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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH VOLUNTEERS PROTECTION BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Revenue and
Assistant Treasurer,
Senator the Hon Helen Coonan)
52651
Table of Contents
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1.1 Volunteers play a vital role in Australia, each year giving around 700 million hours of their own time to help others. Volunteers provide an economic benefit, as well as helping to build community networks and encourage social cohesion.
1.2 However, the threat of legal liability may discourage people from offering their services in a voluntary capacity. This possibility is increased in the face of rising premiums and reduced availability of public liability insurance.
1.3 At the Ministerial Meeting on Public Liability on 30 May 2002, the Commonwealth, State and Territory Ministers agreed that a number of jurisdictions, including the Commonwealth, would introduce legislation to protect volunteers from being sued for negligence.
1.4 The purpose of the Commonwealth Volunteers Protection Bill 2002 is to protect people who perform voluntary work for the Commonwealth or a Commonwealth authority from civil liability for acts or omissions of the volunteer done, in good faith, when performing that work.
1.5 The Commonwealth or Commonwealth authority incurs the civil liability that, except for this Bill, a volunteer would incur.
1.6 The Bill is intended to provide comfort to people performing voluntary work for the Commonwealth or a Commonwealth authority, that they will not be personally liable to pay compensation to third parties to whom they may have unintentionally caused personal injury, property damage or financial loss.
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2.1 In the last five years there has not been a significant number of claims by third parties against volunteers or the Commonwealth in respect of services performed by volunteers for the Commonwealth. It seems unlikely that this Bill will result in a significant increase in the number of claims arising from the activities of volunteers.
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3.1 This is a formal provision that specifies that the short title of the Bill is the Commonwealth Volunteers Protection Bill 2002.
3.2 The commencement of the Bill is designed to allow the Commonwealth and Commonwealth authorities sufficient time to adjust administrative and insurance arrangements for volunteers to reflect the changes introduced by the Bill.
3.3 Clauses 3 to 11 will commence within six months of the Bill receiving Royal Assent (on a day set by proclamation). Alternatively, if no day is set by proclamation, the sections will automatically commence on the day after the end of the six month period.
3.4 The operation of the Bill is extended by this clause to external territories.
3.5 This clause defines various expressions. These definitions will be explained in the context in which they appear in the Bill.
3.6 The Bill only covers actions of Commonwealth volunteers occurring after commencement.
3.7 Under clause 6, individuals are protected from civil liability for activities performed in good faith in the course of performing voluntary work organised by the Commonwealth or a Commonwealth authority. (Sub-clause 4(4) extends coverage of the Bill to both acts and omissions.)
3.8 Sub-clause 4(1) defines ‘Commonwealth’ to include bodies established or continued in existence for a public purpose by or under a Commonwealth law, Departments of the Parliament, and the Federal courts.
3.9 The definition of ‘Commonwealth authority’ is modelled on the definition in the Commonwealth Authorities and Companies Act 1997. It means (with some exceptions) a body corporate established or continued in existence for a public purpose by or under a law of the Commonwealth.
• The combined definitions of Commonwealth and Commonwealth authority extend the coverage of the Bill beyond Commonwealth Departments and agencies to cover organisations such as the Bureau of Meteorology, National War Memorial, Australian National Botanical Gardens, and airport fire services on Christmas Island.
3.10 The definition of ‘Voluntary basis’ is based on a concept of services provided for free or for limited remuneration and/or reimbursement of reasonable expenses. However, the definition also recognises that some employers encourage their employees to provide voluntary services to the community during the normal hours of their paid employment. Under sub-clause 4(3) such a person is considered to be a volunteer even if the person receives remuneration for their usual work while performing voluntary work.
3.11 ‘Organised’ is defined to include concepts of direction and supervision. This is an important element in determining the organisation for which the volunteer is undertaking volunteer work. This definition excludes from the protection of the Bill volunteers working for a body funded by the Commonwealth or a Commonwealth authority where the body itself (rather than the Commonwealth or Commonwealth authority) directly organises and supervises the work of volunteers.
• For example, a volunteer working for a third party organisation which receives some funding from the Commonwealth (for example by grant) is not intended to be covered by this legislation. Similarly, the Bill is not intended to cover volunteers for third party organisations that perform work on behalf of the Commonwealth (for example, job network agencies, agencies that organise Work for the Dole schemes or St John Ambulance volunteers working at Commonwealth events). (In many cases these volunteers will be protected by legislation being passed by state governments.)
3.12 The protection from liability under sub-clause 6(1) is not provided in specified circumstances:
• where an individual performs voluntary work subject to a court order
• where the liability falls within the ambit of a compulsory third party motor vehicle insurance scheme or defamation
• where the volunteer’s ability to perform the work was significantly impaired by recreational drugs. Recreational drug is defined in sub-clause 4(1) to mean a drug consumed voluntarily for non-medicinal purposes and includes alcohol
• where the volunteer was acting outside the scope of the authorised activities; or where the volunteer was acting contrary to instructions. An example of where a volunteer would be considered to be acting outside the scope of authorised activities would be if the volunteer was engaging in criminal conduct.
3.13 This clause imposes on the Commonwealth or Commonwealth authority the civil liability that the volunteer would, except for clause 6, incur.
3.14 A number of Commonwealth agencies enjoy some immunity from liability by virtue of provisions in the legislation that established them. Sub-clause 7(2) would prevent the transfer of liability under clause 7(1) if the Commonwealth authority has statutory protection from liability for things done by the volunteer.
3.15 Clause 8 is designed to ensure that a volunteer provides assistance to the Commonwealth or Commonwealth authority in dealing with any action, claim or demand that arises against the Commonwealth/Commonwealth authority as a result of actions of the volunteer.
3.16 The volunteer benefits from the protection from civil liability provided by this Bill, but has a responsibility to ensure that the Commonwealth / Commonwealth authority is not disadvantaged in proceedings due to a lack of cooperation from that individual.
3.17 The Commonwealth/Commonwealth authority might ask the individual to, for example, attend meetings, provide statements about the event that may have resulted in civil liability, appear in court as a witness, provide supporting documents etc. It is not intended that volunteers provide the Commonwealth/Commonwealth authority with financial assistance.
3.18 Clause 9 ensures that the protections afforded to individuals by this Bill cannot be waived by individuals. This clause provides that an indemnity given by a volunteer against a liability that the Commonwealth or Commonwealth authority incurs under this Act has no effect.
3.19 This Bill does not limit the operation of the Damage by Aircraft Act 1999. The main object of the Damage by Aircraft Act 1999 is to facilitate recovery of damages caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight. The Act imposes strict liability for such damage.
3.20 It is unlikely that there would be many situations where volunteers would be liable under the Damage by Aircraft Act 1999. Nevertheless, Clause 10 removes any doubt about the potential liability of volunteers for actions that fall within the scope of that Act.
3.21 This clause enables the making of regulations under the Bill.