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