The following frequently asked questions may help volunteers and organisations that involve volunteers to understand the intent of the legislation.
The Volunteering Secretariat is not able to provide advice regarding individual cases. Volunteers and organisations that may have attracted litigation should seek advice from a member of the legal profession. Neither is the Secretariat able to provide advice regarding insurance. Organisations are encouraged to discuss their insurance needs with an insurance provider.
The intent of the Volunteers (Protection from Liability) Act 2002 is to protect certain volunteers from liability and transfer that liability to community organisations, as defined.
The Act provides protection for volunteers who work for a community organisation, defined to mean a body corporate, local government authority or State agency.
Under the Act a volunteer does not incur civil liability for anything that the volunteer has done in good faith when doing community work. This means that volunteers cannot be sued for something they did or failed to do, if they are acting within the scope of the work and directions given to them by the community organisation.
Liability arising out of the acts or decisions of these volunteers will be transferred to the community organisation that organises the voluntary work done by the volunteer.
The legislation does not protect volunteers who may undertake voluntary work for an organisation that is not incorporated, informal or individual volunteers who are not linked to an incorporated organisation, or volunteers who work for a Australian Government agency.
^top
Liability arising out of the acts or decisions of volunteers who have acted in good faith and within the scope of the community work organised by the community organisation will be transferred to the organisation that has organised the voluntary work done by the volunteer.
The Act will also preserve existing protection from liability that a community organisation may already have, arising for example, from contractual arrangements with a third party.
It is the responsibility of organisations to ensure that they have adequate insurance cover to protect their assets.
^top
Under the provisions of the Act, a volunteer cannot be obliged to indemnify a community organisation against a liability incurred by that organisation in consequence of any conduct of the volunteer.
Any agreement, undertaking or arrangement entered into by a volunteer that aims to exempt the community organisation from any suits that may arise from the individual's participation as a volunteer with the organisation will have no effect.
^top
If more than one community organisation is involved in organising community work then the community organisation, or organisations, that principally organise that work will be liable for the actions of the volunteers undertaking the work.
^top
Incorporation creates a legal entity that is separate from the individual members. The Associations Incorporation Act 1987 protects an individual member from being sued for the action of another member of the association. The Act does not protect a member of an association from being sued for their own actions.
Under the Associations Incorporation Act 1987 an office bearer or a member is not liable in respect of the liabilities of another individual member, office bearer or the association by reason of being an office bearer or member. However, office bearers and members are not protected from liability for their own negligence or wrongful acts committed by them.
Any association is eligible to be incorporated if it has more than five members and is formed for any of the purposes listed in the Associations Incorporation Act 1987. These purposes are reflected in Clause 3.1 of the Volunteers (Protection from Liability) Act 2002.
Members and committee or board members of unincorporated bodies can be sued as individuals.
^top
The Volunteers (Protection from Liability) Act 2002 refers to voluntary work organised by a community organisation as "community work". For the purposes of the Act, community work is largely consistent with the purposes for which associations may be incorporated under the Associations Incorporation Act 1987.
These include religious, educational, charitable or benevolent; for promoting or encouraging literature, science or the arts; for sport, recreation or amusement; for conserving or protecting the environment; caring and assisting people with physical or mental disability or condition; promoting or preserving historical or cultural heritage; for establishing, carrying on, or improving a community, social or culture centre; promoting the interests of a local community; or political purpose.
The definition of a volunteer for the purpose of the Act means a person who does community work on a voluntary basis if they receive no remuneration other than what they may receive whether or not they did the voluntary work or for reasonable expenses they may incur undertaking the community work.
^top
It will be important for community organisations that involve volunteers to ensure that the volunteers understand the nature and limitations of the work they are to undertake for the community organisation.
Volunteers will not be protected by the Act if they knew or ought to have known that they were acting outside the scope of the community work organised by the community organisation or contrary to instructions.
The Act refers to community work which is organised by the community organisation. This means that volunteers who may be directed by the community organisation to undertake a particular type of voluntary community work, should not undertake other voluntary duties without liaising with the community organisation to gain further direction.
Community organisations should develop sound supervisory practices when they involve volunteers in their work to limit any misunderstandings about the extent and limitations of their work.
^top
Various categories of people are excluded from the definition of volunteer - such as those who perform emergency services functions (as defined by the Fire and Emergency Services Authority of Western Australia Act 1998, honorary fisheries officers within the meaning of the Fish Resources Management Act 1994, or honorary wildlife officers, honorary forest officers, honorary rangers or honorary conservation and land management officers within the meaning of the Conservation and Land Management Act 1984).
This is to ensure there is no confusion about which provisions and therefore which protection applies.
^top
The Volunteers (Protection from Liability) Act 2002 is designed to protect certain volunteers from personal liability that may arise as a result of their voluntary contribution to the community.
Liability arising out of the acts or decisions of these volunteers will be transferred to the community organisation that organises the voluntary work done by the volunteer.
This means that not only is the volunteer protected but an injured or aggrieved person can still seek compensation.
^top
The Volunteers (Protection from Liability) Act 2002 will protect volunteers who work on a voluntary basis for a community organisation (defined as a State Government department, agency or instrumentality, an incorporated association, a local government authority or other corporate body) from incurring civil liability. Such liability is transferred to the community organisation. This means that not only is the volunteer protected but the injured party can still seek compensation.
The legislation does not attempt to protect all volunteers as it seeks to maintain the rights of injured parties to seek legal compensation while at the same time, protecting volunteers who undertake community work for a community organisation.
^top
The Act requires for a volunteer to act in good faith.
If a person commits a crime they cannot be said to be acting in good faith.
Therefore if a person commits a crime there is no transfer of liability to the community organisation.
^top