Review of the Carriers and Innkeepers Act 1958, May 1998

Chapter 1 – Overview

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INTRODUCTION

1.1 The Minister for Fair Trading, the Honourable Jan Wade MP, wrote to the Committee on 20 July 1994:

The Carriers and Innkeepers Act 1958 is archaic and I would be pleased for you to consider it for repeal and the making of recommendations as to whether any of its provisions should be retained.[1]

1.2 The Law Institute of Victoria also identified the Carriers and Innkeepers Act 1958 (Cwlth) ("the Act") as one which should either be repealed, or which required modification to remove archaic language.[2]

BACKGROUND TO LAW RELATING TO CARRIERS AND INNKEEPERS

1.3 Common carriers and innkeepers are both subject to unlimited liability at common law for loss of and damage[3] to the property that they are given to carry, or brought by guests to their inns. This strict liability was imposed as a matter of policy:

And this is a politick establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers [and innkeepers] might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves etc, and yet doing it in such a clandestine manner, as would not be possible to be discovered. And that is the reason that the law is founded upon that point.[4]

1.4 It was recognised, however, that strict liability could place an unfair burden on the innkeeper or carrier, especially in relation to valuable goods, where the value is unknown to the carrier or innkeeper.[5] Consequently, legislation was first introduced in Victoria in 1859 to impose a monetary cap on liability, subject to certain acts being done by the carrier or innkeeper (the display of notices indicating the limitation of liability, for example).[6]

1.5 Despite the passage of well over 100 years, the provisions in the current Act relating to carriers remain very similar to the 1859 Act. While the part of the current Act dealing with innkeepers was introduced as recently as 1970, the provisions still rely on many outdated or uncertain common law principles that are irrelevant or inappropriate for modern dealings.

1.6 Carriers today, most of whom are private carriers and therefore not subject to the Act, believe the provisions relating to carriers are outdated and should be repealed. However, innkeepers maintain that the part of the Act governing their liability is very relevant and wish to retain it. The context in which that part of the Act operates is important.

SIGNIFICANCE OF LAW RELATING TO INNKEEPERS

1.7 The possible impact of any repeal or amendment of the provisions of the Act relating to innkeepers on the tourism industry in Victoria is of particular concern to the Victorian Government. The Government is committed to maximising the long-term benefits of tourism by developing and marketing the State as a competitive tourist destination.[7]

1.8 Tourism plays a significant role in the Victorian economy. Victoria attracted a record 969,000 overseas visitors during 1995, a 26% share of all international arrivals into Australia. The international visitor market was worth $1.2 billion in direct expenditure to Victoria for 1995.[8] During the 1996/1997 financial year, domestic travel to Victoria grew by 4%, reaching 14.8 million trips for that year. This represented a 24% share of the interstate market.[9] In Victoria, as at March 1997, there were 1,012 hotels, motels and guesthouses providing 29,869 guest rooms.[10] Of course, additional accommodation is provided by hostels, hobby farms, boats, houseboats and on-site caravans.

DISCUSSION PAPER

1.9 Following the request of the Minister for Fair Trading to review the Act, the Committee prepared a Discussion Paper which was distributed in May 1995. The following issues were raised in the Discussion Paper:

• the relevance of the Act for modern commercial dealings between carriers and their customers;

• the relevance of the Act for modern dealings between innkeepers and their guests;

• whether insurance coverage is a necessary requirement in the conduct of modern dealings;

• the effect of a recent High Court decision[11] on the Victorian Act;

• whether any part of the existing Act needs to be retained.

1.10 The Discussion Paper also asked whether it was appropriate to adopt an international code of practice for application in Victoria.

SUBMISSIONS

1.11 The committee distributed copies of the Discussion Paper to over ninety organisations and individuals, and received written submissions from the following:

• Australian Hotels Association, dated 11 May 1995, 30 June 1995 and 28 February 1996;

• Blue Circle Taxi Trucks, dated 20 December 1994;

• DHL Worldwide Express, dated 27 July 1995;

• Insurance Council of Australia, dated 6 December 1995;

• The Law Institute of Victoria, dated 24 July 1995;

• Mayne Nickless Ltd, dated 24 May 1995;

• Minister for Fair Trading, the Hon. Jan Wade, MP, dated 19 July 1995;

• Minister for Industry and Employment, then the Hon. Phil Gude, MP, dated 17 May 1995;

• Minister for Small Business, Minister for Tourism, the Hon. Louise Asher, MP, dated 8 July 1997;

• Minister for Small Business, then the Hon. Vin Heffernan, MP, dated 5 June 1995;

• Office of the Parliamentary Counsel Victoria, dated 4 August 1995;

• Property Owners Association of Victoria, dated 30 June 1995;

• Royal Automobile Club of Australia Ltd, dated 24 May 1995;

• Victorian Employers’ Chamber of Commerce and Industry, dated 23 January 1995, 7 July 1995, 14 August 1995 and 24 October 1995; and

• The Victorian Bar, dated 17 June 1995.

1.12 A further sixty letters were received from innkeepers. However, the majority of these letters were in response to an article published in the Herald-Sun on 5 May 1995. The letters raised a number of concerns in relation to the possible repeal of the Act.

1.13 A discussion paper was sent to the Australian Consumers’ Association which replied that it would not be making a submission to the Committee on this matter.[12]

PUBLIC HEARING

1.14 The Committee also conducted a public hearing on 19 July 1995, at which it received evidence from the following people:

• Ms Julie Abramson, Legal Policy Worker with Victorian Employers’ Chamber of Commerce and Industry;

• Mr Tony Sheer, President of the Victorian Accommodation Association;

• Mr Anthony Hulett, General Counsel with Mayne Nickless Ltd;

• Mr Tony Mackintosh, Regional Manager of the Insurance Council of Australia;

• Mr Alan Giles, Chief Executive Officer, Ms Margaret Kearney, President, Mr Peter Gromotka, President Residential Division and Mr Nigel Roberts of the Australian Hotels Association.

Scrutiny of Acts and Regulations Committee
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