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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-12-02 Daily Xml
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CIVIL LIABILITY (FOOD DONORS AND DISTRIBUTORS) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly’s message.

The Hon. P. HOLLOWAY: I move:

That the Legislative Council do not insist on its amendments.

The government opposes these amendments. They would reduce the current legal protection of the most vulnerable people in our society without any evidence that this would 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 would gain a large increase in donations of goods and services. At this stage, that is a mere hypothesis.

These amendments seek to protect anyone who provides goods or services to another person without expecting payment for a charitable purpose as long as the person intends that the consumer should not have to pay for the goods or services. The purported protection would extend to property damage as well as 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 or services should be liable only for reckless indifference not for negligence.

The government's bill was introduced after carefully weighing the risk and the benefits and after considerable work to satisfy SACOSS about its merits. What determined us to do this is that we have reason to think that quantities of safe food are being wasted in South Australia because potential donors fear legal liability. There is no proof or even any indication that the same situation applies to goods and services. Why? 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 a substantial increase in the donation of safe food occurred there because of similar laws. We believe that, on balance, it is worth adjusting the standard of care in this field because, since most owners 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 would 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 result of the bill with great interest. The government would be most concerned, however, at the attachment of a lower standard of care towards the poor right across the board without at least some public consultation. For example, what about the private school that accepts both fee-paying students and also a small number of scholarship students for whom fees are waived? At present, the school owes a duty to take reasonable care for the safety of all its students. Why should it not have to take the same care for the scholarship students as for those who pay? Or, consider the mechanic who, for no fee, services a vehicle used by a charity: why should he not have to take just the same care as he takes 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 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.

Unlike food, 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. The shelf life of imperishable goods is indefinite, and if a trader has ordered in 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 the terms of trade. It is not a question of either giving them away or throwing them out, as it is with food.

Where then is the evidence that donations of goods and services will increase so substantially that it is worth lowering the standard of care? How do we know that fear of legal liability 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. It would be the height of irresponsibility to charge headlong into this without a comprehensive investigation. I ask the committee to 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. For example, the private school's insurance almost certainly covers the fee-paying students and the scholarship students equally. In that case, all that this amendment does is to shift the loss caused by the service provider's negligence from an insurer—who has taken a premium to assume that risk—to the charity or the poor person receiving the service. 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 the 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 whatsoever. 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? Will they be satisfied that these amendments were passed untested because they simply seemed like a good idea at the time? There ought to be wide consultation before these amendments go any further. The government has, between the houses, invited SACOSS to comment on the opposition's amendments in their earlier form. It is understood that the opposition also has approached SACOSS. SACOSS tells us that it will not consider supporting the amendments until more investigation is carried out. The SACOSS preferred position (as recently as last night) was that the food element of the bill should be passed now and that a further exploration and investigation should take place to test the merits or otherwise of the proposed amendments.

As introduced, the bill deals only with the 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 enacted 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 parliament did not see fit to pass this bill in its present form.

We know from Foodbank Australia that the time to increase food donations is right now. The global financial crisis has already hit those in need in South Australia. Foodbank Australia also tells us that nationally the July to September quarter is the first quarter on record that it has experienced a reduction in donations. By comparison, for the past four years it has enjoyed 23 per cent compound growth year on year. Never before has Foodbank seen such a close and immediate link between economic and social circumstances. Restaurant and Catering SA tells us (as recently as last night) that it expects an immediate increase in the quantity of food made available for donation as soon as the legislation is proclaimed.

Other states have adopted food donor legislation similar to that which we are proposing. Victoria did so in 2002 and, since then, New South Wales, Western Australia, Tasmania and the ACT have all passed similar laws. Food donations have increased in those states and those in most need have benefited. No other state has even thought to put forward the untested proposals being suggested here. That is not to say that the government will 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 not now 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 comments 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. As we come to Christmas I ask members present to think long and hard before they reject a bill that will bring benefit to the most needy and vulnerable in our community.

The Hon. R.D. LAWSON: I believe the chamber should insist upon its amendments. The solution offered by the initiator of this proposal, the Hon. Iain Evans in another place, was that the additional section be inserted for the purpose of including goods and services other than food. The solution offered by him was also that the government would have the opportunity, as it does have, of proclaiming the food section to come into operation immediately and, if it had serious concerns about those other issues, the goods and services section need not be brought into operation immediately.

The minister and the government have reached to the bottom of the barrel for the arguments they use to seek to have the Legislative Council's amendment defeated. They suggest, for example, that if this amendment remains there will be people in South Australia who will not receive food this year, because people are being held back from these donations because of the fact that there is some possibility of legal liability. The government talks about the fact that in other places the amount of food donation allegedly increased after this legislation was introduced: actually, the amount of food donation everywhere in Australia has been increasing over the years, and not as a result of the introduction of legislation of this kind.

I have studied the Hansard reports of other states, and the only example of additional food being donated in consequence of legislation such as this was from a restaurateur who was prepared to donate an additional 60 litres of milk a week in certain circumstances. So the suggestion that this legislation is holding back a vast, pent-up quantity of food and philanthropic intentions is simply not sustained.

The real reason the government has hesitated here is that when the bill was introduced it was at the suggestion of the Law Society. Who did the government go to? It went to SACOSS, because it believed that on a social justice level it might be suggested that this bill would enable poorer citizens in our community to be given substandard food. The government regarded that as a social justice issue so it went to SACOSS, who are purported to be the conscience of the poor in relation to this. As the Attorney-General said in another place, when SACOSS gave the all-clear the government was prepared, after two years, to introduce the legislation—not because it had been out inquiring from Foodbank or amongst possible food donors, but because it got the go ahead from SACOSS. Last week in another place the Attorney-General said:

The government has between the houses invited SACOSS to comment on the opposition amendments in their earlier form, but SACOSS has declined to do so. SACOSS tells us that more investigation by its staff would be required before it could form an opinion.

So SACOSS has simply refused to comment on this. That is fair enough—it is entitled to do that—but SACOSS is not the only interest that is involved.

In scraping the bottom of the barrel, the minister talks about insurance levels. It is undoubtedly true that most businesses that will be the donors of food already have public liability insurance—that is a given for businesses. They are still going to be liable even under this legislation if it might be deemed that they were reckless in giving food. So they do still need to maintain their insurance cover, and that will not be removed. That being the fact, insurance is not an issue here because donors will continue to maintain their insurance.

The simple fact is that the so-called 'donor fears' expressed by the restaurant and caterers association only last night indicates the sort of desperation of the government. It is looking around for people to say that if the Legislative Council amendments are sustained we will be responsible for the drying up of charitable donations. I simply do not accept the government's rhetoric on that point. We believe that the amendments are good and that there is a sensible solution; and there will be an investigation next year and, if we do not pass them now, they will not be passed at all. For those reasons, the Legislative Council should adhere to the position it has adopted.

The Hon. D.G.E. HOOD: Family First, of course, was one of the groups that originally put up amendments to this bill, so I guess we showed our hand very early on in this debate—that is, we were inclined to amend the bill to expand it to include services as well as food, and not just food but also other goods. So, it encompasses a larger range of goods and services on the whole. The Hon. Mr Lawson and I discussed the matter in some detail, and the two amendments (that is, the Family First amendment and the Liberal amendment) merged into one amendment, and that is the amendment before us today that we are discussing at the moment.

The situation from the perspective of Family First is that essentially we are in agreement with the Liberal position and see no reason why the bill cannot be passed as amended today. The appropriate parts of the bill could then be proclaimed and the amendment not proclaimed so it is not part of the legislation now but it is there should the time be right down the track to have it proclaimed and included in the legislation. In accepting the position that the bill should be amended, as I say, largely, we accept the Liberal arguments. However, the government's argument is, essentially, that to do so is to run the risk of people going hungry over Christmas because not passing the bill may result in less food being distributed because of the fear of litigation that some organisations may have. That is a very substantial risk, indeed, and I am sure no-one in this chamber—certainly not Family First—would want to see anyone have one less morsel of food this Christmas because a bill did not pass this place.

For that reason—I must say, somewhat reluctantly—we have changed our position on this bill and now support the bill's passage without amendment; that is, we will not insist on the amendments, which was our previous position. The government has given the commitment that it will publish a discussion paper by the end of June next year, and we will certainly be eagerly looking forward to that.

The government has said that that discussion paper will examine the possibility of the bill being expanded in line with the amendments that are being discussed today with respect to providing similar protection for other goods and services and, indeed, for using premises for charitable organisations and not being subject to liability claims. It has also said that it will produce a report that will outline its recommendations and intentions by October next year. Again, Family First certainly will be eagerly looking forward to that.

I say quite sincerely that we want these amendments passed. Whether it be now or next year, in essence, does not matter a lot, but we want to see them passed. We are taking the government at its word that it will undertake a decent review of this matter and will do something about it in October next year; and we look forward to that.

I have had consultations with a number of groups, including church groups, that do a lot of charitable work in South Australia; and I am sure members would acknowledge that. I have had personal conversations with a number of them in relation to this bill. They all want it passed as quickly as possible, and they have expressed their concern to me that if it does not pass there may be a risk of some of those charitable groups not getting access to the foodstuffs that the bill promises. For that reason—and I must say somewhat reluctantly—we support the bill in an unamended form.

Motion carried.

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