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Thursday, 12 December 2002
Page: 7983


Senator LUDWIG (8:36 PM) —I move Australian Labor Party amendment (1) on sheet 2777:

(1) Schedule 1, item 1, page 3 (after line 24), after subsection (1), insert:

(1A) For the purposes of paragraph (1)(d) the regulations must prescribe the form and contents of the exclusion, restriction or modification which must include, but which is not limited to, a requirement that the consumer sign each exclusion, restriction or modification.

(1B) Any exclusion, restriction or modification which includes a false or misleading statement is void.

(1C) Any exclusion, restriction or modification is void if the corporation has acted recklessly in relation to a death or personal injury.

I will be as brief as I can be, but I think the amendment does need a bit of explanation. When we looked at the press release from the Minister for Revenue and Assistant Treasurer, Senator Coonan, in relation to the Trade Practices Amendment (Liability for Recreational Services) Bill 2002 and examined the issues involved, we found some discrepancies between what was announced in the press release and what the bill actually provided for. Labor decided to examine the press release and try to provide amendments that were modelled more on the direction in which the minister said she was going rather than on the bill as it was finally drafted.

Proposed subsection (1A) deals with the provision for a person to waive their rights, rather than have the waiver attached to a form that a person might not see or that might be in small writing, which might concern people. I am sure the minister would recall, as I do, the cases about car park notices that used to be put up in some of the old car parks. Some notices were small and very difficult to read, and there was a case about whether or not that would exclude the owner of the vehicle from liability for illegally parking their vehicle.

The minister would recall, I am sure, the famous judge who dealt with those cases. I think that is a very good analogy. What those cases taught us is that we should put the notice on the back of the car parking ticket so that people can read it. In other words, we should bring the notice closer to the attention of the person who is going to assume the responsibility, rather than put it on billboards or in obscure places. In this instance we are saying that people should acknowledge the risk. If this bill is going to take away a substantive right that people have, they should at least have it brought to their attention in such a way that a court can be confident that they have acknowledged it, and in effect proposed subsection (1A) does that.

Proposed subsection (1B) does not allow false or misleading statements in waivers or in other forms of communication. So, if the waiver is void, proposed subsection (1B) provides that `any exclusion, restriction or modification which includes a false or misleading statement is void'. So we want to ensure that the waiver has some rigour attached to it, that it purports to do what it says it will do and that there are no wild, false or misleading claims contained in the waiver, because to do so would make it void under our proposal.

Proposed subsection (1C) provides that `any exclusion, restriction or modification is void if the corporation has acted recklessly in relation to a death or personal injury'. This ensures that the bill at least goes the distance to which it should go. In terms of the Ipp report, this bill goes further than Justice Ipp's recommendations. The concern is that the waiver should only provide for the inherent risks that might be associated with a sporting activity, for example, or whatever the waiver is seeking to encapsulate.

As the bill stands, we are concerned that it allows a person to waive negligence. I think that has probably gone a little further than what the minister originally intended and what the press release seemed to say. Perhaps we can deal with this in a couple of ways, but they are the major concerns that Labor has sought to address by this amendment.

Just to recap briefly—and the minister may be able to provide additional information that may assist—a problem that we have identified is how does a person understand or know where the content for an exclusion is. In proposed subsection (1A) we are saying that the exclusion should be brought to the consumer's attention and one of the ways we suggest this can occur is by the consumer signing the exclusion, which is a good form of acknowledgment. In proposed subsection (1B) we are ensuring that the waiver has some integrity and that a person does not make any outlandish claims. If that is not right, Minister, perhaps you can put us right. But there does not seem to be any provision in the legislation that ensures there is some rigour attached to the waiver itself. In proposed subsection (1C), we are ensuring that the waiver is void as a consequence of negligence.