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Thursday, 12 December 2002
Page: 7996

Senator COONAN (Minister for Revenue and Assistant Treasurer) (9:46 PM) —I do appreciate, Senator Murray, that you have talked about the need to perhaps proscribe a little your amendment. You are quite right to refer to recent High Court authority which has taken a more restrictive view of the rights of public authorities. However, we think that this amendment would establish unreasonably onerous conditions applicable to certain activities. This is because at present many contractual terms are printed on tickets or drawn to the attention of participants in activities by prominent signage. Sometimes there are translations. For example, if an activity such as skiing were to be prescribed as an inherently risky activity and a ski resort wished to rely on a waiver, every single person buying a lift ticket would need to sign that waiver—I made that point a little earlier—and that would then need to be retained. I do concede that what you are trying to do here is very well intentioned, but our view is that the provision is impractical. It would impose very onerous compliance burdens on business.

There is an additional comment that I would like to make, and that is that you would really only be using the Trade Practices Act if it provided a more generous course of action than tort. I do urge senators looking at this bill to keep that in mind. We are only looking at this as an alternative and more profitable route to litigation. You would only use it if in fact you could do better than you would from suing in tort. So people's rights under the common law rule of negligence would be retained.

I want to refer to Senator Conroy's earlier comments about the Victorian position for a moment, because the issue comes up here again. If a state law requires a waiver to be in a prescribed form then the people in that state would need to provide a waiver in that form or they could still be sued in tort in that jurisdiction, even though they may be protected for a breach of a statutory warranty under contract law. The point here is that the Trade Practices Act would not undermine the Victorian requirement to follow a prescribed form. For those reasons, specifically in response to Senator Murray's comments, we are not attracted to this amendment—although I do acknowledge the thoughtfulness behind it.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.