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Legislative Assembly for the ACT: 2002 Week 10 Hansard (28 August) . . Page.. 2922 ..

MR SMYTH (continuing):

Mr Speaker, originally I had hoped to draft legislation that would enable the use of waivers in adventure activities but, having done the research, having done the work required to responsibly present legislation, I found that that was not within the ACT's powers. However, I did not give up. As I mentioned earlier, I looked to a jurisdiction that had worked out its own way round the problem and adapted it for use in the ACT.

This bill attacks the problem in a different way. This bill limits the ability of injured persons to sue approved operators of adventure activities. Do you get that, Mr Quinlan? There are no waivers in this bill, not one, not even a small one, not even a slush fund one; there are no waivers. Essentially, under this bill, an injured party would be able to sue an approved operator only if they suffered a serious injury, defined in the bill as:

(a) a serious long-term impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or

(d) the loss of a foetus.

The bill sets out how someone who is seriously injured may go about obtaining damages. It states how impairment is to be assessed and how to undertake actions for damages and it sets time limits on insurers to accept or reject claims.

You will note, Mr Speaker, that I have used the term "approved operator". This is another significant element of the bill. It sets out a regulatory regime, where none currently exists, for the regulation of operators of adventure activities in the ACT. This bill gives the minister the power to approve an adventure activity operator and it gives the minister the power to set out regulations for the approval. In the interests of justice, ministerial decisions in this area are appellable to the AAT.

Mr Speaker, this regulation will provide an invaluable opportunity to address issues of risk management in the adventure industry, as well as rid the ACT of fly-by-night operators. The schedule to the bill identifies adventure activities as abseiling; canoeing and kayaking; cattle drives and musters; fishing; four-wheel drive tours; hang-gliding; hiking or bushwalking; horse riding and horse trail riding; hot-air balloon flights; light aeroplane and ultralite aeroplane flights; mountain bike riding; rafting, including white-water rafting; rock climbing, whether indoors or outdoors and whether on a natural or man-made surface; snow skiing; snowboarding; cross-country skiing and snow play with toboggans, skibobs or inflatable devices; and trail bike riding. Mr Speaker, this definition, I believe, captures those businesses and groups in the ACT that are really feeling the pinch in terms of obtaining insurance cover.

In summary, this bill will force adventure activity operators to be approved by the minister, who in turn, by regulation, can ensure that appropriate risk management processes are in place. The bill limits the right to take action for damages to those who are severely injured or in the event of a death, events that will be reduced in frequency by the regulatory regime introduced.

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