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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-26 Daily Xml
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STATUTES AMENDMENT AND REPEAL (FAIR TRADING) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 March 2009. Page 1455.)

The Hon. R.L. BROKENSHIRE (15:54): I rise to speak to this important bill. I urge the council not to rush through it, because it has some serious implications. I think other members have explained, and will further explain, what is plain to us all: that there are two clear components to this bill.

The government has put to us that one aspect relates to a long-running review of the acts under the Office of Consumer and Business Affairs' supervision. I think it is fair to say that that element has not received much attention and perhaps is not controversial. I say 'perhaps' because members' time, I suspect—certainly, in my case—has been taken up addressing the second element to do with recreational liability. There may be controversial aspects in the first element, but our focus, for the time being, is on the second.

That second element is the question of recreational liability. These provisions have been a mess since this government tried to codify elements of the common law over five years ago in response to the supposed litigation crisis, and we got these provisions via the Recreational Services Act 2002.

I remember the debate, the issues and the saga around that. It has never been an easy issue since 11 September, and there has been a lot of litigation, for example, in relation to supermarkets, where people were litigating for slipping on wet floors and the like. The Treasurer eventually took over the saga, because he believed he could find a way forward, but even then many months, if not a year, went by before the Recreational Services Act came into being. That act made it very difficult particularly for not-for-profit organisations, which are so important because of the recreational and other organisational activities they provide for the community, and it did a lot of damage back then.

I acknowledge that the codes of conduct issue might have been well intentioned, but they have now turned out to be a shambles. When you think about it, this is an embarrassment to the whole of parliament, really, not just the government and the Treasurer. What happened was that community groups went to lawyers to have a code of conduct drawn up, and they were frankly told that they were not affordable and that they should just quietly disobey the law, which is incredibly concerning. I am sure, Mr President, that you like myself and many others have sat on many sport and recreation, church and other volunteer groups, and you always have to have in the back of your mind what could happen with respect to liability and indemnity. When you go to a lawyer because the government has introduced new legislation, which has been passed by the parliament, and the lawyer says to you, 'This will be unaffordable for you, so disobey the law,' it is pretty concerning. Lawyers knew that no-one was drawing up codes of conduct, for the same reason. It is embarrassing to the parliament because when the legislation was put into practice, it was found to be unworkable.

To its credit, the government has finally conceded that it is a mess and is repealing the code of conduct measures. We have to be careful when we bring in legislation that we do not create a mess. There is other legislation I am concerned about, and I look forward to the debate on legislation such as the Public Sector Bill. I think that we could be going down exactly the same track with that bill, but it could be even more damaging to the South Australian community and workforce. I will not stray from this debate, but I do look forward to the debate on that measure.

I believe that we as a parliament have an obligation to get this right once and for all. However, the big question for the parliament is: where do we go from here? Mr President, if you are getting some of the representation I have received, you know that it is incredibly confusing. It is very frustrating for people out there. We have a situation now where some businesses are at risk. Some not-for-profit organisations are having sausage sizzles, fundraisers and quiz nights to raise money for insurance companies, instead of spending money on resurfacing netball courts or installing better lighting for their ovals. I will talk about insurance companies later on, because I am less than impressed with the information we have received, despite the fact that we made attempts to get real hard evidence from the insurance companies about claims.

The government has conceptually put up its proposal in this bill to try to protect recreational service providers by setting the bar higher than the common law provision of negligence, and it has called that bar 'reckless conduct'. The government does have a noble intention, and that is to make it harder to sue recreational service providers by requiring more than negligence to have occurred: 'reckless conduct' is the term to be considered; or, to put it another way, one who participates in recreational services needs to accept that certain elements of risk are involved. Yet submissions we have received are that insurers are likely to be very happy with this bar because it is, in fact, lower than what it should be higher than; that is, they will be silent on these provisions because they will find it easier to wash their hands of insuring recreational service providers as a result of these amendments.

I have to say that I am fed up with what is happening in the insurance industry. Look at the costs in your own household or in your business. I know what it is like running a farm now; when you go home and try to talk to your wife and family at night they have just come back from a meeting frustrated because they got a bill from the insurance company. It is easy to get the account and pay the bill, but it is damn hard to get a resolution on a claim.

Family First supports the end, if you like; the end being to protect recreational service providers. However the end does not justify the means, and we have serious concerns about the means by which this government is trying to protect recreational service providers. We are informed on this critical second recreational services element of the bill by the numerous groups who have contacted us about the issue, and I am sure they will not mind me putting it onto the record because I am sure every member here has, one way or another, been contacted by Sarita Stratton, Matt Slater and others who have met with members or sent us emails. I acknowledge and am grateful for the information I have received from a number of community groups—in particular Sport SA and Tony Kerin, head of the Australian Lawyers Alliance in South Australia. I have also observed the weekend media and previous articles in local newspapers about the issue, as well as items on television in recent days.

Family First could not make it to the minister's briefing earlier the other day because of work constraints, but I am sure that the minister, in summing up, can put her arguments on the record in rebuttal or agreement with the recreational services sector. I think it is useful to point out that the angst in the recreational services sector is not new, and I think Ms Stratton would agree with that sentiment. That angst has actually existed ever since this government passed a range of civil law changes that were collectively known as the Ipp reforms. There was enough angst out there before, and there was heartache. That is how bad it was, and this half-baked proposal has just caused more pressure across our South Australian community.

I think this second element of the bill, the changes to recreational services liability, demonstrates the evidentiary failings of those changes, and I want to briefly explore that. I pause for a moment (because I believe in giving credit where it is due) to mention the member for Davenport. If the parliament or government of the day—and I do not care what colour it is—was to actually embrace expertise within the parliament, and include that expertise within some of its brainstorming forums before it brought legislation into this place, the parliament would work better and the government would come out looking a lot better than it sometimes does.

On that point, I would like to talk about the member for Davenport, Iain Evans, who has always been incredibly active when it comes to organisations providing not-for-profit recreational sport and service. He had good ideas back in 2002 that were not really listened to, and so here we are again debating another way forward. I believe he has had a longstanding passion and interest in this issue, and I also believe that the government's changes in this bill are partly in recognition of his advocacy for recreational service providers. However, had he been embraced more in 2002 (and he was not a threat; he was one member in opposition) we could have been a lot better off as a community, and I do not believe we would be debating this today.

I return to the evidentiary failings of these changes. In the drug debate, and with the conduct of this bill, the minister has told members time and again, as the former minister for substance abuse, that her government would use 'an evidence based approach to dealing with social problems.'

However, when it came to the demands of the insurance industry, short of a dollar after 11 September, the industry was not required—and is still not required—to demonstrate its claims history from recreational service providers. I would love to have seen real muscle from the government on this issue, and I cannot understand why the government did not put some muscle into the insurance industry on this issue. As an independent smaller party we have been trying to do that, but I do not think we should be put on the spot in the parliament today, having to debate this legislation without evidence from the insurance industry about claims.

I have not had to jump through so many hoops for a long time in order to get answers from anyone as I have had to do to get answers from the insurance industry. I had a good association with the Insurance Council of Australia, particularly the South Australian branch, when I was the emergency services minister working through the emergency services levy; and I acknowledge that. It was very happy to embrace me as minister at the time and give me all the information and assistance in the world because, guess what, the insurance industry was going to do all right out of the emergency services levy; so it was an open book.

However, with respect to not-for-profit recreational sport providers, when we ask how many claims the industry has had, what it costs and the premium income received in the past five or six years, we cannot get those figures. They say, 'Collectively, we don't have that information and it would be far too difficult to collate all that information as an industry.' I do not wear that; it is a cop-out. It says to me that they are not playing their part in this matter. It is one thing for them to throw a few dollars into grant applications from time to time and to sponsor small clubs but, at the end of the day, without transparency, how do we know that these premiums are not artificially high? I have a feeling that they are.

On the basis of anecdotes, not evidence, a vital and largely volunteer sector of our community was manipulated into codes of conduct that they could not complete. One spent several thousand dollars coming up with a code and then found it futile in every respect.

Our office has put to the Insurance Council of Australia via its constituent members the claims history of recreational service providers or, to put it another way, we simply asked the ICA to show us how recreational services were sending insurers broke. We have not yet received anything and I am not optimistic about receiving this data. Indeed, despite members submitting requests for a claims history or even their position on this bill, the silence has been deafening.

It is for that reason that Family First will move an amendment to the bill which would require insurers to submit their claims history so that we can develop an evidence base. I trust that both major parties, together with my crossbench colleagues, will look at the amendment. If we are to go forward proactively, the parliament must set up a process so that we can have some evidence-based claims history for the future. It will make our job easier and give more confidence and credibility to the insurance companies. I will be moving an amendment because, regardless of the outcome of other amendments to this bill, I believe that having an evidence base is simply good public policy.

I turn briefly to my second amendment, which I call the Family First Community Protect scheme. The amendment requires SAGFA—which was formerly the South Australian insurance corporation and which now comes under the umbrella of SAGFA—to offer insurance to the not-for-profit sector. I would hope that the government, which says it has a significant social conscience, would look seriously at this amendment and support it. I see this as a way forward for not-for-profit organisations. Already, the government, through that arm, insures a number of volunteers within the CFS. If we can offer an opportunity for not-for-profit sport and recreational organisations to buy their insurance protection through the government, then I think that is good social policy.

I would never advocate government going into profit based business insurance. I would never advocate that; it would be against my ideology, but it is certainly within my personal ideology to see government offering a low premium option for not for profit organisations right across the volunteer sector, because volunteers are vital.

We talk about obesity and the fact that we need good health; in fact, the Minister for Health has a forum coming up about overweight children and obesity. Well, one way of getting rid of that is getting them out on a sports track of one kind or another, but they will not be able to get out there if their parents cannot afford to contribute to the exorbitant insurance premiums. If the government underwrites it, there will be some confidence that it will be done at bargain basement requirements.

I would love to delay this legislation a little longer, because it has put so much pain on people anyway; I would ask the government to muscle up to the insurance industry and have a look at what the real claims are. If the claims for what we are talking about here in this chamber are as low and as profitable as I believe they are to the insurance companies, the government might find there is even a surplus in it for it; a win-win for both. Really, it is about time this government started to look at that.

Put it this way. I have trouble with the ideology of this government regularly; I have trouble with the Public Sector Bill and some other bills, but previous Labor governments would definitely have looked at this. This would have been core for what I would call the traditional Labor governments, but I do not see a lot of tradition in this government. I put out an olive branch and ask it to strongly consider this.

To finalise my points on that, the State Strategic Plan update in July 2008 indicated that, on target 2.2, Preventive health, entitled 'Healthy weight', the government's progress was level 3, negative movement, and it had an achievability rating of 4 or 'unlikely' for being the lowest ranking to get on that scale. We have heard members of the medical profession and the public nationwide complaining about obesity epidemic matters, and here in South Australia the government is getting an F for healthy weight according to its own strategic plan. So, this second amendment is designed to reduce costs for the not for profit sector so the sector can engage people and get them into sport.

We are talking about footy clubs, netball clubs, soccer clubs, Scouts, Guides and all those groups that engage with children and get them active. If we do not protect this sector, the state will keep failing on its strategic plan targets and also on its budget, because there will be even more going to reactive health care. Community groups and not for profit organisations support social cohesion and volunteering and are almost always family friendly. They provide services that enable families and children in particular to be active, to learn and to learn to be participants in the broader society.

If we do not support volunteer groups as Family First proposes, we consign ourselves to an internet and gaming console generation who can kill plenty of bad guys at a shoot-'em-up game but who are not fit or who perhaps have poor mental health due to a lack of social engagement and therefore become further isolated and dysfunctional and a further cost to our community in every respect.

I recall the Hon. Terry Stephens in this place has spoken about kids being unable to get into soccer clubs in the north-eastern suburbs. I know this to be true. Why are fees so high to play? Insurance premiums play a significant part in this, I believe, and as a result largely poorer children cannot play sport because they cannot afford it, and that then brings in significant social problems in those districts, about some of which we have heard, with colleagues such as the Hon. Ann Bressington commenting in the media only recently.

Sport is paramount to a healthy lifestyle and environment—or recreation, at least. We therefore need SAFA to underwrite insurance so it is competitive against the private market. Again, in an indirect way, this should also drive the government to discover an evidence basis for claims risk in this sector but again enable the government to monitor claims history by frankly managing the insurance.

A community group recently told us that it tried to hire a hall once a week for meetings, and it was told that its group would need to pay $500 to $600 a year, when it would be using such a facility for only a few hours a week. This is a ridiculous situation that the Minister for Volunteers should take a direct interest in. He should consider our amendments to fix a toxic insurance situation for volunteers, not for profit. I believe that a major component of that high rent was insurance.

I also believe that it is good policy for the government to underwrite insurance for volunteers, because, as I said, it already does so to some extent. The CFS, the SES, surf lifesaving clubs and others considered to be emergency services are backed by government insurance. This is a precedent for governments supporting important volunteer groups. It would be a damn good vote winner for them, too, by the way. Our amendment is a small way of getting the government to throw its support behind all volunteer groups as a pro-volunteer measure.

On this subject, I also want to say that, if the government is so confident that it has the legislation right with its new reckless conduct provisions, it should put its money where its mouth is and back it via insurance. I will not debate it much further now, as the committee stage is to come, but that outlines the general rationale for our other major amendment.

I want to conclude on the subject of waivers. I have to say that this is a difficult subject, and one that we have spent a lot of time on, and I am still uncomfortable about it. We have received strong submissions from those who do and do not support a parent's ability to waive liability regarding their children. I am pleased to hear lobbyists and members saying, 'Surely, this or that is putting families first', because it shows that our party and others are getting a message that is starting to get through to people about one of the most important considerations in legislating—simply, the impact on families.

I have been pleased to see this focus on the lobbying. Sport SA, via its Sport-E publication of 23 March, has passed on its desire that waivers for children be available. Therefore, we have a situation where we know that some want waivers, but we have to ask why they want them and whether there is a better solution. Family First's amendments, I believe, provide that solution.

We are concerned that waivers will not put families first because, arguably, they can have the effect of leaving a parent without recourse to insurance because of unforeseen harm to their children, and also because a child could sue their parents for the waiver; and, remember, at law they have a right to do so once they reach the age of 18, not at the age of injury. In other words, we do not want to support a situation that could see adult children suing parents. I do not think that we are being dramatic by raising that particular point. I think the potential is there, for sure.

This is reprehensible to our supporters, and it could see claims on deceased estates or all sorts of bizarre situations. I know that this is the model interstate, and I am not writing off the issue of parental waivers, but I am trying to indicate that we want to be sure that the arguments are watertight to prevent parents being left high and dry and children being able to sue parents, or we will be back on this at some time in the future.

I place on record my request that the minister table any Crown Law advice that the government has received on this second component of the bill, so that all of us in this chamber can have a close look. In particular, I am interested in whether the provisions on reckless conduct will stand up in a court of law. That is what I am particularly worried about. Will reckless conduct provisions actually stand the test of the courts and serve to be the higher bar to litigation that the government intends it to be?

Family First is favourably disposed to returning recreational service providers to common law coverage, and we ask the government to produce its evidence base of why it does not like this option. I will have a bit more to say on that when I receive some further legal advice, which we are waiting on, during committee.

To me, all of what I have said so far points towards a government that failed to consult publicly and demonstrate its evidence base for this legislation. I believe, therefore, that there is merit in going slowly on this legislation. I know there is pain out there, but let us get it right this time; let us not just create another problem for all these people. Let us get some community consultation so that we know what is the true claims history and insurance premium position in the recreational services and not-for-profit sector. Frankly, that is what the government should have done in 2002. If it is now trying to make amends, it should do so properly. Let us not make another mess that the government needs to fix in another seven years.

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