Volunteers and the Law

Riverland Community Legal Service Inc

Overview

1. Liability of volunteers

2. Obligations relating to privacy

Liability of volunteers - issues

Negligence Personal injury Property damage Economic loss

Volunteers Protection Act 2001

Preamble goals: To recognise “major contribution” of

volunteers to South Australian community To “foster and encourage” volunteering in

the community To recognise disincentives to volunteering

arising from the risk of “serious personal liability for damages” and costs arising from litigation

Volunteers Protection Act 2001

Preamble goals (cont): To achieve a “reasonable and expedient

balance” between protection of volunteers and interests of those who suffer injury

Volunteers Protection Act 2001

General effect: Volunteers protected from liability Liability attaches to organisation

Volunteers Protection Act 2001

Who is a volunteer? A person who carries out “community

work” on a “voluntary basis”

Volunteers Protection Act 2001

“Community work” means work; for a religious, educational, charitable or benevolent

purpose; for promoting or encouraging literature, science or the

arts; for looking after, or providing medical treatment or

attention for, people who need care because of a physical or mental disability or condition;

for sport, recreation or amusement; for conserving resources or protecting the natural

environment from harm; for preserving historical or cultural heritage; for a political purpose; for protecting or promoting the common interests of the

community generally or a particular section of the community

Volunteers Protection Act 2001

Community work must be done for a “community organisation”, meaning an organisation that; Is incorporated; and Co-ordinates the carrying out of community

work by volunteers

Volunteers Protection Act 2001

“Voluntary basis” is limited to work done without pay or other reward, except; Where a person is only reimbursed for their

expenses; or Where a person receives a monetary gift

as a recognition of their work (cannot be a regular payment or entitlement)

Excludes work done under court order

Volunteers Protection Act 2001

Conduct is only covered if it is done; In good faith; and Without recklessness

Volunteers Protection Act 2001

Other exceptions Liability that can be covered by compulsory

third-party motor vehicle insurance Liability for defamation Where volunteer is significantly impaired

by use of recreational drug

Volunteers Protection Act 2001

Other exceptions (cont) Where volunteer acts outside scope of

activities authorised by the organisation Where volunteer is acting contrary to

instructions of organisation In both of above cases the volunteer

must know (or ought to have known) that they are acting in such a way

In summary

Liability incurred by a volunteer; for work that is done in good faith and

without recklessness; and is of a nature that is not otherwise

excluded

will instead be incurred by the organisation

Privacy Act 1988

Introduces National Privacy Principles Binding on most private sector

organisations (including community organisations)

Binding on employees and volunteers of those organisations

National Privacy Principles

Principles govern: Collection of personal information Use and disclosure of personal information Accuracy and maintenance of personal

information collected

National Privacy Principles

What is personal information? Privacy Act 1988: “information or an

opinion … whether true or not, … about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

National Privacy Principles

Collection of personal information: Must not collect personal information

unless that information is necessary for the organisation’s functions or activities

Must collect information only by lawful and fair means and not in an unreasonably intrusive way

National Privacy Principles

Collection of personal information (cont): Must make person aware of policies

relating to personal information and who it may be disclosed to

Must (if reasonable to do so) only collect personal information about an individual from that person

National Privacy Principles

Use and disclosure of personal information: Must not (without consent) use personal

information for a purpose other than what it was collected for

National Privacy Principles

Use and disclosure (cont): May disclose information if necessary to

prevent serious and imminent threat to a person’s life, health or safety; or

A serious threat to public health or safety

National Privacy Principles

Use and disclosure (cont): May disclose information in the process of

reporting unlawful activity or cooperating with the investigation of an offence

National Privacy Principles

Data security: Organisation must take reasonable steps

to protect personal information from misuse, loss and unauthorised disclosure

National Privacy Principles

Access and correction: Must generally make information about a

person available to that person (but many exceptions apply)

National Privacy Principles

Sensitive information: Generally must only collect sensitive

information by consent or when required to by law

National Privacy Principles

What is sensitive information? Includes information about a person’s race,

political opinion, political association, religious/philosophical beliefs, sexual orientation, criminal record, etc

National Privacy Principles

Breaches: Investigation by Privacy Commissioner

(even where no damage caused) Determination that may include:

Declaration that breach has occurred Declaration relating to compensation/redress

If declaration ignored matter may proceed to Federal Court

National Privacy Principles

Consequences of breach Organisation incurs expenses in complying

with investigation May have to pay compensation Breaches of NPP are made public Internal disciplinary action also possible