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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-16 Daily Xml
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CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2008. Page 250.)

The Hon. M. PARNELL (15:40): The Greens will be supporting this bill, which aims to encourage food businesses and private individuals to donate safe surplus food to charity. Even though it is one of the shortest bills we have seen, it raises some very fundamental questions that in fact go beyond the simple text of the bill before us.

The first question that it throws up is whether, as legislators, we should be aiming to legislate based on evidence of problems in the community or whether this is a form of legislation that is based on a philosophical position or taking a matter of principle. I say that in relation to the bill as presented and also in relation to the amendments that are on file from the Liberals and Family First, and I will speak to those in a little while.

The evidence for the bill is scant, but that does not mean that the bill is not deserving of support. In its report on the bill, the government said:

Although we cannot be certain, the government thinks that an important factor in causing businesses to dispose of food rather than donate it is the fear of legal liability should a consumer suffer ill-effects.

We are also told that donations of food in Victoria increased after similar legislation was introduced in that state. I also understand (but I do not know for certain) that no food donor to charity has ever been successfully sued in Australia for ill-effects resulting from that food. However, I am prepared to accept that, if there is a perception that you might be sued, that could influence some food businesses not to donate. I said there is very little evidence, but we all know that a large amount of food is thrown away. What we are doing in this bill is speculating that one of the reasons why that occurs is that people do not feel comfortable donating it, because they might be sued if something goes wrong.

I am not normally one to pander to perceptions as a reason for legislating. Before entering parliament, I spent some time working in community groups, and I can clearly remember lobbying members of the Labor Party in opposition (Ralph Clarke was one, and Annette Hurley, who were shadow ministers), and they agreed with me that a certain provision we were discussing—an amendment to the Development Act—was bad law, but they said they had to support it because of the perception that if they did not they would be anti-business. They said that when they got into government they would repeal it, which of course they never have—and I am referring to section 48E of the Development Act.

In relation to this bill, we know that the risk of a food business being sued for its donation of food is low—in fact, it is so low that, to my knowledge, it has never happened. However, I am prepared to accept that the perception is enough to dissuade some businesses from donating and I am prepared to counter that perception through legislation and, therefore, support this bill.

That pretty much disposes of the bill as tabled. However, this is clearly a live issue, because there are a number of amendments on file and the numbers, on my reckoning, appear to be quite tight. So, I will spend some little time addressing the amendments—not in detail (we will do that in committee) but just the general principles involved.

The effect of both the Family First amendment and the Liberal amendment is similar in one way, and that is that they seek to expand the protection offered by the bill to goods other than food and to services as well.

The government bill, on the other hand, is only about donations of food. I appreciated the briefing I had from government officers. I also had a short discussion with Mr Iain Evans in another place, the lead speaker on this bill for the opposition, and an even shorter discussion with the Hon. Dennis Hood to clarify the intent of his amendment. My position on the government bill, whilst I support it, is to a certain extent dependent on how it responds to the issues raised by these other amendments.

The first thing we need to clarify is the difference between negligence and recklessness, because the concept of recklessness appears in all of the bills, but the distinction is most stark in connection with the amendments proposed by Family First and the Liberals. If we take, for example, the Liberal amendment, it basically says that 'a person incurs no civil liability for loss of life or personal injury or damage to property arising from the provision of goods or services to another if, in providing the goods or services, the person acted...' and a list of five criteria follows, one being '(d) without recklessness'.

It is important to explore that concept because, when we talk about civil liability, we are primarily talking about a civil standard of negligence. I am sure other lawyers might have a slightly different take on it, but there is a reasonable consensus that recklessness requires a subjective awareness of the likelihood of harm, but negligence can be satisfied if we can say that someone in that position should have been aware of the likelihood of harm—that is the main distinction.

We could take, for example, a carpenter doing free work for a charity, as that would fall within the protection offered by the Family First or Liberal amendments—a service being provided for no charge to a charity. If he is putting together some roof supports for a charitable project and says, 'I know that this joint needs to be secure; normally I would use four nail plates, but two plates is probably okay and will probably do', and the building falls down, you would probably be able to make a case for recklessness. The case might be, 'Well, I'm doing it for free, nail plates are expensive; I think two will probably do.' There is probably a case for recklessness in that situation.

On the other hand, you may have a carpenter who was not aware that certain types of nail plates had been found to be faulty. Perhaps it is a carpenter who does not read Hansard, for example, as we have discussed that matter at some length, so does he use four nail plates—

The Hon. R.D. Lawson: There wouldn't be any carpenters in that category.

The Hon. M. PARNELL: The honourable member says that there would be no carpenters in the class of persons who do not read Hansard, but I am sure he is wrong. Let us say he uses four nail plates but takes them from stock that is several years old. The building falls down, but you would then say that the carpenter was negligent. He did not know that there had been this debate and did not deliberately use faulty nail plates. However, even if they did not know, they should have known. That is the distinction in the test for negligence.

Negligence is a higher standard and more situations are likely to be caught under the umbrella of negligence than of recklessness, but how many it is impossible to say. Here we are talking about a continuum of civil culpability. At one end of the spectrum you have people who behave in a completely proper, thorough, detailed and comprehensive way that is beyond reproach, and at the other end of the spectrum you would have something such as deliberate sabotage. In between those two you would have a range of standards. The question before us is: where should the line be drawn in relation to the people who provide services for fee and where should it be drawn in relation to people who provide services for free to charities, and should the line be different or the same? I think those lines are probably very close together, but I cannot say exactly how close together they are. We will never know what the difference is between the two standards—negligence or recklessness—unless the matter is tested by a court.

One of the principles that I understand has driven the Liberal amendments—and perhaps also the Family First amendment—is the question: why should we treat one part of society's generosity differently from some other part of society? Why should we treat food differently from other goods and services? The answer that the government gives relates to the issue of perishability, the issue of shelf life and the fact that the risk is clearer and more easily discerned in relation to food.

Putting that in the context of South Australia and the volunteer sector, we know that there are hundreds of thousands of South Australians who volunteer and who donate goods and services and their time. I will give a couple of brief statistics taken from the New South Wales Centre for Volunteering. It did not do a nationwide study, but it reported on the Australian Bureau of Statistics that had done a nationwide study showing that in Australia in 2006 5.2 million people (which was then 34 per cent of the Australian population) aged 18 and over participated in voluntary work. Those people contributed 713 million hours to the community, an average of 136 hours each per year, or 2.6 hours per week

When we look at the types of people who volunteer, we find that they are dominated by people who are in more senior roles in the community: people in managerial, administration, professional and advanced clerical roles, service workers and those in lower paid areas of work. There may be many reasons for that which we do not need to go into. The Bureau of Statistics study also showed that the rate of volunteer participation is slightly lower in South Australia than in other states. The difference is not huge, but it is a slight drop, partly because I think our population is older and the peak volunteering age seems to be between about 25 and 45, which no doubt coincides with people with younger children, because a lot of volunteer activity is connected with schools. That is a little background about volunteering.

The key question for me in relation to the amendments to this bill—because they do go so much further than the government's bill—is: what barriers are standing in the way of South Australians being more generous in supporting charitable or community endeavours? If those barriers are legal barriers, then let us have a look at removing them. If the barriers are social or cultural, then perhaps legislation is not the way to go. We can ask ourselves a whole lot of subsidiary questions, such as: why as a society are we increasingly selling our second-hand goods on eBay or through the Trading Post rather than giving them to charities or to op shops, as we used to nearly always do? The question is: is there a risk, a threat or a perceived risk of legal action that is standing in the way of people donating goods, time and services?

Another fairly fundamental question that arises is whether the standard should be lower for donations than it is for paid work. We know, for example, when it comes to some of the professions, that there is no difference in standard. If, for example, you are a lawyer and you provide your legal services for free, then you are, in all likelihood, covered by your professional insurance whether or not you have been paid for the job. Private law firms regularly do pro bono work. As a private solicitor in the country in Victoria many years ago, my colleagues and I would never charge for the incorporation of a non-profit group. It was regarded as a service to the community. Had we got it wrong—had we made a mistake, had we been negligent—our insurance would have picked up the tab if that charity chose to sue us. As members would know, I spent 10 years before coming into parliament working as a lawyer for the Environmental Defenders Office, and we did not charge for our work, as a rule: it was basically a free service, yet I was covered by a Law Society insurance scheme for the whole of that time. It did not matter that I was not being paid for it. That is the situation for lawyers.

What I do not know is what the situation is for the other types of professional or trades services that people might choose to donate to the charitable sector. It seems to me that if people are covered by insurance policies there is no good reason for having a lower standard apply to the work that they do for free compared to the work that they are paid for. But I am sure this is not universal. There will be cases where an individual's or firm's insurance will not apply for work that is done outside the paid work environment, but that is something that I think we need more information on.

When talking to Iain Evans, he mentioned the issues around service clubs, in particular, groups that he has been associated with (I think Apex was one), and he talked about the very heavy insurance premiums that they have to bear to enable them to do their work. I think that is a problem for us as a community. What we need to look at is whether the types of amendments that are before us would actually do anything to remedy that situation.

So the question I have is: would a service club's insurance premiums for their charitable works be lower if they had the sorts of protections that are envisaged by the amendments before us? I think if the answer to that is yes, that their insurance premiums would be much lower and they would be able to do a lot more work in the community with the resources they have, then a reasonable case for these amendments has been made, but that is information I do not have.

I mentioned a philosophical question about standards applying for paid and unpaid work. I note that the member for Heysen (the shadow attorney-general in another place) said at the very conclusion of the debate in the other place:

I have to put on the record that I absolutely agree with what the member for Davenport is putting, that is, where someone wants to make a donation for a charitable or benevolent purpose, no matter what the nature of that donation, whether it be goods or services, whether those goods be food or other than food, it is entirely appropriate to have a principle that we apply in this state saying that, so long as you are not reckless about the way in which you do that, we will protect you from liability.

So that is the fundamental principle.

However, I come back to where I started, to say: is there a practical application of that principle so that the community will be encouraged to provide more charitable services—either through removal of the fear of litigation or, in the case of insurance premiums for charitable groups and service clubs, that burden will be reduced? So that is a pretty important issue for me.

To summarise the Greens position on this bill, as I have said, we support the heart of the bill as presented by the government. We are prepared to tackle that perception that there is a risk of being sued in relation to food. We will support that. In relation to the Liberal and Family First amendments, we support the philosophy behind those amendments—what they are trying to achieve—but I recognise, as I think the movers of those amendments probably do also, that they have not been through a thorough process of evaluation and consultation, and I think that is a process we need to go through.

So, what I have put to the Attorney-General's office is that, if I can get satisfactory assurances from the Attorney-General that these issues (such as the general issues about donations of other goods and services) will be the subject of a timely public consultation process, then I am inclined to support the bill unamended. I do not want to hear that this bill is coming back for a review in two years as a report to parliament; that is not good enough. I think these issues are important, and I do want to see them debated in the community. In the absence of any such commitment from the Attorney, I am likely to support either the Liberal or Family First amendments, or some variation on that.

My assessment of what that means in terms of the fate of this bill is that one or other of those amendments is likely to get up, so we will probably end up in a deadlock conference, and the ball will well and truly be back in the government's court to show that it is serious about promoting philanthropy in this state. On the other hand, the government might say, 'Blow it! It's taken us five years; it took us a while to get SACOSS on board'—it was initially reluctant, as I understand it—'We'll just throw the whole thing out.'

I look forward to the Attorney-General's response, but it seems to me that the amendments raise important questions that deserve consideration. If we cannot get a commitment to consider them through a proper, thorough and timely process then we may as well support them in the bill now.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (16:01): I thank honourable members for their contribution to the debate and for the expressions of support for the principle of the bill. I particularly thank the Hon. Mr Parnell for his very eloquent contribution in relation to the issues that face us when we consider the amendments before the council. That is, of course, something that we will do when we resume at a future time.

In answer to the Hon. Mr Lawson's question about Foodbank, I confirm that Foodbank was consulted in the development of this proposal. The Attorney-General's office had discussions with Mr Leigh Royans, the General Manager. Foodbank receives donated food and distributes that food in some cases at no fee, and in other cases at a handling fee that is determined by the weight of the goods. This bill has the potential to increase the amount of food donated to Foodbank, which, as the member says, faces an ever-increasing demand for its help.

The Hon. Mr Lawson also asked whether Foodbank would receive the protection of the bill, given that it has a handling charge for the supply of the food. I understand that Foodbank donates outright a proportion of the food it provides and, where food is donated, the protection of the bill applies. Where a handling charge is made, however, it is doubtful whether the donor would fulfil the requirement that the donor must act without expectation of payment or other consideration; probably not. Foodbank has not asked the government to alter the bill on this point.

Bill read a second time.

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