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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-04-30 Daily Xml
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STATUTES AMENDMENT AND REPEAL (FAIR TRADING) BILL

Committee Stage

Bill recommitted.

Clause 35.

The Hon. G.E. GAGO: I move:

Page 17, after line 8 [clause 35, inserted section 74I(2)]—After paragraph (e) insert:

and

(f) a statement containing any other information prescribed by regulation is made available to the consumer in accordance with the requirements prescribed by regulation.

This amendment has the same intent as the amendment I previously discussed in committee. It provides for a statement containing information prescribed by regulation to be made available to consumers via a waiver. The purpose of the amendment is to help consumers understand the law and their rights under the law.

As previously advised, the information provided will enable consumers to be informed about their legal rights under certain provisions. There can be little doubt that this bill deals with a complex and difficult area of law, and some consumers find it quite difficult to understand their rights in relation to those laws. As some members have said, consumers can only benefit from clear and accurate information. This amendment will help provide that information. Also, the information will be prescribed in regulation, so there will be further opportunity for parliament to scrutinise and have a say about that information to ensure that consumers are receiving clear information about their rights.

As previously stated, including this information as part of the waiver form itself means that everyone who signs a waiver will receive a copy of that information. This is to try to address the bluff factor—the turn of phrase the Hon. Ann Bressington coined in this chamber. The bluff factor is about our concern that, now the legislation is silent on the issue of waivers for children, we are concerned that insurance companies could pressure recreational service providers to routinely sign waivers, supposedly forfeiting the compensation entitlements of children.

We believe that understanding common law provisions and protections is important for people so that they do not inadvertently give up their rights and think they have given away their compensation entitlements when they may not have. This is an added protection to make clear to consumers what are their rights.

The Hon. A. BRESSINGTON: With this information that would be forwarded with the waiver, what would prevent insurance companies from developing a separate waiver for children? Is this information to be on the back of the waiver or is it a separate piece of information and, if it is on the back of the waiver, why would not insurance companies just develop yet another waiver specifically for children?

The Hon. G.E. GAGO: If, under regulation, it is determined that prescribed information will be included on the waiver—which is obviously what I am looking at—then any waiver form that does not contain that information in the prescribed way would not comply and would therefore be ineffective.

The Hon. A. BRESSINGTON: It is my understanding that a waiver for children is ineffective anyway, so how can an ineffective waiver be made more ineffective? Does the government intend to impose any kind of penalty if an insurance company should leave this information off a waiver?

The Hon. G.E. GAGO: The member is absolutely right; the advice we have received is that any waivers that are signed for children are ineffective because of common law provisions. However, as the honourable member knows, while they are ineffective under current legislation we know that some insurance companies do lean on recreational providers to pressure them to provide waivers as a condition of receiving insurance coverage at a particular cost. It is not an offence to do that so we cannot prevent it from happening, but we are concerned that, even though the form is ineffective, recreational services users may believe they have to sign it and may believe that in signing it they have forfeited their compensation rights.

We want to make it clear on the form that that is not necessarily so, in terms of their rights under common law. So it is to prevent people from being misled into believing that this might be an effective waiver and that they may have given up their compensation entitlements. The other part of the question related to whether there was an offence. There is not, and that is because of trying to protect people from inadvertently and unintentionally handing out these things.

The Hon. J.M.A. LENSINK: I am pleased that we are dealing with this clause this morning rather than Tuesday night. I think that was a fairly unsatisfactory process in many ways when dealing with a number of amendments, and I have to say that at times I was a little confused as to with which amendment we were dealing. We then had one dropped on us after dinner. I am pleased that that one has been withdrawn, and I will make a few comments about that in a moment.

This amendment is quite different from the one the government tabled on Tuesday night. If one looks at clause 74I(2), one can see that there are five conditions which relate to the details of a waiver. As I read it, this clause adds a further condition. This particular clause is not the breakthrough in consumer protection that the minister would have us believe, but I think that the substance of subclause (2) already provides a number of conditions in relation to waivers. The existing clause provides that consumers must be made aware and must have agreed. I think that is entirely appropriate, and it is a much better model than exists in New South Wales, for instance.

These five existing clauses, with the addition of the sixth, make subclause (2) fairly comprehensive, and provide certainty—and, indeed, provide some certainty to recreational services providers as to what the requirement will be. I believe that is to be lauded, and we will be supporting this amendment. This clause provides that the regulations may prescribe further conditions, and I think that is a fairly standard one that we see many times in legislation which, I think, provides for issues which may arise or which have been overlooked.

I would like to make some comments about the government's previous clause. I do not wish to pre-empt anything that my learned colleague the Hon. Robert Lawson may state, but when we looked at this yesterday (and, again, thank goodness we did not make a decision on this Tuesday night, because it is ill-thought through) it appeared that its effect would be to change three of the existing clauses from being laid out in statute to coming under the whim, if you like, of the Commissioner for Consumer Affairs. I think that would have provided less certainty to recreational services providers, and we would not have supported that amendment. With those comments, I indicate that the Liberal Party will support this clause.

The Hon. R.D. LAWSON: I support the comments made by the Hon. Michelle Lensink. This is clearly a far better provision than that which the government suggested in the amendment tabled but not moved earlier this week. The government originally proposed that the terms of the exclusion include any other information that the Commissioner for Consumer Affairs thinks fit, an entirely inappropriate model. What the government was proposing—but, as I indicated, wisely the minister did not move—was that these matters not be the subject of any parliamentary scrutiny at all.

Fortunately, the clause that we have now moved requires the statement to be prescribed by regulation and, thereby, there will be an opportunity for parliamentary scrutiny. I think that is an extremely important principle with legislation of this kind. As the deputy leader has indicated, I will be supporting this provision.

However, I must put on the record that I am deeply sceptical of provisions of this kind. In relation to contracts for the sale of land, the sale of a business or even the sale of a motor car, it is all very well to have rather complex contractual documents—they are well understood—but when people engage in a recreational service, they do not expect to be confronted with documents in fine print—pages of material—containing information prescribed by regulations. They are in no mood, frankly, to be reading material of this kind. I think that information of this nature, which we are now insisting that recreational service providers provide, is really creating a bureaucratic nightmare.

It might be said that recreational service providers do not have to worry about it, that they do not have to give consumers anything at all unless they want to obtain the benefit of this waiver—and I suppose that is a fair point—but I believe that the model being adopted here will not ultimately work in practice, how ever well intentioned the government is in proposing it.

The Hon. A. BRESSINGTON: I want to put on the record that I do not necessarily agree with the Hon. Robert Lawson that people would take more care to read a contract for the purchase of land or a car than with a contract that had to do with their children's safety. I think that really does not say a lot for his opinion of parents and how careful they want to be with their children. If I was handed a waiver to sign regarding my seven year old, if there was information on the back about my rights as a consumer to protect my child, I would make sure that I read it thoroughly and understood it. We also have the backup of consumers being able to go to the website to clarify further information on their rights to protect their children. So, I indicate that I will be supporting the minister's amendment. I also congratulate the government on taking care with this bill to make sure that consumers are fully aware of their rights as far as possible.

Amendment carried; clause as amended passed.

Bill reported with a further amendment.

Third Reading

Bill read a third time and passed.

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