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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-09-25 Daily Xml
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CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2008. Page 134.)

The Hon. R.D. LAWSON (15:50): I rise to indicate that Liberal members will be supporting the passage of this bill subject to certain amendments. This bill has as its intended purpose the encouragement of charitable donations of food. It has its origin in a proposal from the Young Lawyers group of the Law Society of South Australia. Quite some time ago when it made the initial suggestion (I think it was in 2005), that group pointed to the fact that there was similar legislation in Canada and Victoria, and at that time it was being proposed in New South Wales.

There was opposition to the proposal at that time from SACOSS, which felt that it may send the wrong message, namely, that food donated for the purpose of distribution amongst those who are disadvantaged would mean that those disadvantaged persons would be regarded as second-class citizens; they are being given food for which the provider of the food had no liability in relation to its safety. That was a strong objection from the South Australian Council of Social Services. It has taken the government quite some time to come up with the bill which is now before us and which has passed through the House of Assembly. The 'food donor' is defined in this bill as:

...a person who, acting without expectation of payment or other consideration and for charitable or benevolent purpose, donates or distributes food with the intention that a consumer of the food would not have to pay for the food and to the agents and employees of such a person.

The bill provides:

A food donor or a distributor incurs no civil liability for loss of life or personal injury arising from consumption of the food donated or distributed.

A proviso in new subsection (3) is;

...the immunity does not operate if the food donor or distributor knew or was recklessly indifferent to the fact that when the food left the possession or the control of the donor it was unsafe within the meaning of the Food Act...

That is an easy statement to make. However, when one looks at the definition of 'unsafe' in the Food Act, in particular in section 8, one will see a fairly abstract definition. The most important point we wish to make in relation to this measure is that it does not go far enough. It is a good thing, and we support relieving from civil liability those who are generous enough to donate food. But why only those who donate food? What about the many people in our community, the community-spirited people, who donate their time and in other cases goods and who provide advice, for example, to charitable organisations? They, too, suffer the possibility of incurring some liability. In another place I think the case was mentioned of those who act as honorary auditors for the thousands of charitable associations that exist in this state.

Many of them do it for no consideration whatsoever and, in fact, it is something of a burden. All of us would have been members of organisations which have an annual general meeting, and there is always some difficulty, if it is a small association, about getting an auditor to audit the accounts. That is simply because there is a reluctance, not unreasonably, on the part of professional accountants in many cases to provide that service, because it is difficult to provide, and difficult to check. They expose themselves to possible liability if they do not do it with the thoroughness of a professional auditor, yet they are open to civil action.

If a person gives food to a food distribution centre, they are relieved from civil liability, but if a person gives service or advice they are not. We believe this legislation ought be extended to recognise that it is not only food that is given. Many other community-based organisations provide other services, support and help and donate goods. What is it about the donation of food that should lead to somebody being relieved of civil liability, but if someone provides blankets, electrical equipment or anything else to the Society of St Vincent de Paul they are technically left open to a civil claim?

The most serious omission in relation to the presentation of this bill and the debate in another place is that it has overlooked entirely the major donor of food in this state. The Attorney-General said that there is consultation with the Attorney-General's Department with SACOSS, which had certain philosophical objections, and with people within the Law Society, but what about Food Bank South Australia? It is a non-denominational, charitable organisation that sources donated and surplus food from the food and grocery industry and distributes it to welfare and community agencies that provide food assistance to people in need. Food Bank SA is a member of a national group of affiliated food banks that operates in New South Wales, Queensland, Western Australia and Victoria.

Looking at the latest annual report of Food Bank, it actually distributed food in 2007 to 535 groups in South Australia. The Chairman of Food Bank, Mr Stephen Gerlach, a well respected lawyer and businessman in Adelaide, and also the Chairman of Santos, says that the demand for its services has increased by about 20 per cent a year. In 2006-07, Food Bank distributed more than 800,000 kilograms (800 tonnes) of food to welfare agencies in South Australia. It predicts that the demand will reach 1.7 million kilograms by 2015, so it is an increasing demand. Food Bank acknowledges the support it has received from the state government, and on its website it expresses appreciation to the Premier who, on behalf of the state government, provided certain financial assistance to this important organisation.

Mr Gerlach goes on to say that about 65 per cent of the food and groceries are donated by South Australian companies and through food programs run in conjunction with financial sponsors, and they include staple foods not normally donated by food companies. It established premises, a satellite Food Bank operation, in Mount Gambier in 2005. At the time of this report, it had started developing an agency in Whyalla; the council there had provided land, and I understand that that program is developing. Food Bank partners with other organisations. One example given is the School Breakfast Program in partnership with Save the Children Australia and Australian Red Cross. That program supplies nutritional foods to schools throughout the state, including in Aboriginal communities.

When one looks at the 535 organisations to which Food Bank provides food, we see that well-known organisations such as Anglicare, St Vincent de Paul, the Baptist Church—through some 25 organisations; there are 17 Lions Clubs, Minda Incorporated, the Lutheran Church, 35 Rotary Clubs—distribute food to disadvantaged persons in South Australia. I point out that 24 organisations under the auspices of the Salvation Army are also registered, and Uniting Care Wesley and a number of other organisations participate in this program.

There is no suggestion in the material provided to the parliament that that organisation has been consulted in relation to this program. The reason I raise the necessity to consult with Food Bank—and I do ask that the minister in his second reading response provide some information in relation to consultation with Food Bank—is that Food Bank, which employs a staff of I think five or six to provide these services, actually makes a charge to the groups. It claims that, in order to meet its operating costs, the groups that receive Food Bank pay a nominal fee for handling the food. According to its website:

The food costs about 20 per cent of the retail price, which allows welfare aid groups to divert the significant cost savings to other assistance programs.

It further states:

Membership of Food Bank is open to all welfare groups that provide food assistance to disadvantaged or marginalised people. Groups must carry public and product liability insurance to a minimum of $10 million and are required to update their information.

Here we have an organisation which is the principal donor of food to disadvantaged persons in South Australia and which is doing it on a very large scale, but which is charging a modest fee to make some contribution to its expenses and would appear, therefore, not to receive the benefit of this legislation that is before the chamber. That does seem to me to be a major omission. If one provides relief to, let us say colloquially, every Tom, Dick and Harry who wants to make a donation but does not provide the same relief to the one organisation that is established for the very purpose and is dedicated to providing those things, that seems to me to be an entirely unfair proposition.

I have tabled today amendments which will seek to extend the scope of this legislation to not only food but also goods and services. It is for that reason that we make that amendment. However I do think that it is important that at the committee stage we pursue with the minister not only the question of Food Bank, whether or not it is included, whether or not it has been consulted, whether or not it seeks to be included, but also the question of the interaction of the legislation with the Food Act. This is quite a good measure, but it is nowhere near as good as it could be. We support the second reading.

Debate adjourned on motion of Hon. J.M. Gazzola.

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