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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 (resumed on motion).

(Continued from page 249.)

The Hon. D.G.E. HOOD (16:56): Family First supports the second reading of this bill and, in fact, we are pleased that it has been introduced. We have often wondered why it is not already law. I think it is a good initiative, so at this early stage we indicate our likely support for this bill.

Essentially, it provides that if someone donates food in good faith they are protected from lawsuits over the quality of the food and any potential lawsuits that may ensue therefor. This bill enshrines in our law the principle of what is known as being a good Samaritan which, of course, is a story that originated from the Bible a couple of millennia ago. The story, for those who are not familiar with it, tells of a man travelling from Jerusalem to Jericho who was attacked by thieves who left him for dead at the side of the road.

A Levite (referred to as a countryman in the Bible, which is a particular tribe of that region) passed by on the other side of the road but a Samaritan (that is, someone from Samaria) who had little to do with the Israelites—and, in fact, whom the Israelites often regarded with some suspicion—saw that the man on the side of the road was near death or in a very bad way and he went over to him, bandaged him up and assisted him, then took him to an inn where he paid the innkeeper a sum of money to take care of him as the Samaritan had to go away on business.

The Samaritan said that he would come back and take care of any additional expenses but asked the innkeeper to take care of this man. Essentially, that is the story of the good Samaritan from the Bible, and it is a wonderful illustration of charity. I think that essentially forms the basis for the model upon which this bill is based.

Unfortunately, in today's world we would not be surprised in the least if the injured man then complained about the bandaging job that the Samaritan did and then actually sued him for mental distress or something else. Unfortunately, Australia is becoming a litigious society. We are not as bad as the US yet, but certainly we are heading down that path, or so it seems, where we threaten to sue anyone who looks at us the wrong way and, in some cases, we will haul anyone before the Equal Opportunity Commission and the like, and that is certainly not something we would support.

It applies to all of us, and I think most of us who have been in political life for a little while—and, for me, indeed it is a little while—have had our run-ins in that regard in one way or another and, if not, I suspect it is coming your way if it has not already. It is not good for our society and it does not surprise me in the least that supermarkets throw their food out rather than face the risk of litigation if they make it available to those who would really benefit from having it.

I could not find any Australian estimates with respect to the amount of food involved, but certainly the Sustainable Development Commission in the UK estimates that British supermarkets throw out some 1.6 million tonnes of groceries every year. I was astounded to hear that—1.6 million tonnes in just the UK alone. We are at least looking, therefore, at hundreds of thousands of tonnes of groceries in Australia, I would estimate, and much of it, as has been said by others, is not even past the so-called use-by date. It is a tremendous waste, especially when many in the community—and I am thinking particularly of those on pensions or even in worse situations, such as the homeless—are doing it so very tough at the moment.

This bill appears to excuse carelessness and negligence, even to the extent of causing death or personal injury from the consumption of bad food. There are several further degrees of mental knowledge; that is, the bill appropriately notes in new subsection (3), relating to reckless indifference, that the safety of food will not afford protection. Neither will 'wilful blindness' or an intent to distribute bad food be protected, involving higher levels of mental complicity. The bill seems intent only to excuse carelessness and simple negligence which, in my opinion, is appropriate.

The bill proposes a different standard of care when food is donated compared to when it is sold. While it is true that we should not imply that those accepting donated food are second-class citizens, I think that we should imply that, by donating food, there is an implied waiver of the liability for the donor within this so-called transaction.

I am also aware of the discussion in the other place regarding expanding the scope of the legislation. Indeed, the Hon. Mr Lawson mentioned it in his contribution a little while ago. I have had discussions with the member for Davenport in the other place, with whom I raised some concerns regarding some of the amended wording that he has proposed. In essence, as I understand it, the member for Davenport did want to expand this bill to cover all goods and services. It is a commendable proposition, and a sensible argument used is that there is no logical reason to put food in a separate category from other goods or services.

With respect to services, I have personally heard of a story of a mum who drives elderly ladies to a hairdresser and to doctors' appointments as a volunteer at the Goolwa Community Centre. She was apparently informed that if there was a mishap during this service, if you like, or the good deed that she was providing for the people whom she was driving around, such as a car accident, she could then be potentially liable; that is, she could be sued. Obviously, taking a stick (if you can put it that way) to people who volunteer their time is a great way to kill any community spirit, and it is indeed bad for our community and for South Australia.

Family First certainly supports the concept of reducing liability in these cases; that is, we believe that there is an argument that this bill should not only apply to food. No liability provisions for professional services have also caused me concern. The value of a professional service is in its competency and excellence. An engineer donating his time to build an orphanage is of no use if he designs the building negligently and it actually falls down. I would also have concern if the proposed amendment would allow him to circumvent building codes. On the topic of professional services, would a lawyer under the proposed amendments, who does pro bono work, for example, win—

The Hon. A. Bressington interjecting:

The Hon. D.G.E. HOOD: No; it does exist; I can assure members of that. Would a lawyer, who won an asbestos settlement, for example, be excused from liability for negligence if he or she allowed the compensation to be stolen from a trust account due to poor accounting? That is one hypothetical example. Perhaps, I guess, is the answer. The alternative wording debate in the other place was broad. It is hard to criticise the amendment because it would encourage charity, something that we desperately need in South Australia and, indeed, across this nation. I am assured by the member for Davenport that his amendments will not allow these unforeseen outcomes to occur, and I certainly hope that that is the case.

I certainly want to support an expanded version of this bill where possible. Family First is very sympathetic to the comments made by the Hon. Mr Lawson and, indeed, by the principle, if you like, that the member for Davenport has put forward, so we look forward to hearing the debate about those amendments in the committee stage. In short, Family First is supportive of the second reading of this bill. I indicate likely support for the bill. We are certainly sympathetic to the amendments, and we look forward to their discussion and debate during the committee stage.

The Hon. R.P. WORTLEY (17:04): I welcome the opportunity to rise today to support this bill. The Attorney-General asserted in the other place earlier this year that the purpose of this bill is to encourage food businesses, as well as individuals, to donate safe, surplus food to charity. As he noted when reading the bill for the second time:

Our law already says that a good Samaritan who comes to the aid of another in an emergency is not legally liable for any harm, as long as the good Samaritan was acting in good faith and without recklessness.

This bill, as an extension of that excellent principle, aims to confer upon food donors and distributors the same legal protections as those which apply to good Samaritans.

Members might question why such a measure is needed; after all, surely we all recognise the value of donating surplus food items to the charities that need them so desperately for distribution to the homeless and hungry. Surely we all know that poverty and severe hardship affect more than one million Australians. Indeed, the ABS census data shows that the number of homeless in our state at the time was 7,962. That is nearly 8,000 people. Of these, Homelessness SA advises that more than 3,000 were living in rural and regional areas.

We can all well imagine the value to charities serving the hungry of bread and muffins that are a day old but still fine for toast, of meat perhaps minced too finely by a butcher, or of vegetables that are perfectly good for pies and casseroles even if they are not pristine in appearance. I will go into further detail on the growing need for food and related assistance in our community in a moment. First, I would like to take the opportunity to clarify why this bill has come into being.

We all know how much food can be left over at the end of the day at shops, bakeries, delis and markets. It is probable that many businesses are simply disposing of that surplus food to landfill, and we should ask ourselves why. A certain amount of anecdotal and other evidence suggests that it may be due to apprehension that, if the ultimate recipient suffers ill effects from the food, legal liability may be incurred. Such liability might conceivably accrue to the donor or the distributor. This is a reasonable apprehension but one we are anxious to dispel. This bill defines a food donor or distributor as follows:

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

The bill offers this protection to donors and distributors so defined:

… from civil liability for loss of life or personal injury arising from consumption of food donated or distributed except if the donor or distributor knew or was recklessly indifferent to the fact that when the food left his or her possession or control it was unsafe within the meaning of the Food Act 2001.

The exception within the provision is intended, of course, to prevent the dumping of contaminated or otherwise unsafe food on charities to avoid proper rubbish disposal. Such unscrupulous operators will not be protected. If the donor or distributor knows the food is unsafe or is reckless about its safety, liability remains. So as to ensure vigilance as to safety, the bill provides for a review after two years. The government has also undertaken to make available to food distribution charities food safety information so that recipients might be properly protected.

In closing, I would like to say a few words on the context for this bill. The context is community need—right here, right now. More often than not we perceive poverty and hunger as part of the plight of developing countries, and we gladly contribute to charities that distribute food and related aid in countries overseas. However, it is the absolute truth that many South Australians are experiencing food insecurity. This means that they have limited access to good nutritious food or uncertainty regarding access to that food. As a result they go without meals, eat less food or less nutritious food, or attend food distribution charities.

Food insecurity can impact on single people, families, refugees, the homeless, those on low incomes, those who are abused or addicted, people with mental illness, and transients. It can also impact on the working poor—people who are neither homeless nor unemployed but who struggle to make ends meet for themselves and their families. They struggle to make ends meet in a society that has been taught (by such experts in self-interest as John Howard and the gang) that, if you are in need, it must be your own fault. That is why the government has introduced this bill.

The provisions of the bill are the result of consultations with the charitable sector through its peak body, the South Australian Council of Social Services, which has supported the bill. Similarly, Restaurant and Catering SA supports the measure and has indicated that it expects food donations by the restaurant and catering sectors to increase substantially as a result of this bill. I commend the New Lawyers Committee of the South Australian Law Society for its work on the matter. Finally, I am delighted to commend this bill to the chamber.

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


At 17:11 the council adjourned until Tuesday 14 October at 14:15.


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