New claims
A series of claims about the AAS are made by the ORC that seem intended to dodge the concerns AV's members and many others have raised. A recent email to some members of the former Snow working party said:
"There is some discussion regarding the suitability of the AAS for commercial and non commercial organisations."
The implication is that the matter has been discussed openly and dealt with appropriately. This is not so. AV formed primarily because of the refusal of the ORC and the Department of Sport and Recreation to consider this very question. More recently this has included a refusal to include that question on the agenda at the "open" AAS forum last February, and a refusal to supply us with publicly funded documents that address the ORC’s reasons for including non-commercials.
The email continued:
"The issue of determining duty of care owed to participants is the domain of the courts."
It is more important to know that the AAS will influence that determination. The ORC has claimed this often and we believe them. So should you. Further, we have copies of two letters from the Minister of Sport stating that the AAS are intended to re-define the duty of care.
Every AAS commences with the claim that it provides "Protection for providers against legal liability claims and criminal penalties" ... which the AAS can only do by influencing how the courts determine duty of care.
The email went on:
"The purpose of the AAS is to communicate standard procedures for conducting safe activities regardless of the fee structure used by the organisation."
This is a red herring. It is the existence of a fee structure at all that marks the divide between commercial and non-commercial community groups. As Will Houghton QC confirmed in his advice to VicWalk, there is a difference in the duty of care owed by commercial providers and community groups. Any suggestion that a community group simply occupies a place at one end of a continuum of commercial fee structures is lip service. Its purpose is to smudge over the fundamental flaw in this one-size-fits-all approach.
Further, this bundling of stakeholders with patently different needs has been used to influence the Department of Sustainability and Environment to consider placing constraints on community access to public land. This is to include new "enforcement and compliance" requirements based on the AAS. (Click for AV Update 10 for background)
And finally:
"AAS are not developed for the general public."
That's surprising because the FAQ on the ORC website says that one of the purposes of the AAS is so that "All organisations and the general public conducting or looking to conduct activities have free access to common practices."
Undisclosed authorship
We don't know who is authoring the new AAS – Snow other than the ORC itself, as no identities have been revealed. But in an outrageous breach of professional etiquette, the draft AAS ‑ Snow lists organisations that used to be involved. That is, not for the first time, borrowing the names and reputations of organisations who do not wish to support an AAS, as if to imply their support. In fact we believe that some of the listed organisations never really were involved. We presume that this is a smokescreen and that few organisations are participating, if any.
Our interpretation
This draft AAS Snow (non resort) is now out for “public consultation”.
The ORC invites a response to three questions:
Debate about the AAS is thus drawn to these crumbs; points of detail from an equipment list. Putting up such “considerations” is to imply that only a few bits remain to be tweaked.
We believe the ORC's intention is to distract from the big issues about the purpose and likely effects of this and other AAS.