Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Western Australia.

Introduction and First Reading

Bill introduced, on motion by Ms McHale (Minister for Community Development, Women's Interests, Seniors and Youth), and read a first time.

Second Reading

MS McHALE (Thornlie - Minister for Community Development, Women's Interests, Seniors and Youth) [3.15 pm]: I move -

That the Bill be now read a second time.

According to the latest Australian Bureau of Statistics figures, Western Australia has 428 600 volunteers over the age of 18 years who volunteer in a formal setting for the benefit of the wider community. Volunteers donate time and effort of their own free will and without financial gain. The Government has a strong commitment to supporting volunteers, as demonstrated in its "Valuing Volunteers" policy and my appointment as the first Western Australian minister with responsibility for volunteering.
Volunteers have expressed concern about their exposure to litigation. With the increasingly litigious nature of today's society, there is a danger of deterring volunteers from donating their time, energy and skills to work within the community. The Government has responded to the growing concern among the volunteering community by developing new legislation that will provide many of our valued volunteers with qualified immunity from personal liability and transfer that liability to community organisations.

In February this year, the Premier announced the Government's intention to develop the Volunteers (Protection from Liability) Bill 2002, together with other measures, to address the increasing pressure on the Western Australian community that has resulted from the increasing cost of public liability insurance. The aim of the Volunteers (Protection from Liability) Bill 2002 is to provide volunteers with the comfort they so richly deserve. The legislation will ensure that many volunteers receive legal protection while undertaking the voluntary activities that enrich Western Australian community life. In developing this Bill, the South Australian Volunteer Protection Act 2001 was examined. The South Australian legislation was developed last year in response to community concerns. I understand that the South Australian Act has not been in operation long enough to ascertain its full impact on the community.

The precise number of volunteers who have been sued as a result of their voluntary activity is unknown. However, I have received a number of inquiries from members of the community who are concerned about the general issue of public liability and its impact on community life. The intent of this Bill is to protect certain volunteers from incurring civil liability when doing community work on a voluntary basis. The liability is transferred to incorporated community organisations that organise the work done by the volunteer. By transferring liability to the community organisation, a volunteer will be protected but the injured party will not be prevented from being able to seek redress. The Bill will not only protect volunteers from liability that results from doing a particular act, but also provide protection for the omission by a volunteer to do a particular thing that may result in damage or injury.

The Bill protects volunteers who work on a voluntary basis for a state agency or instrumentality or department of the public service, an incorporated association, a local government authority or other corporate body. Volunteers who work for a commonwealth agency will not be protected by the Bill because state legislation cannot bind a commonwealth agency. However, the commonwealth Minister for Revenue has announced that the Commonwealth Government will introduce legislation to protect volunteers from being sued by providing an indemnity from the organisation for which they work.

The Volunteers (Protection from Liability) Bill 2002 does not protect volunteers who may undertake voluntary work for an organisation that is not incorporated, nor does it protect informal or individual volunteers who are not linked to an organisation. An example would be a person who assists an elderly neighbour with weekly shopping or similar activity. It is not open to a Government, on the one hand, to protect volunteers who do not work for a community organisation as defined, without at the same time seriously limiting the ability of an injured person to seek damages. This is because the protection from liability given to one section of the community necessarily means that unless alternative entitlements to compensation exist, or are created, a victim's rights will be diminished, and that is not the intention of the legislation.
The Bill protects volunteers undertaking community work organised by a community organisation. As we all know, volunteers undertake a wide range of activities in the community. Work organised by a community organisation will be "community work" for the purposes of the Bill, if carried out for one of the various purposes specified in the Bill. These purposes are largely consistent with the purposes for which associations may be incorporated under the Associations Incorporation Act 1987, and include religious, educational, charitable or benevolent purposes; promoting or encouraging literature, science or the arts; sport, recreation or amusement; conserving or protecting the environment; establishing, carrying on, or improving a community, social or culture centre; promoting the interests of a local community; or a political purpose. The Bill allows for regulations to prescribe work that in the future may

included or excluded from the Bill. The ability to regulate will enable us to ensure that the Bill is not used in a way that is not intended.

For the purposes of the Bill, a volunteer means a person who does community work - as defined by the Bill - on a voluntary basis. The Bill provides protection for a person working on a voluntary basis if the person receives no remuneration for the work other than remuneration that person would receive whether or not they did that work. Many people in paid employment are also volunteers, and they will be protected by the legislation while undertaking a voluntary community activity. This will be the case even if they have been released from their employment to undertake the voluntary work and are still in receipt of a wage or salary for the time that they are undertaking that voluntary work. I emphasise this, as a number of employers are now becoming involved in community work and are encouraging their employees to participate in voluntary activity and allowing employees to have perhaps an hour a month or one day a year paid leave to participate. We want this to continue and do not want employers to be burdened with any liability that may arise as a result of this community support.

Volunteers will also continue to be protected by the legislation if they receive reimbursement of reasonable expenses they may incur undertaking the community work. The Bill allows for reimbursement levels to be prescribed by regulation. This aspect of the Bill recognises that, although in some cases remuneration such as an honorarium is appropriate, it is important that the level of remuneration be consistent with the ethos of volunteering. It is also important that this remuneration not be mistaken for a wage.

The definition of "volunteer" does not include persons 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. The existing provisions in these Acts do not operate in the same way as the protection from liability provision of the Volunteers (Protection from Liability) Bill 2002. These volunteers are excluded from the Bill to ensure that there is no confusion about which provisions and, therefore, which protection applies. There may be other legislation in the future that is designed to protect certain groups of volunteers, and the Bill enables these to also be excluded through regulation.

Individuals who are undertaking community work under an order imposed by a court will not be regarded as doing community work on a voluntary basis and will not be protected by the Bill.

It is intended that volunteers who act in good faith and in an authorised manner will not be personally liable to pay compensation to third parties to whom they may unintentionally cause harm or damage when they are doing community work. Liability arising out of the acts or decisions of the volunteer will be transferred to the community organisation that organises the voluntary work done by the volunteer. Volunteers will not be protected from damages arising from defamation or from death or injury to a person directly as a result of driving a motor vehicle if, at the time, a contract of insurance was in force or was required to be in force as per section 4 of the Motor Vehicle (Third Party Insurance) Act 1943. A volunteer doing community work that may involve driving an uninsured vehicle where third party insurance is not required - for example, on a farm - will be covered by the protection from liability provision of the Bill. A volunteer doing community work who injures a person while the volunteer is driving an uninsured vehicle on the road will not be covered by the protection of the Bill; that is, the protection provided by the Bill does not apply if the vehicle concerned is covered or is legally required to be covered by third party insurance.

The Bill will not protect volunteers 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. 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. The Bill 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.

Volunteers whose ability to undertake the community work in a proper manner because they are significantly impaired by alcohol or drugs taken for other than for therapeutic reasons will not be protected by the Bill.

Along with the protection it offers to volunteers, the Bill will also preserve some existing protection from liability that a community organisation may have, for example, arising from contractual arrangements with a third party. However, the Bill does preclude a community organisation from entering into an arrangement that would entitle it to seek an indemnity from a volunteer in respect of a liability of the community organisation arising out of conduct of the volunteer.

If more than one community organisation is involved in organising community work, the community organisation or organisations that principally organise that work will be liable for the actions of the volunteers undertaking the work. It is recognised that there may be some situations in which it is difficult to determine the principal community organisation, and that it is difficult to draft provisions that would apply to a variety of different circumstances. It will, therefore, be for the courts to resolve such issues in individual cases should they arise.

It will be important to communicate the extent to which the legislation protects volunteers and its limitations because, as I stated earlier, volunteers who are not connected with an incorporated organisation, local government authority or state agency will not be protected by the legislation. It is important for community organisations to ensure that they have sound risk management strategies in place, which should include adequate insurance cover.

Discussions are currently being undertaken between the Department for Community Development, RiskCover and the Department of Sport and Recreation to identify risk management strategies for community-based organisations. It is anticipated that this may be in the form of training based on the training already developed by the Department of Sport and Recreation. Information about the new legislation will also be made available on the Department for Community Development's volunteering secretariat web site and written information will be widely distributed.

In conclusion, I reiterate the Government's commitment to supporting Western Australian volunteers by providing protection from personal liability as a result of action that may arise from their contribution to the community in circumstances defined in this Bill. The Bill is also an important part of an overall strategy being developed by the Government to respond to public liability issues as outlined in the Premier's five-point plan last February. I believe the Bill has the potential to provide considerable comfort to many of the 428 600 volunteers known to work in a formal setting in Western Australia. I commend the Bill to the House.

Debate adjourned, on motion by Mr Bradshaw.