An Australian Hold Harmless Agreement is a document by which one party (the Releasing Party) agrees to release, discharge, and hold harmless another party (the Released Party) from specified claims, liabilities, and losses arising from a particular activity, event, or set of circumstances. The document combines the legal function of a release (extinguishing the Releasing Party's right to sue the Released Party) with the commercial function of a hold harmless undertaking (requiring the Releasing Party to protect the Released Party from third-party claims arising from the same subject matter).

Under Australian law, the enforceability of a hold harmless agreement is governed by the common law of contract and is subject to significant statutory limitations. The most important of these are the Australian Consumer Law (ACL), which forms Schedule 2 to the Competition and Consumer Act 2010 (Cth), and the Civil Liability Acts of the individual states and territories — such as the Civil Liability Act 2002 (NSW), the Wrongs Act 1958 (Vic), the Civil Liability Act 2003 (Qld), and their equivalents in other states.

Under section 64 of the ACL, any contractual term (including a hold harmless clause) that purports to exclude or restrict liability for a failure to comply with a consumer guarantee is void. This means that a Released Party cannot, through a hold harmless agreement, exclude liability for personal injury caused by a failure to supply a service that is fit for purpose or of acceptable quality. However, section 64A of the ACL permits the limitation (but not exclusion) of liability for services acquired for business purposes, and section 139A of the Competition and Consumer Act 2010 (Cth) permits suppliers of recreational services to issue a risk warning that limits ACL liability for personal injury.

Despite these limitations, a well-drafted hold harmless agreement provides the Released Party with meaningful protection against claims that fall outside the ACL and Civil Liability Act restrictions — including claims for ordinary (not gross) negligence, property damage, and economic loss.

A Hold Harmless Agreement is appropriate whenever the Released Party wishes to obtain a signed, written acknowledgment from the Releasing Party that the Releasing Party accepts certain risks associated with an activity and agrees not to hold the Released Party responsible for losses arising from those risks.

For recreational activities in Australia — such as adventure sports, fitness activities, water sports, and similar pursuits — a hold harmless agreement is standard practice. It signals to participants the nature of the risks involved, provides the organiser with a contractual basis for resisting claims, and (in conjunction with a proper risk warning under section 139A of the Competition and Consumer Act 2010 (Cth)) may limit the organiser's liability under the ACL consumer guarantees for personal injury.

For commercial activities — such as contractor access arrangements, property access licences, event vendor agreements, and short-term commercial engagements — a hold harmless agreement provides the property owner or principal with protection against claims arising from the contractor's or vendor's use of the property or facilities.

For employment-related activities — such as employee participation in out-of-hours sporting events, social activities, or team-building exercises — a hold harmless agreement may be used to clarify the basis on which employees or volunteers participate and to limit the employer's liability for injuries sustained outside the scope of ordinary employment.

A hold harmless agreement should be used alongside (not instead of) appropriate insurance coverage. While the agreement provides a contractual right to resist claims, insurance provides the practical financial protection against the risk that a claim is brought despite the agreement — for example, because the agreement is held unenforceable, because the injury was caused by gross negligence, or because the Releasing Party is a minor.

A well-drafted Australian Hold Harmless Agreement should include the following key elements.

The description of the activity or circumstances is the foundation of the hold harmless. It should be specific enough to clearly identify what risks the Releasing Party is accepting, while being broad enough to capture all aspects of the activity — including preparatory and follow-up activities, transportation to and from the venue, the use of equipment, and the actions of third parties.

The acknowledgment of risks clause should describe the specific inherent risks of the activity that the Releasing Party is accepting. Australian courts consider whether the Releasing Party had a genuine opportunity to understand and consider the risks they were accepting — a vague acknowledgment that 'the activity involves risks' is less effective than a specific description of the relevant hazards.

The hold harmless and release clause should clearly state that the Releasing Party is releasing the Released Party from specified claims and agreeing to hold the Released Party harmless against those claims. The clause must use sufficiently clear language to extend to claims arising from the Released Party's own (ordinary) negligence, and must expressly carve out gross negligence and intentional misconduct, which cannot be released under Australian law.

The ACL compliance note is critical. The agreement must acknowledge that nothing in it excludes, restricts, or modifies any consumer guarantee that cannot be excluded under the Australian Consumer Law. Without this savings provision, the entire agreement may be void if it purports to exclude ACL rights that cannot be excluded.

The insurance acknowledgment advises the Releasing Party to obtain their own personal accident or travel insurance, and confirms that the Released Party's public liability insurance does not necessarily cover all losses the Releasing Party may suffer.

The consideration clause specifies what benefit the Releasing Party is receiving in exchange for signing the agreement. Without consideration, the agreement is not binding as a simple contract — unless it is executed as a deed. Common forms of consideration include access to an activity, a discount on admission fees, or the supply of goods or services.

The governing law and severability clauses ensure that the agreement is interpreted consistently and that any invalid provision does not invalidate the rest of the document.