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Thursday, 12 December 2002
Page: 7992


Senator MURRAY (9:26 PM) —I move amendment (3) on sheet 2776 revised:

(3) Schedule 1, item 1, page 4 (after line 18), at the end of section 68B, add:

(4) A term of a contract for the supply by a corporation of recreational services is void if it limits liability in relation to:

(a) persons under the age of 18 years; or

(b) intellectually disabled persons.

This is a particularly sensitive area for everybody concerned, because it is the issue of minors and disabled persons. Able-bodied, fully competent adults, of course, can make their own decisions about their lives perfectly well, but when it comes to minors or anyone who is disabled, you get a little sensitive about them being exposed to unnecessary risk in the activities they undertake. Of course, minors in particular are attracted to such daft behaviour as jumping off a very high place with a rope attached to their ankle. We have to be concerned about that sort of thing. In the vast majority of submissions made to the inquiry into the bill, comment was made about the applicability of waivers and disclaimers to minors and people with intellectual disabilities. While the common law position with respect to minors does provide protection—and I am sure it is a point that the minister would make—we see no reason why this position should not be enforced and codified within the legislation.

In New South Wales, the Civil Liability Amendment (Personal Responsibility) Act includes amendments relating to recreational activity. Under the provisions of that act, where the defendant is a provider of recreational services the defendant will not be subject to a duty of care to a person who is engaging in recreational activity if a risk warning has been provided to the plaintiff. However, the legislation also states that, if the plaintiff is an `incapable person', the defendant will only be able to rely on the risk warning in very limited circumstances. `Incapable person' in that legislation is defined as:

... a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning.

We often talk about plain English law. I think that is pretty plain English. We can understand that one. The New South Wales legislation clearly identifies minors as being a group who will continue to enjoy the full protection of the law of negligence in relation to the provision of recreational services. I think it would be wise to include some of the provisions in the present legislation. Submissions by the Australian Plaintiff Lawyers Association, the Consumer Law Centre of Victoria and the Australian Consumers Association all recommended that children should not be within the scope of this legislation. We think, therefore, this is an appropriate amendment to produce. We must appreciate the power imbalance that exists between consumers and service providers generally, and the added vulnerability of children and people with intellectual and physical disabilities. Waivers should be available only to those who fully understand the risk that they will be assuming. That is why waivers should only apply to competent adults, since children cannot fully comprehend the seriousness of accepting to waive their rights to sue.

Children are the most vulnerable members of the community, and their rights must be preserved and protected at all times. Since there are no added safeguards with respect to consumer safety outlined in this bill, we must not allow the rights of children to be diminished in any way. This therefore requires the legislation to be absolutely clear about the effects on the rights of children. We appreciate that the courts will of course have a view as to the applicability of contracts applied to children. We are concerned that we affirm the position with respect to children in the legislation and leave no doubt.