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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-26 Daily Xml
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CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. R.D. LAWSON: I move:

Page 2, line 3—

Delete 'Food Donors and Distributors' and substitute:

Charitable Donations

This is the first of a series of amendments listed on the same amendment sheet. It was originally proposed, in the amendment of both myself and the Hon. Mr Hood, that the provision in the bill introduced by the government be removed entirely and replaced with another provision which would extend the scope of this legislation from merely food donation to include other forms of donations and services and goods which might be the subject of a charitable donation.

Amendment No. 1 is consequential on my amendment No. 3, which I will move in due course; however, I believe the committee will sufficiently understand the nature of what I am saying to make this a test clause.

Currently, the government's bill contains section 74A dealing with food donors and distributors. We support that and we do not seek to change it. However, what we seek to do is add another section, an entirely different section, which is couched in very similar terminology but which extends the scope of this legislation from mere food donations to also include the donation of other goods and services for charitable or benevolent purposes. Our clause will provide that a person incurs no civil liability for loss of life or personal property or damage to property arising from the provision of goods or services to another if, in providing the goods, the person acted without expectation of payment or other consideration and for a charitable or benevolent purpose and with the intention that the consumer of the goods or services would not have to pay for them.

The amenity does not operate if the person knew or was recklessly indifferent to the fact that when the goods left the possession or control of the person they were in a state that was likely to cause harm to a person or, in the case of services, if the person knew or was recklessly indifferent to the fact that the goods were provided in a manner likely to cause harm to a consumer of the services or to the property of the consumer.

In the second reading contribution I (and, I think, a number of other members) indicated support for the general concept of extending the same protection which is granted to the donors of food to people who provide—whether it is furniture for a benevolent purpose, whether it is clothing or whether it is volunteering to repair the playground or build a fence or a shelter at the kindergarten, etc. We believe that persons who are charitably minded and are prepared to donate their services—whether that be their physical labour or their intellectual capital—without expectation of payment or reward, for a charitable purpose, ought not be deterred from doing so by the threat of legal action.

I think it is important to say that if, however, a person donates goods knowing that they are in a state that is likely to cause harm, then they will not be entitled to the protection, where they are recklessly indifferent. For example, if somebody gives a toaster to the Scouts for their use, if they are aware that the thing is not correctly wired or they themselves have felt a slight shock, they will not be entitled to the protection because that would be a gift made in circumstances where it was likely to cause harm to a consumer.

We accept that donations of food are important but we also believe that other charitable donations are equally important. What I am seeking to do, by moving the amendment in the form that I have, is to provide a clear division within the bill. The government wants their proposal (food donors) to go through now and be introduced before Christmas. It can do that and proclaim it to come into operation straight away. We also want to have the provision about goods or services. I suspect, given the attitude that the government has expressed in a number of its discussions with members, that it has reservations about services but it is not actually prepared to rule it out—and that is fine; it does not have to proclaim it immediately and it can undertake the consultation it says it is going to undertake—that is fine. Ultimately, a two-year review will occur two years after the services provision comes into operation and, likewise, there is a two-year review after the food donors provision comes into operation. I therefore urge members to support the amendment.

The Hon. P. HOLLOWAY: The government opposes these amendments. I agree with the Hon. Robert Lawson to the extent that we should use clause 1 as the test clause in relation to his amendments. His amendments would reduce the current legal protection of the most vulnerable people in our society without any evidence that this will produce a corresponding benefit. Before doing such a thing, we should hear what the public has to say about it. We should also find out whether, in exchange for these lost protections, we will gain a large increase in donations of goods and services. At this stage, that is a mere hypothesis.

What these amendments seek to do is protect anyone who provides goods or services to another person, without expecting payment, for a charitable purpose as long as the person intends that consumer should not have to pay for those goods or services. The purported protections would extend to property damage as well as to injury or death. This proposal includes the provision of any goods—motor vehicles, power tools, furniture, building supplies, anything at all—and also any services. The proposal is that the provider of the goods and services should be liable only for reckless indifference and not for negligence.

The criticism that is easily levelled at this sort of legislation is that it creates one law for the rich and another for the poor. The food donors proposal does mean that the legal protection of consumers of donated food is less than that of consumers who pay for food. We thought long before doing this. What determined us to do it is that we have reason to think that quantities of safe food are being wasted in South Australia because potential donors fear legal liability. Food is perishable. If a restaurant or caterer prepares more food than is sold on a given day, the options are either to waste the food or to donate it.

The aim of the bill is to tilt the balance in favour of donation. We looked at the interstate experience and the substantial increase in donation of safe food that has resulted there because of similar laws. We believe that, on balance, it is worth adjusting the standard of care in this field because, since most donors will be businesses that are experienced in handling food, the risk of harm appears low, even if the standard of care is reduced. The detriment of this adjustment will be outweighed by the expected large increase in donations, so we believe.

The bill, however, proposes a two-year review to see whether we are right about that. We know that SACOSS will monitor the results of the bill with great interest. The government would be concerned, however, at the entrenchment of a lower standard of care towards the poor right across the board without at least some public consultation. For example, what about services provided by public hospitals? The provision of free medical care to the public is very likely a charitable or benevolent purpose. Does that mean the public patient should not expect the same standard of medical care as those who can pay? If the public patient is injured by medical negligence, why should the hospital not be liable?

Or consider the lawyer who does free work for refugees: why should those clients not get the same standard of professional representation as the businessman who wants to sue for defamation? What about the mechanic who, for no fee, services a vehicle used by a charity? Should he not have to take just the same care as he does for his paying customers? The only justification for creating these risks could be if we were confident that the immunity would lead professionals and traders to donate many more services, and as yet we do not have the evidence that they will.

Do we really expect that public hospitals will provide more medical services if we pass this bill, that private schools will offer more scholarships, that plumbers, carpenters, painters and builders will start setting aside more time to provide free services to the disadvantaged? Perhaps they might, but we just do not know because no work has been done to find out. Services by their very nature are unlikely to be wasted. An unfilled appointment is, for most professionals, an opportunity to catch up on other work rather than time likely to be given away or wasted.

With imperishable goods their shelf life is indefinite, and if a trader has ordered a large quantity it is a matter of waiting for the items to sell or perhaps discounting them or returning them to the supplier, depending on terms of trade. It is not a question of either give them away or throw them out as it is with food. Where then is it evidenced that donations of goods and services will increase so substantially that it is worth lowering the standard of care? How do we know that it is fear of legal liability that is the real barrier to the donation of goods? We just do not know that and, before proceeding with a measure like this, we should take the trouble to find out.

Keep in mind that many of these traders will carry insurance, which might well cover all the services they provide in the course of their business, whether or not they are paid for. In that case, all this amendment does is shift the loss caused by the trader's negligence from an insurer, who has taken a premium to assume that risk, to the charity or the poor person receiving the service. And where is the merit in that?

What will happen if this parliament passes these amendments and next year an electrician makes a careless mistake in rewiring, say, a women's shelter? Suppose that a child staying in the shelter touches a wire that has carelessly been left live and suffers permanent injury. Unless the child's guardian can prove that the electrician either knew of or was recklessly indifferent to the danger, there will be no legal recourse. The parents will bear the loss, even if the tradesman is fully insured for such risks. What will the public of South Australia think of that?

There ought to be wide consultation if the proposal is to go any further. The government has, between the houses, invited SACOSS to comment on the opposition's amendments in their earlier form, but SACOSS has declined to do so. SACOSS tells us that more investigation by its staff and consultation with its members and with the wider community sector would be required before it could form a position. That is an entirely prudent response and the council should learn from it.

As introduced, the bill deals only with donation of food. It seeks to stop the appalling waste of good food that goes on every day at the moment because donors fear legal liability. The government has reason to believe that the bill as introduced can immediately and substantially reduce that wastage. That is what we have seen happen with similar laws in Victoria. The industry tells us that it will happen here. It would be most unfortunate, especially at this season of the year and with parliament about to rise for the summer recess, if the council did not pass this bill in its present form, but that is not to say that the government would not consider extending legal protection to the donors of other things. We are certainly prepared to examine the issue.

The government proposes that the bill should now not be amended. Instead, the government offers that, if the bill is passed unamended, it will by June 2009 publish a discussion paper inviting comment from any interested person or organisation on any legislative action that could be taken to increase the donation of goods and services and the making available of premises for charitable or benevolent purposes, without unacceptably increasing the risk to the safety of recipients.

The paper would solicit comment on the effects of such possible amendments on charities and other non-profit organisations, their donors, their insurers and the recipients of charity. The government further proposes that, after analysing and weighing all submissions received, it should publish a report by the end of October 2009, setting out its conclusions on what reforms should be made and its reasons. If the report proposes reforms, it shall also include the government's proposed timetable for reform. For the reasons I have given, the government opposes these amendments, and I ask the council to support the bill.

I think all of us would support the thinking behind the amendments, but I hope I have indicated with the examples given that there are potentially some difficulties and complexities with that course of action, and I believe that it would be far preferable if we were to adopt the course of action that we have proposed. The government accepts that it needs to look at this issue, and the ideas behind what is being put forward have merit, but we really do need to do that work before we put those ideas in legislative form. So I ask the council to support the bill in its original form and, as I said, the government undertakes to do that important work which will provide us with the background to which these sorts of issues can be addressed more comprehensively in the future.

The Hon. R.D. LAWSON: I want to respond to a couple of the points made by the minister on behalf of the government in rejecting this amendment. It is suggested, for example, and the question is posed: why should a lawyer acting for a refugee service be subjected to a lower standard of care than one who is acting for a paid client? However, this amendment does not touch that issue at all: this amendment is about exempting from liability for physical harm or damage done. That is emphasised in the first line of proposed section 74B(1), which states: 'a person incurs no physical liability for loss of life or personal injury or damage to property'. If a lawyer acting for the refugee service gave wrong advice as a result of which someone failed to obtain the opportunity to stay in Australia or did something else because it was not good legal advice, they would not be covered because this legislation is limited. It is limited to liability for loss of life or personal injury or damage to property, and I do not believe that is any consideration at all in relation to legal advice.

The minister mentioned that public hospitals providing free treatment might be exempt from liability by virtue of this and, frankly, I had not thought of that. However, public hospitals do not actually act for charitable or benevolent purposes. Public hospitals act in accordance with legislative requirements on them. Many of them provide so-called free services to people but they are actually remunerated through Medicare and other mechanisms. Whilst they might not receive any payment from the recipient, they are remunerated through the public purse for those services.

The other ground on which the minister suggests this amendment should not be supported is that there has been insufficient consultation about it. True it is that the government consulted with SACOSS in relation to the proposal originally put forward by the Young Lawyers Committee of the Law Society, but it did not consult widely in relation to the food donation bill. It is based upon some expectation that there will be greater donations from those who have food supplies. The fact is that those who have food supplies are, in the main, retailers and wholesalers of food and they are substantial donors already through Foodbank in South Australia. This legislation does not even cover Foodbank, because Foodbank's scheme of distribution is one in which, whilst the ultimate recipient may not make any payment, the charitable organisation that actually is the intermediary between Foodbank and the ultimate consumer does make a payment to Foodbank. I do not believe that there was, in fact, widespread consultation with those who are likely to give food.

The minister gives the example that a restaurant, for example, may be prepared to give away food that is no longer suitable for their particular purposes. Obviously, the protection is that the food still has to comply and be safe within the meaning of the Food Act, and that is an objective standard with which we agree. But we have certainly heard no evidence presented to the Legislative Council that the restaurateurs are saying, 'We are not giving away our food because we fear liability; and if there is a change to that we will actually go to the trouble of donating our food.' The consultation seems to have been with SACOSS and the consultation seems to have been on the issue of social justice.

The minister began his remarks by saying this would lower the standard of care to the most vulnerable groups in our community. The most vulnerable people in our community are those who are the recipients of food donations. There is no-one in a worse position than those who need charitable donations of food to enable them to live. We have already agreed that the standard of care towards those people will, in relation to the food they are supplied with, be lowered. That is at a most basic and elemental level. We now seek by this provision to enable other charitably-minded people to make available goods and services.

Those goods would ordinarily be household goods—the sort of things that one regularly sees. Of course, many of those are actually sold through Goodwill stores and other organisations where there is some payment made for them, so they would not specifically be covered by this bill, and nor should they be. If Vinnies, the Salvation Army or Goodwill stores charge people for goods and services, well, then the people are not second-class citizens. They have paid for the goods and they are entitled to all the protections to which any purchaser of goods is entitled.

Let me get to the more practical element here. The government says that it will consult next year and ask people in the community whether this would be a good idea. We think that prima facie it is a good idea at present. We are happy to have it included in the legislation. If the government is truly concerned about it, it need not proclaim the operation of this section to come into operation until it has had an inquiry and it is satisfied. Practical experience indicates that with amendments of this kind, unless they are inserted at the time there is an opportunity to insert them—as the council now does—they will not be introduced; we will not ever see protection of this kind.

That is why I have moved the amendment in the form in which it is. It is a stand-alone amendment. It need not be brought into operation immediately. The government can have its consultation and then bring it into operation. If the government considers that, as a result of that consultation it is inappropriate, no doubt it will report to members and we will be happy to ensure that it is not brought into operation and that it is removed from the legislation.

The Hon. P. HOLLOWAY: The honourable member cited the case of lawyers, and I think we have to concede he is probably correct in that particular case. Of course, the issue of where hospitals would stand is somewhat more complex. However, in the case of mechanics and electricians, those arguments would not apply. If a mechanic for no fee services a vehicle or a car used by a charity, why should he not have to take the same care as he does for his paying customers? That is a genuine issue. There are some professions to which it may not apply because of the way in which the honourable member has worded the amendment—and I concede it is probably the case with lawyers—but for others, such as mechanics, I would suggest that the amendment would apply.

The honourable member raised the issue about consultation in relation to this matter. First, in relation to food liability the government has consulted SACOSS, Foodbank, and Restaurant and Catering SA; in other words, the key stakeholders—those who might provide the food and those who might be the principal recipients of it. In addition, I am advised that almost every other state of Australia—Victoria since 2002 and, also, Western Australia, New South Wales and the ACT—has similar legislation in relation to food donation. However, I am advised that none of them has gone further into other types of goods and services.

One could argue about the level of consultation we had in relation to food—there has been some—but at least we have experience (in the case of Victoria up to six years) on which to rely. We do not have any experience at all in terms of extending this legislation to cover services or other areas. If we are to be the first state to do it, surely we would need to put more thought and more detailed research into it before we go down that track because, as I indicated in my earlier comments, some genuine issues would arise if we were to go down that track.

The honourable member has said that the government should accept the amendment, that it should go in the bill but that we should not proclaim it. The government would say that the idea of putting something into the legislation and not proclaiming it—although it would come into effect automatically at some future date and it would mean that we would have to introduce an amendment to remove it—is very bad legislative practice. Why would we put legislation on the statute books which we would need to consider further and which may be suspect. Why would we do that? I suggest that is very bad practice.

Sometimes when we introduce bills we do have different dates for proclamation because some parts of complex legislation may depend on certain things happening, but there is always—or there should be, I would argue—the intention that eventually we will proclaim that legislation in its whole. We do not think the argument by the Hon. Robert Lawson washes. Let us do the work. If we are to be the first state in the country that does extend this, let us make sure that we properly examine it before we put it into law. Let us not say that potentially this is a good idea and that we will put it into law, then work out whether it is good or bad law before we proclaim it. I suggest that is not the best way in which this parliament should proceed.

The Hon. D.G.E. HOOD: I will not move my amendment today. I was quite keen to have the amendment carried, but, as a result of discussions with both the government and the Hon. Mr Lawson, I have decided not to move that amendment. However, in relation to the amendment that the Hon. Mr Lawson has moved, Family First is still persuaded that the amendment has merit and that it will not obstruct the passage of the bill. The government's bill specifically deals with issues surrounding food and its donation, whereas the amendment moved by the Hon. Mr Lawson—which is a hybrid amendment between his and my proposed amendment, although possibly closer to his original amendment—would not need to be proclaimed, as the Hon. Mr Lawson has mentioned. Therefore, the bill could operate unaffected.

Family First is persuaded that this amendment could become part of the bill. It would give the government time to investigate the full implications of it and proclaim it at the appropriate time—within the time frame that the government has mentioned. It is our intention to support the amendment.

The Hon. P. HOLLOWAY: It should be understood by everyone that if this amendment is passed it will come into effect automatically within two years. There will be an election in 2010, in two years. So, by the end of 2010, this will come into effect. The government has set out a time frame within which it believes we can properly examine this matter. I have mentioned that we would issue a discussion paper on it which would be published by June, and we would have a report by the end of October 2009 setting out conclusions.

Obviously, we will try to work within that sort of time frame, and then you have to consider legislation. If this comes in automatically in two years, who is to say what will happen in the interim? If these sorts of things are just lying on the statute book, they can very easily get caught up in the parliamentary timetable. All of us know how difficult it is to try to get legislation through the parliament within a particular time frame because of the backlog. I think it would be very bad practice indeed to propose legislation that will come into effect within two years without having done the necessary work to know whether or not it is desirable legislation.

Again, I make the point that all of us appreciate the motive behind the amendments. I think all of us would agree that, where people give of their services for charitable purposes, we do not want that unnecessarily caught up in legal challenge. However, there are some important conflicting legal principles here that do need significant thought.

That has happened in relation to food donation, and we have six years' interstate experience on which to judge that. However, in relation to other goods and services, we do not have that experience. We should get that information before we put into the statute book such significant legislation that could have quite perverse effects.

No-one wants to see a situation where someone who genuinely donates their goods or services is caught up in the legal system; but, at the same time, there are these important principles involving some level of protection for the recipients as well. We are looking at things like insurance of service givers and so on. There are some significants issues that really need to be thought through and understood before we go into this area. It really is an area where the path to hell might be paved with good intentions.

The Hon. M. PARNELL: In my second reading contribution, I said that I would be supporting either the Liberal or the Family First amendments, unless I had some indication that the government was going to honour the spirit of those amendments, which is to have a close look at what are the barriers to philanthropy in this state.

The words the minister has given to us today and the commitment he has made on behalf of the government to produce a discussion paper and to have an inquiry does satisfy me, and I will not be supporting the Liberal amendment. I am very concerned about what the barriers to philanthropy are, and much of the debate has been around whether these barriers are speculative or based on evidence. It seems to me that, if you take a very strict view of evidence and you pose the question 'Who has ever been sued for a donation of unsafe food?' the answer is probably no-one. However, I think there is evidence from interstate that the lack of legal protection has been a barrier to people donating food. If people say it is a barrier, it is a barrier, whether or not it has manifested itself in the court lists.

It seems to me that food can be separated from the goods and services, where I think there is much more speculation involved. I know, for example, that the Hon. Iain Evans in another place has talked about the impact on service clubs and their insurance premiums. I have not seen one jot of evidence that one service club's insurance premiums would drop by one cent by the passage of this sort of legislation. However, if we were to find out that information, I would be much more inclined to support it. The way we find that out is by having a public inquiry, and we can pose those questions directly to the insurance industry.

The service clubs do terrific work in our society. I have spent many, many hours down at my local Lions Club helping in their second-hand shed, where goods are donated and they are then onsold at very low prices to members of the public. That situation might not be caught by the honourable member's amendment because the ultimate consumer does pay for it. However, if they were on-donated, perhaps they would be caught.

The honourable member's amendment does still have some problems in it from a strictly legal perspective. For example, it seeks to exempt from the protection of this bill someone who may be drunk. The words are:

If the ability of the person who personally provided the goods or services was, at the relevant time, significantly impaired by a drug (including alcohol) consumed voluntarily for non-medicinal purposes.

I can understand the drunk electrician not being able to take advantage of some protective measure, but the state of intoxication of the person who donated the toaster at the time of donation I would have thought was irrelevant. Their state of mind in relation to the safety of the toaster, which may have been formed while they were completely sober, is a far more relevant consideration. The honourable member might say, 'Well, that's picked up by using the words 'at the relevant time', but 'at the relevant time' is not defined. So, I just give that as an example to say that, however well intentioned these amendments are, I think there are legal consequences that have not necessarily been thought out.

The other point I would make in relation to the Liberal amendment is the suggestion that we can pass it now and see later whether it is needed. I am always open to advice from longstanding members. The Hon. Robert Lawson warns, I guess, that, if we do not pass it now, we will not ever see it—that, once this matter is off the Notice Paper today, whatever the inquiry is, we have lost our opportunity to get legal amendment. My position is that I have a reasonable memory, and I do prescribe to that theory that every dog is entitled to one free bite.

I have never before taken the approach of not supporting amendments because the government has promised an inquiry. It has promised one here, and I will watch that it delivers on that promise; if it does not, if it fudges on it and takes our votes here for granted, I have five or so years to harbour that in the back of my mind. If I am ever put in the position again where I am offered the choice of passing a government bill unamended or having a more thorough inquiry, I will think twice about supporting the government.

However, for now, I have not been disappointed in these circumstances before, so I am entitled to take the government at its word that we will have an inquiry. If it turns out that legal liability is a genuine barrier to people in South Australia donating goods and services or providing premises, let us deal with that in a legislative way. As I said, at this stage, I am not prepared to accept this amendment on the basis that we should pass it now and see later whether it is needed.

I urge all honourable members to accept the government's offer. Let us get the food donation principles through now and, within 12 months, we will have the government's response to whether there are other legal barriers to philanthropy we should deal with through legislation.

The Hon. R.D. LAWSON: I am sorry to hear that the honourable member will not be supporting our amendments. I think that a number of the points he made about the proposed amendments do not bear much scrutiny. For example, he objected to the inclusion of an exclusion for those who make a donation but were impaired at the relevant time by a drug, including alcohol, consumed voluntarily for non-medicinal purposes.

This terminology was in our earlier amendment, and I think it was also included in the Hon. Mr Hood's amendment. We think it is perfectly reasonable that a person is not entitled to the benefit of this exemption if, at the time they changed the pensioner's light or fuse, they were—

The Hon. M. Parnell interjecting:

The Hon. R.D. LAWSON: No; this is in the case of services. If they were inebriated at the time, they should not be entitled to claim that they ought not be held responsible for what they have done.

The minister suggested that dodgy mechanics and electricians may gain the benefit of this provision. I argue that, if an electrician fixes a fuse or a mechanic seeks to change the brake linings for the pensioner next door, in circumstances where the work is unsafely performed that would be a case of services provided where the person knew or was recklessly indifferent because a higher standard ought to be expected from a mechanic, who has a greater state of knowledge.

If the elderly pensioner next door, who is a retired mechanic or an amateur mechanic, says to the lady next door, 'I'll help you with your car,' if he does the best he can and believes that it is correct, if he is not recklessly indifferent and not drunk at the time he performs the service, he ought not be subjected to legal action.

The Hon. Mr Parnell says that he is not aware of any evidence to suggest that there is any increase, decrease or change in professional indemnity policies and the like for service clubs. The fact is that, if you have legislation of this kind, there is actually no need for a service club that engages in this activity to have insurance. It is not a question of increasing its premium. Presumably, if its risk is decreased, its premium will decrease.

Many very small organisations and individuals consider that it is not appropriate or cannot afford to have insurance. Because they cannot afford it, they say, 'I won't do anything.' If they do not have to have insurance, it is more likely that in the ordinary course they will donate their goods and services.

The Hon. A. BRESSINGTON: On the comments just made by the Hon. Rob Lawson about organisations not needing to have insurance if this amendment were to go through, I am a little curious as to how it would work. I come from a non-government organisation background and, if you do not have public liability insurance, and something happens to any consumer of your service, it means that the board members of the organisation need to accept personal liability for anything that happens to those consumers. That is my understanding, and I am seeking clarification on that.

If they do not have the appropriate insurance in place to operate and meet the objectives of the organisation, I understand that the responsibility automatically falls back onto each individual member of the board. There is specific insurance you take out to prevent that from happening. So, if they cannot afford public liability insurance, I imagine that they cannot afford professional indemnity assurance either.

Does this mean that, if this amendment went through, it would be acceptable for board members to take personal liability for any harm that might come to a consumer of products or services offered by that organisation? Does this amendment also mean that an organisation such as DrugBeat—which under its service agreements is required to have public liability insurance, and which uses FoodBank for some of its clients who are on very low incomes—can do away with its public liability insurance?

I think this particular amendment blurs the lines a great deal regarding what is and what is not required of organisations in order to be adequately insured against anything that could happen to their staff, their boards of management, or the consumers of the goods and services offered, and I seek clarification from the minister whether that would be the case. If he is not an insurance expert he could take that matter on notice.

The Hon. P. HOLLOWAY: It is really the Hon. Robert Lawson's amendment, but I think he was suggesting that because this act gives some measure of immunity you therefore do not need to take out insurance. I make the point that it has to be litigated before one knows what the law actually means anyway, so why would you take the risk? If you were a board member, would it be prudent to let go your insurance on the chance that you may be protected under this legislation? As well as considering the needs of the board members, what about the needs of someone who may be a genuine victim? Under the legislation they would potentially have no recourse. That is the other side of the coin.

I think the honourable member just makes the point that there are some important issues bound up in this. With food it is relatively simple and we have had experience elsewhere in dealing with it, but in other areas of services there are some complexities that need thinking through. The principle is simple: that people who give services in a genuine way should not be held liable for it, but translating it and allowing that simple principle to deal with all the legal cases becomes a much more complicated exercise. That is why we need to do that work.

The Hon. R.D. LAWSON: Perhaps I should respond to the honourable member's question about insurance. I would not want any of my remarks to suggest that any charitable organisation ought do away with insurance because, in relation to food, the government's proposal will provide that they incur no civil liability; or, in the case of our amendment, that in relation to goods and services they will incur no civil liability. As the minister correctly says, one does not necessarily know whether one qualifies.

However, in the ordinary expectation of things, the premiums charged by insurers to charitable organisations should be reduced in consequence of the amendments, both the government's and our own. Obviously, if insurance premiums are reduced it makes it easier for charitable organisations to carry on their functions without having to pay excessive premiums. The point I was really making relates both to the government's proposal as well as to our own.

The committee divided on the amendment:

AYES (10)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Hood, D.G.E. Lawson, R.D. (teller) Lensink, J.M.A.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.
Wade, S.G.
NOES (9)
Bressington, A. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hunter, I.K.
Kanck, S.M. Parnell, M. Zollo, C.
PAIRS (2)
Lucas, R.I. Wortley, R.P.

Majority of 1 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.D. LAWSON: I move:

Page 2, line 13 [inserted heading to Division 11A]—

Delete the heading and substitute:

Division 11A—Charitable donations

This amendment is consequential upon the previous amendment and debate.

The Hon. P. HOLLOWAY: Obviously, we are disappointed this will go in because, basically, it ends the bill, but we will not waste any further time on it.

Amendment carried.

The Hon. R.D. LAWSON: I move:

Page 3, after line 10—

After inserted section 74A insert:

74B—Provision of other goods and services for charitable or benevolent purpose

(1) 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—

(a) without expectation of payment or other consideration; and

(b) for a charitable or benevolent purpose; and

(c) with the intention that the consumer of the goods or services would not have to pay for them.

(2) The immunity extends to the agents and employees of the person providing the goods or services.

(3) However, the immunity does not operate in the following cases:

(a) in the case of goods—if the person knew or was recklessly indifferent to the fact that when the goods left the possession or control of the person they were in a state likely to cause harm to a consumer of the goods or to the property of a consumer of the goods;

(b) in the case of services—if the person knew or was recklessly indifferent to the fact that the services were provided in a manner likely to cause harm to a consumer of the services or to the property of a consumer of the services;

(c) in respect of a liability that falls within the ambit of a scheme of compulsory third-party motor vehicle insurance;

(d) if the ability of the person who personally provided the goods or services was, at the relevant time, significantly impaired by a drug (including alcohol) consumed voluntarily for non-medicinal purposes.

(4) The Minister must, as soon as practicable after the second anniversary of the commencement of this section—

(a) cause a report to be prepared on the operation of this section; and

(b) cause a copy of the report to be laid before each House of Parliament.

(5) This section does not apply to the donation or distribution of food (see section 74A).

(6) In this section—

goods means substances or articles.

This amendment is consequential upon previous amendments and the debate we have just had.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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