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Thursday, 12 December 2002
Page: 7994

Senator LUDWIG (9:39 PM) —I thank the Minister for Revenue and Assistant Treasurer for that. It is helpful in the sense that it then becomes a belt and braces approach, as I understand it. But you are trying then to deny the alternative—that is, the contractual path, so to speak, for plaintiffs to pursue. As a consequence, it really comes back to what Senator Murray argued, both for persons under the age of 18 and intellectually disabled people. It becomes very difficult in contract then to be able to establish whether or not they have the requisite capacity to be able to sue in contract or breach of contract. It becomes very difficult to then determine whether a waiver would be effective or not in terms of a person with a partial intellectual disability as against a person with a severe intellectual disability. That is partly the concern, of course, in terms of what age their comprehension would have to be at for them to accept liability from a notice on a board.

The difficulty we find ourselves in, then, is whether or not the bill would ensure that it did not happen—that is, that the courts would not start overturning this. If that were the case, then you would open up the Pandora's box of liability down these paths. The way that Senator Murray has framed it at least provides a lot more certainty. The concern I have with your argument is that there is a grey area. At least Senator Murray makes the grey area a little bit finer. Although it may not go as far as you would like the legislation to go, it does make it a little clearer. They are all the comments I wish to make.