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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-10-13 Daily Xml
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Bills

Civil Liability (BYO Containers) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 September 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:00): I rise to speak on this bill today and indicate the opposition's support. This bill continues a proud legacy of our former colleague in this place the Hon. Mark Parnell. Whilst he has left this place, his presence is still warmly felt by many of us with a number of the issues he championed and with Robert Simms progressing this bill.

Mark—and I am not sure if he is still the 'Hon. Mark Parnell'; probably not is my guess, but Mr Parnell—introduced a similar bill about BYO containers, to avoid waste, in 2018. The parliament was prorogued before the bill was voted on. Thankfully, the Hon. Robert Simms has now introduced this similar bill to amend the Civil Liability Act to provide limited immunity for food vendors when customers use their own containers.

The immunity only applies to personal injuries caused by the use of the container and does not limit the liability of consumers to seek remedies for injuries arising from the food itself, which I think is a very important distinction to make clear. The bill also sets out further limits on the immunity from liability, that is:

knowledge or reckless indifference on the part of the vendor that the food would be unsafe if consumed from a particular container;

negligence in the use of the container;

unlawful use of a container; and

the provision of food that was subject to recall at the time of the sale.

Importantly, the bill does not create an obligation to fill a BYO container and venders may exercise their judgement as to whether they do or not. No similar legislation currently exists in Australia so this would continue a proud tradition in South Australia of Australian firsts, although charities like Food Bank have some immunity from the Civil Liability Act arising from consumption of food they give away.

The sale of food in South Australia is governed by the Food Act 2001 with the associated Food Regulations 2017 that legally adopt the provisions of the Australia New Zealand Food Standards Code. This ensures a consistent approach to labelling laws in food sold around Australia. The current legislation allows for food to be sold in a BYO container although the practice is not widespread due, I suspect, to a combination of both liability concerns and practicality issues.

Some small independent retailers such as butchers and confectionery outlets currently accept BYO containers, and various private web pages list the locations of BYO-friendly stores. I am informed bigger retailers like Pasadena and Frewville Foodland stores have a self-managed reusable container system where containers purchased from the stores can be reused.

Other retailers, like Coles and Woolworths, have raised potential barriers in their view to BYO containers. These have included food safety concerns and the difficulty in investigating adverse outcomes, if they arise. This bill will help address some of these concerns from some of those bigger retailers. If a retailer chooses not to participate, even with this legislation in place, then consumers will have a greater choice to use retailers that would allow that and they can exercise their choice accordingly.

We have seen important legislation on single-use plastics and this bill builds on that work. Importantly, this bill is about choice. Both retailers and consumers can choose whether they participate in a scheme that is aimed to be more prevalent for BYO container use under this bill.

I also note that various retailers who may or may not avail themselves of the BYO container arrangements are moving to use more environmentally friendly containers than they have in the past. I applaud businesses and consumers who are bringing their values with them in making sure that we reduce the cost and liability on the environment, and I think every piece of waste that we avoid is something that is to be commended and will help generations to come. We will be supporting this bill, as I said at the outset.

The Hon. T.A. FRANKS (17:04): I rise today to briefly add my support for this very sensible bill. As my colleague the Hon. Robert Simms has noted, this bill is an extremely simple amendment to the Civil Liability Act that aligns with the general population's desire to cut back on single-use plastics and, indeed, the Marshall government's desire to phase out single-use plastics, which the Greens have happily supported, regardless of our political colours.

By now I believe we are all aware of the dangers of plastic not only to humans but to all other forms of life and our environment as well. Studies have shown that toxic chemicals leach out of the plastic into our food and water and then into us. Exposure to these chemicals has been linked to cancer, birth defects, impaired immunity, endocrine disruption and many other health issues.

Plastic poses a threat to wildlife who mistake it as food and eat it. Birds that have slowly starved to death have been found with stomachs full of plastic that they cannot digest which leaves little to no room for actual food they need to survive. It litters the sides of our roads, our parks, our beaches, our oceans. It is everywhere, literally everywhere. Microplastics have been found in the placenta of parents after giving birth, and we consume approximately a credit card's worth of plastic each week. We have plastic inside us right now.

There is a clear rationale for reducing plastic use. The why is quite simple; the how is where things of course become a little more nuanced. Currently, many businesses are reluctant to allow BYO containers due to the potential liability should the consumer become ill. This bill places the responsibility on the consumer to ensure the container is clean and suitable for the purpose for which it will be used, with the general exception where the person selling the food did so knowing the food was not fit for human consumption.

This is a simple change that could allow consumers and businesses to reduce their plastic use significantly and help us move towards a more sustainable future where we can still enjoy the food or the drink we love but without the harmful plastics. With that, I commend the bill to the house, and I hope this is an instance where commonsense prevails.

The Hon. R.I. LUCAS (Treasurer) (17:07): I am pleased to be able to speak on behalf of the government and indicate we will be supporting the Civil Liability (BYO Containers) Amendment Bill 2021. The bill amends the Civil Liability Act to provide food sellers with immunity from civil liability from the use of reusable containers brought in by the customer. South Australia is leading the way in the movement towards reducing single-use plastic, and the aims of this bill align with the Marshall Liberal government's initiative to phase out single-use plastic.

On 1 March 2021, South Australia became the first state in Australia to ban plastic drinking straws, stirrers and cutlery from sale, supply and distribution. From March 2022, the ban will be extended to polystyrene cups, bowls, plates and clamshell containers. This bill is a sensible next step in promoting reusable and recyclable options, as consideration continues in relation to banning more items as market demand increases and other sustainable alternatives become available.

The bill will encourage sellers to allow customers to bring in their own containers and alleviate concerns about their liability for consequences that are beyond their control—for example, where the customer does not properly sterilise the container or store the food in a safe manner once it leaves the store. The bill includes proper safeguards to ensure that sellers are not immune from liability for unlawful or negligent conduct.

The government will be moving three minor amendments to the bill to assist it to operate as intended, and I thank the honourable member for working with the government on these amendments.

The Hon. R.A. SIMMS (17:08): I want to thank all members for their contributions and for their support of this bill. In particular, I want to acknowledge the fact that whilst this is a very simple reform it does traverse a few different portfolio areas, and I have greatly appreciated the support of the Attorney and her office; the Minister for Health, Stephen Wade MLC; and the Minister for Environment, David Speirs. I also want to acknowledge Dr Susan Close in the other place, the shadow environment spokesperson, with whom I have worked and, of course, the Hon. Frank Pangallo, in this chamber as well.

As has been stated, this is a legacy bill in many ways. My predecessor Mark Parnell first proposed a very similar reform back in 2018, and there was no opportunity to advance it before the election. When I took over from Mark I picked up this issue and looked at it again.

I am really pleased to see it has such strong support in the parliament. It is something that will be welcomed not only by consumers but also by businesses that want to do the right thing in terms of encouraging customers to bring their own containers and reduce waste. They will now have protection in doing so and a clear framework in terms of legal protections that will work for them. With that, I commend the bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 2, lines 19 to 22 [clause 3, inserted section 74B(3)(a)]—Delete paragraph (a)

This amendment deletes exception (a) as it overlaps with the provisions in the Food Act 2001. It is unnecessary and likely to cause issues upon its application by the court.

The Hon. R.A. SIMMS: I rise in support of the amendment. Again, I want to thank the government for working constructively with the Greens on this. I had the opportunity to discuss these amendments with the Attorney-General, the Hon. Vickie Chapman, and she spoke to me about the intention of the amendments.

The changes being proposed by the government are minor and are in the spirit of the reforms; indeed, I think they better achieve the objectives. The Greens will be supporting the amendment the government is putting forward. I do not propose to speak to each of them; I indicate our support for the suite the government is moving.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 2, line 23 [clause 3, inserted section 74B(3)(b)]—After ‘container’ insert:

by the person selling the food

This amendment makes it clear that the immunity will not apply if the use of the container by the person selling the food was negligent.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–1]—

Page 3, lines 3 and 4 [clause 3, inserted section 74B(4)]—Delete ‘, recall order, unsafe and unsuitable all’ and substitute ‘and recall order’

This amendment is technical so that the definitions of 'food' and 'recall order' carry the same meaning as those in the Food Act 2001.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.A. SIMMS (17:14): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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