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Thursday, 12 December 2002
Page: 7989

Senator COONAN (Minister for Revenue and Assistant Treasurer) (9:07 PM) —I want to make a brief comment in response to Senator Ludwig, because he did raise an important point about minors—and no doubt that also includes people with disabilities. The provisions of the act being dealt with by the Trade Practices Amendment (Liability for Recreational Services) Bill 2002 concern the rights of consumers to sue for breach of a term implied in contracts that the services will be supplied with due care and skill. I think it is important to note that, as any legal proceedings are based on a cause of action for breach of contract, the ordinary protection afforded to minors—and indeed to intellectually disabled persons—in relation to their capacity to contract will apply. What we are really looking at here with this bill is the extent to which it can make a significant contribution to reducing the extent to which the Trade Practices Act might undermine reforms in other states, not just in New South Wales.

The amendments that have been put forward show a fundamental lack of appreciation of what section 74 of the Trade Practices Act actually does. An action for a breach of warranty under section 74 would be taken under the law of contract, so we are really dealing with the law of contract. The contractual rights that consumers have by virtue of the Trade Practices Act were not enacted with any specific intention. If you go back to what it was all about and what was said at the time, you will find that contractual rights may be used to provide remedies where consumers died or were injured as a result of a breach of a condition or a warranty implied by the act. The purpose of this bill is to ensure that the object of the act is not subverted for an improper purpose.

I will turn to Senator Murray's comments, which I listened to very carefully. I am not for one moment suggesting that governments of any colour or complexion should be attempting to ride roughshod over the rights of the Senate to properly consider legislation that comes before it, and indeed to consider that legislation on its merits. In making my general remarks and setting the context for the way the government is considering this bill, I had intended to convey to honourable senators the need to strike a balance between the interests of consumers and those of business in these matters. In those circumstances, it is appropriate to decide whether the balance is correct and whether the merits provide in the way that I have described.

The government is not disposed to support the amendments, but I did think it appropriate to respond specifically to the matters raised in relation to minors, which is an important matter, and in relation to Senator Murray's view that it is not a rubber stamp or an executive prerogative that requires the Senate to pass this legislation. I am asking that honourable senators consider the very important broader public purpose for which this legislation is brought forward, the extent to which it does not cut down any rights that would not otherwise be dealt with in contract and, in those circumstances, the importance of having complementarity in legislative regimes between the Commonwealth and the states.