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Thursday, 12 December 2002
Page: 7987

Senator LUDWIG (8:56 PM) —It is helpful that the minister explained some of the reasons for not agreeing to our amendment. Perhaps she can turn her mind to the unresolved issues. For argument's sake, would a notice be sufficient for people who are under 18? There are also people, as the minister may be aware, who for a variety of reasons are challenged in their ability to read and who might assume risks that they are not aware of. If a signature to a document were required, it would at least provide some certainty. A guardian could sign for minors.

We recognise that there are practical difficulties, but for many activities these days there are documents and computer generated tickets. Skiing is one sport where, when you buy tickets, the ticket sellers do know who you are. When I buy those tickets, I generally use a Visa card to pay. That is an aside— but there is usually a face to face method of obtaining tickets where waivers could be signed. It is the same for theme parks and the like. When you enter the theme park, there is usually a place where you have to purchase your tickets. At those points, most of the theme parks—nearly all of the ones I have been to with my children—sell computer generated tickets and could certainly manage getting a customer's signature or having a guardian sign on behalf of a junior so that the content of a waiver would be brought to their attention.

The point is that if the waiver is not brought to their attention in some manner— and obtaining a signature is one way—then we think the courts would find a whole raft of grounds for saying that the waiver was not brought to the person's attention or was otherwise not known. As a consequence, the waiver could be avoided and the whole import of the legislation undermined in a serious way. We would then come back here with more amendments to try to overcome that. Our present amendment would at least go further and would bring sufficient certainty for the insurance industry to recognise that waivers may be upheld. As a consequence, premiums should follow a downward trend. The minister also commented on our use of the term `acted recklessly' and suggests `gross negligence'. Whether or not we are really arguing from the same basis using different words, we think that `acted recklessly' encapsulates what the Trade Practices Amendment (Liability for Recreational Services) Bill 2002 is trying to achieve and `gross negligence' goes needlessly further than the bill requires.