Legislative Council Wednesday 18 September 2019

Ms FORREST (MurchisonNext Hit) - Mr President, I will support the bill.  Sometimes even the content in the second reading speech is not enough to clarify the intent when it is testing the courts.  It is important we do our best to have it right in legislation to ensure the intention is reflected in the legislation.

As the second reading speech the Deputy Leader delivered made pretty clear, in 2017 a decision of the NSW Court of Appeal potentially could impact on our legislation, even reflecting on the original intent of the legislation.  We know a number of sports engaged in professionally are very dangerous.

AFL football is one.  We saw a young woman die playing AFL football last year, an absolutely tragic outcome.  We saw cricketer Phillip Hughes die as a result of an injury.  In many cases, we see pretty horrific injuries on the footy field most weeks.  Clearly people engaged in football as their profession should not be excluded and should be able to make their claims.

It is interesting to contemplate - maybe the Deputy Leader can address this.  I do not imagine, for example, that someone who was getting a small payment for playing community footy but was otherwise unemployed, and this was a source of income for them, would be covered because that is not a professional occasion as such.

Mr Valentine - It is not a professional wage.

Ms FORREST - Yes, so I am seeking some clarification.  I would not have thought it would have done, but sometimes our recreational activities are not necessarily considered sport, but can still be quite dangerous.  People may refer to them as sport like kayaking professionally.  Olympic athletes participate in a range of sports.

It is important this is corrected so the original intent is maintained.  As the second reading speech said, in Justice Woods' view the extension exemption to professional sportspeople arguably means employees engaged in sport as an occupation, including such as conducting a kayaking tour.  They are leading the tour.  I assume most people who conduct tours participate, but maybe they watch from the bank - I do not know - if they are engaging in that activity through leading a tour group.  That is what this is talking about.  Teaching others a sport may also be included in seeking damages for negligence.  Her Honour went on to say there is no indication parliament intended such sweeping change to the common law entitlements of many Australians.

I would like further clarification around the application on that basis.  It is important to ensure the original intent is evident in legislation.  Public liability insurance has been a very difficult journey since the collapse of HIH, with many of our little sporting clubs and other organisations struggling to get insurance for a period.  It became very expensive and quite prohibitive for some of them.  If we do not address this matter, it will be tested in some way and someone may find that the benefit of protection they thought was there is not there. 

I support the legislation and would appreciate the Deputy Leader responding to those couple of questions.