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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-09-11 Daily Xml
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RECREATIONAL SERVICES

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (14:24): I seek leave to make a ministerial statement.

Leave granted.

The Hon. G.E. GAGO: I rise to inform the council about proposed changes to public liability provisions for recreational services in South Australia. Recreational service providers have argued that they are having difficulty complying with the current Recreational Services (Limitation of Liability) Act 2002 due to the complexity of some of the provisions. The act came into effect at a time when individuals, small businesses and not-for-profit organisations were having difficulty in obtaining affordable liability insurance. The state government developed a package of measures to provide consumer protection and help recreational service providers obtain public liability insurance, including the development of this legislation.

The current act allows organisers of sporting and other recreational activities to register a safety code. A safety code is a list of things that the service provider will do to make the recreational activity reasonably safe for its customers. If a person provides horse riding services, for example, a safety code may require the provider to check that all riders are wearing helmets. As long as the service provider registers an undertaking to comply with the registered safety code and notifies consumers about the registered safety code, the provider will not be liable then for any injury sustained by a person who participates in that particular recreational activity if the service provider complied with the terms of the code.

Section 9 of the Recreational Services (Limitation of Liability) Act 2002 makes it clear that a recreational service provider can modify their duty of care only by using a safety code. To date, only one provider—the Australian Miniature Pony Society Inc.—has registered a safety code, which indicates that the act has not achieved its intended purpose.

Sport and recreational groups have expressed concerns about the operation of the current act. While I am advised that the legislation may have helped ease the insurance costs to industry, the main concern of service providers is that it is difficult, costly and time-consuming to develop and then register the safety codes. The state government has listened to the concerns from recreational services providers that the current law does not adequately support the industry; however, we need to ensure that consumers are not exposed to unnecessary risks when enjoying sporting and recreational activities.

Today, a discussion paper has been released proposing new statutory provisions to limit death and personal injury liability for providers of recreational services. It is proposed to repeal the Recreational Services (Limitation of Liability) Act 2002 and the Consumer Transactions Act 1972 and to incorporate the implied conditions and warranties, and other necessary provisions of the Consumer Transactions Act 1972, into the Fair Trading Act 1987. This will consolidate the rights and obligations of consumers and suppliers arising from implied conditions and warranties into the South Australian Fair Trading Act.

Currently, the implied conditions and warranties provided in the Consumer Transaction Act apply to a list of prescribed services incorporating implied conditions and warranties under the Fair Trading Act. This will bring South Australia's legislation in line with the general implied warranties provisions in the Commonwealth Trade Practices Act and the fair trading acts in other states.

The proposed new provision of our Fair Trading Act will allow recreational services providers to exclude, restrict or modify certain statutory implied conditions and warranties. This will extend only to the providers of liability for death or personal injury; however, under the proposal, a recreational services provider will not be allowed to restrict liability in this way if the service provider is grossly negligent.

The method for a provider to restrict liability under the proposal would be to have the consumer actually sign a waiver. It is important to balance the interests of service providers with the safety of the community. Consumers need to be assured that sporting, leisure and recreational services will be provided in a way that does not expose them to unnecessary risks.

The discussion paper is available from the Office of Consumer and Business Affairs (www.ocba.sa.gov.au), and recreational service providers, consumers and other interested persons are invited to make comments on the proposed model.

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