave parliament the confidence to relax the liability of donated food is simply not there for second-hand goods.

For example, a child restraint seat or 'baby seat', as they are commonly known, could potentially be donated to a charity with laudable intent but with serious consequences. How would the charity know if the child restraint has been in a vehicle that has experienced a motor vehicle accident and, therefore, made the item unsafe? The physical absence of damage does not guarantee that the seat is safe for a child to use nor should it be sold on as second-hand goods.

The government consulted widely on this proposal last year, including writing directly to about 30 organisations. There was not widespread support for the idea, certainly not without a lot more work to show that it would produce the positive effects that would outweigh any potential harm. The South Australian Council of Social Service expressed its concern about the falling rate of donations to charities. While the government shares this concern, it does not see that this bill is the right way to go about fixing this problem.

First, people who rely on donated goods and services should expect an appropriate level of protection under the law, taking into account the nature of the goods and services. As SACOSS pointed out, donation of goods that pose minimal risk to the end user would probably be unaffected by the donor being granted immunity from liability. End users should be protected from donations of goods that pose a significant risk to them.

Secondly, there appears to be no evidence advanced by the mover that donations would increase if the bill were passed. This is in contrast to the food donor amendment agreed to in the last parliament, where there was a good reason to believe that a change in the law would produce a positive difference. Similar laws were working in other states. Food businesses are regulated under other laws, and charities thought it would increase donations while still protecting consumers. No other state or territory extends the same immunity to donors of other goods and services.

Thirdly, in relation to the provision of services by professionals and tradespersons, immunity from civil liability would mean that they would face no consequences for malpractice or inadequate work. In its response to the government, the Law Society indicated it was unlikely that immunity would lead to more of its members donating their services because lawyers are still required to be insured and hold professional obligations to their clients whether or not the clients themselves pay for the services.

The Office of Consumer and Business Affairs said that similar considerations apply to tradespersons. The duty of care owed by those carrying out services to do a thorough and safe job cannot simply be waived by virtue of the service being rendered as to a charitable end. Many other people who donate their services are already protected from immunity under the Volunteers Protection Act 2001. The act transfers liability from volunteers and community organisations to the organisation itself. So, the volunteer is protected and so is the person who is injured by his or her actions.

Not only is there no evidence that the donations of goods and services would increase, there is reason to believe that charities would be worse off under the proposal. There is no expectation that the insurance premiums for donors would decrease according to the Insurance Council. Another submission suggested that insurance costs might actually go up. More than one submission expressed concern that more unwanted goods would be foisted and dumped on charities.

This is a bill born out of noble motives, but consultation with charities and other related and interested parties indicate that there is insufficient support for the government to agree to pass it into law. Concerns about the provisions of the bill are such that it is possible that the bill could do more harm than good and, for this reason, I rise to oppose this motion today.

The Hon. R.B. SUCH (Fisher) (11:12): I will just make a brief contribution. I believe the member for Davenport's intentions are well founded, and he is to be commended for that. It may be that the bill needs to be tweaked a bit. However, I think it is important that, if people want to support those less fortunate, they do not have the fear of legal action hanging over their head.

The bill, in its entirety, covers aspects where there is no immunity if someone is knowingly or recklessly indifferent, and so it goes on. There are safeguards built into the bill, so someone cannot be completely indifferent to the welfare of others and reckless in the provision of goods or services. I think the intention is well founded, but it is clear that the government is not going to support it, so it is not going to get up. There could be some adjustments, and, if it is voted down, I would urge the member for Davenport to rework it a little bit and bring it back.

The Hon. I.F. EVANS (Davenport) (11:14): I thank the member for Fisher for his comments and support. I am disappointed that the government is so bloody-minded in its politics that it refuses to engage in any consultation or amendment to this particular bill. Let me walk through the hypocrisy of the government's position. The government's position is that food retailers and restaurants can be immune from liability if they donate food for a charitable purpose on the basis that they are not reckless or knowingly unsafe.

We all know that in South Australia we have had a number of people die through food poisoning, so donating food is actually a risk. However, the government has decided that that risk is so low that people can donate food, as long as they are not reckless or it is in an unsafe manner—that is fine. The opposition supports that proposition because we support the non-profit sector and the charitable sector.

However, this government is so myopic in its view that it says every other form of donation is a higher risk than that—every other donation. Even the donation of a service, such as legal advice or advice, is such a risk that we cannot make the donation liability-free on the same basis, that it is done in a manner that is knowingly unsafe or recklessly indifferent. Well, go and talk to your charitable groups.

An honourable member interjecting:

The Hon. I.F. EVANS: No, go and talk to them. The government said it consulted widely. It sent out 30 letters and got six responses, and most of those were from government agencies. Get in the cars that the public servants and your ministerial advisers have and go out and talk to the charities. They will tell you that they are finding it extraordinarily hard to get volunteers and to get donations. Why is that? Because we have burdened that sector, like all other sectors, with lots of regulations and people are scared that if they get involved they will be sued—to make a donation, there will be a liability.

The honourable member, unfortunately, I know, has read someone else's speech. It is on the record as hers, but it was done by the minister's office and passed through. It is the same speech that the member for Morialta made in response last time I introduced this bill. So nothing against the member for giving the speech; it is the government's position. However, the reality is that if you are a licensed plumber or builder the court considers that in the question of whether you acted recklessly, indifferently or in an unsafe manner because you have a higher level of qualification.

Go out and talk to the groups: Lions, Rotary, Apex or the Salvation Army. Talk to them about how easy it is to get volunteers and donations, and they will tell you that they are in trouble. If food retailers can donate food and have a restricted liability because they do not do it in an unsafe or a recklessly indifferent manner, why not any other donation? There is no reason at all. Have a look at what your own Minister for Volunteers said about this legislation in that submission to the government's own review. Have a look at what that office said. They actually said there were some positives, as I recall, about this legislation.

The model I have adopted is not Iain Evans's model, it is the government's model. It is the exact wording for any other form of donation as food donation. It simply makes no sense that you can exempt food donors from liability but you cannot exempt the local plumber who is helping the pensioner, or the local Rotary club that is helping someone with accommodation, re-roofing their house, painting their living room, or whatever they are doing. All that great charity work goes on every day of the week, but those groups are saying that they need help. All I am saying to the parliament is that we should put them on the same footing as the government puts food donations; it simply makes no sense.

I know I am going to lose the vote; the government has the numbers. I make the offer to the government: I am happy to meet with them and reintroduce the legislation in an amended form. The offer has been there for a year. The Attorney-General knows my number, and I am happy to meet any time. This is a reform that will help South Australians. I think it is politically stupid of the government once again to snub its nose at the offer to help our charitable and volunteer sectors.

Second reading negatived.

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