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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
TRADE PRACTICES AMENDMENT
(LIABILITY FOR
RECREATIONAL SERVICES) BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Revenue and
Assistant Treasurer,
Senator the Hon Helen Coonan)
Table of Contents
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1. The object of the Trade Practices Act 1974 ('the TPA') is to enhance the welfare of all Australians through the promotion of competition and fair trading and provision for consumer protection (section 2 of the Act).
2. The contractual rights which consumers have by virtue of the TPA were not enacted with any specific intention that they might be used to provide remedies where consumers died or were injured as a result of a breach of a condition or warranty implied by the Act. The purpose of this Bill is to ensure that the object of the TPA is not subverted for an improper purpose.
3. Section 68 of the TPA does not allow providers of goods and services to contract out of statutory warranties established by the TPA, such as that under section 74 to provide services with ‘due care and skill’.
4. The amendment contained in this Bill will permit self assumption of risk by individuals who choose to participate in inherently risky activities, and will allow them to waive their right under the TPA to sue the business providing the activity, should they suffer personal injury as a consequence of the service provider’s failure to supply the services with due care and skill.
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There is no financial impact to the Commonwealth as a result of these measures.
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1. This clause provides the short title by which the Act may be cited.
2. This clause provides that the Act does not commence until the Bill receives Royal Assent.
3. This clause makes it clear that the Acts specified in the Schedule are amended or repealed as set out in the Schedule, and that the Schedule may also contain other provisions.
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1. Item 1 inserts a new section 68B, which permits suppliers of ‘recreational services’, as defined in subsection (2), to limit their liability for death or personal injury arising from the supply of those services.
2. Paragraphs (d) and (e) qualify the circumstances in which liability may be limited by the supplier.
3. Under paragraph (d), any limitation of liability can only be in respect of death or personal injury.
4. Paragraph (e) ensures that section 68B has no retrospective effect and does not remove any existing rights that a consumer may wish to assert.
5. Subsection (2) defines a number of terms used in section 68B.
6. ‘Personal injury’ is given an expansive meaning to encompass most conceivable forms of injury to an individual, other than property damage. The broad scope of the definition of this term is to ensure that any exclusion clause drafted in reliance on section 68B can be sufficiently wide to provide suppliers of recreational services with the protection intended.
7. ‘Recreational services’ has also been defined widely to cover the broad range of physical activities in which the community participates and which might result in the death of or personal injury to a participant.
8. Subsection (3) serves to ensure that consumers’ rights to redress for injuries under provisions of the Act unrelated to section 74 will not be affected by section 68B