Volunteers and Food and Other Donors (Protection from Liability) Act 2002

The central concept is “volunteer”, defined in s 4 as a person who does “community work” on a “voluntary basis”. Community work is work organised by a community organisation for one of the prescribed purposes listed in s 3(1): religious, educational, charitable or benevolent; promoting literature, science or the arts; sport, recreation or amusement; caring for people with disabilities; conserving the environment; promoting historical or cultural heritage; establishing or improving community or cultural centres; promoting the interests of a local community; a political purpose; or a purpose prescribed by regulations. It expressly excludes work of a kind prescribed by regulation as not community work. Importantly, “organised” includes directed and supervised (s 3(1)). The list is broad but not open-ended.

To do work “on a voluntary basis” means the person receives no remuneration for that work other than remuneration they would receive anyway (e.g. a salary that continues while volunteering) or reimbursement of reasonable expenses. Alternatively, the person may receive remuneration not exceeding a prescribed amount (if any) (s 4(2)). The explicit exclusion for court-ordered work (s 4(3)) prevents persons performing community service as a sentence from claiming immunity. The definition also excludes persons taken to be performing functions under emergency services Acts, honorary fisheries officers (under the Fish Resources Management Act 1994), honorary wildlife, forest, ranger or conservation officers (under the Conservation and Land Management Act 1984), and functions prescribed by regulations (s 4(1)). These exclusions reflect a policy choice that persons in those roles already have statutory protections or should be subject to different liability rules.

“Community organisation” is defined in s 3(1) as a State agency or instrumentality, a department of the Public Service, an incorporated association under the Associations Incorporation Act 2015, a local government, or other body corporate, that organises the doing of community work by volunteers. Notably, unincorporated associations are not included unless they fall within a different category.

“Personal injury” is defined broadly in s 3(1) to include death, pre-natal injury, impairment of physical or mental condition, disease, and recurrence or aggravation of injury or disease. This definition applies only to Part 3 (food and grocery product donors) but also appears in Part 2 context as the type of loss excluded from volunteer protection in motor vehicle accident cases (s 6(2)).

For Part 3, “food” has the meaning given in the Food Act 2008 s 9 (s 3(1)). That incorporates a complex definition from food safety legislation. “Grocery product” means a personal hygiene product, a household cleaning product, a medical product that may be sold without prescription, or anything prescribed by regulations, but does not include food (s 3(1)). This distinction ensures that food and non-food donated items are treated similarly but defined separately.

The Act directly affects volunteers who perform community work for qualifying organisations. Any person who does unpaid or minimally paid work for a community organisation for one of the listed purposes is a potential beneficiary of the immunity. However, the immunity does not reach volunteers who work outside the scope of organised activities or contrary to instructions, or who are impaired. It also does not affect liability for defamation or for death or bodily injury from motor vehicle accidents covered by compulsory third party insurance. So volunteers in those circumstances remain exposed.

Community organisations are the primary bearers of the shifted liability under s 7. This includes a wide range of entities: government departments, local councils, incorporated associations, and other bodies corporate. For an unincorporated association, the Act is silent - presumably the volunteer’s personal liability remains unless the volunteer is protected. The Act also imposes liability on the State where the community organisation is a State agency that is not a body corporate (s 7(4)). This means taxpayers ultimately bear the risk for volunteer activities of government entities.

Food donors and grocery product donors are the second class of beneficiaries. This includes individuals, businesses (e.g. supermarkets, bakeries, farms), and charities that donate food or products for charitable or benevolent purposes, provided the conditions in s 8A(2) are met. The exclusion of distributors (s 8A(3)) means that a food bank that simply passes on donated food does not receive immunity under this Act for its own acts (it may have separate defences under the Food Act 2008 or common law).

Potential plaintiffs - persons injured by the acts of volunteers or by consumption of donated food - are affected because their right to sue the volunteer or donor is removed, redirected to the community organisation (for volunteers), or extinguished entirely (for food donors meeting the conditions). The Act therefore alters the distribution of accident costs.

Insurers are indirectly affected. Community organisations will need to ensure they have public liability insurance to cover the shifted liability. The s 6(2) carver for motor vehicle accidents preserves the operation of compulsory third party insurance. The voiding of indemnity agreements (s 8) means community organisations cannot require volunteers to bear the financial risk.

Volunteers have a right not to be sued for civil liability for acts done in good faith when doing community work, subject to the exceptions in s 6. They have no duty to comply with the Act; they simply receive a statutory defence. The Act does not impose any new positive duties on volunteers. However, if a volunteer wants the protection, they must act in good faith, within the scope of organised work, and in compliance with the organisation’s instructions. They must not be significantly impaired by alcohol or drugs (voluntarily taken, non-therapeutic). The onus of proof on these exceptions would likely lie on the plaintiff seeking to rebut the defence, but the Act is silent on evidentiary matters.

Community organisations have a duty to bear the civil liability that would have fallen on the volunteer (s 7(1)). This is not a defence but an imposition of liability. However, the organisation may rely on any protection from liability that would have applied had the organisation done the act itself (s 7(2)). For example, if the organisation would have a statutory immunity or a limitation of liability clause in a contract, that may reduce its exposure. The organisation cannot ask for an indemnity from the volunteer in relation to this shifted liability (s 8). The Act does not oblige organisations to obtain insurance, but the effective shifting of liability creates a strong incentive to do so.

Food and grocery product donors have a right to immunity from civil liability for personal injury caused by the donated items if the conditions in s 8A(2) are met. The donor must act in good faith for a charitable or benevolent purpose, must intend the product to be free to the consumer, must have ensured the product was fit or safe when it left the donor’s control, must inform the recipient of any special handling requirements, and must inform of any time limit for safety. These are conditions precedent to the protection. If any condition fails, the donor remains liable under ordinary tort law. The Act does not impose a duty to donate; it merely removes a disincentive.

Generic rights and duties: The Act does not create any new cause of action. It modifies existing common law and statutory rights to sue for negligence and other torts. Persons injured retain the right to sue the community organisation (in place of the volunteer) or the donor (if conditions not met). The Act expressly preserves other protections from liability given by other written laws (s 5(2)).

This Act contains no criminal penalties, fines, or imprisonment provisions. Its exclusive function is to define and limit civil liability. Enforcement therefore arises only in the context of civil litigation. A plaintiff suing a volunteer for damages will face the volunteer raising s 6(1) as a defence. The court must then determine whether the volunteer falls within the protection and whether any of the exceptions apply. Similarly, a plaintiff suing a food donor will face the s 8A defence if the conditions are met.

The only other enforcement mechanism is the voiding of indemnity agreements under s 8. That provision renders an agreement void to the extent it requires a volunteer to indemnify or contribute to the community organisation for the shift liability. This is self-executing: a court would simply refuse to enforce the agreement. There is no provision for penalties for entering into such an agreement, so the practical consequence is that the community organisation cannot recover from the volunteer.

Because the Act does not create any regulatory body, there is no enforcement agency for this legislation. Compliance is determined ad hoc in litigation. This reduces administrative costs but increases uncertainty for parties who must self assess whether they meet the conditions.

The Act explicitly states that it does not limit protection from liability given by another written law (s 5(2)). So a volunteer who is also protected by, say, a specific statutory immunity under the Carers Recognition Act 2004 or the Civil Liability Act 2002 (WA) can rely on all of them. The Act is a floor, not a ceiling.

The most significant interaction is with the Motor Vehicle (Third Party Insurance) Act 1943. Section 6(2) removes the volunteer protection for death or bodily injury caused by a motor vehicle where compulsory third party insurance was in force or required. This preserves the operation of the compulsory insurance scheme and ensures that victims of motor vehicle accidents can still claim against the driver’s insurer.

For community organisations, s 7(2) allows the organisation to rely on any protection from liability that would have applied had it done the act itself. This incorporates defences from other laws such as the Civil Liability Act 2002 (e.g. contributory negligence, obvious risk, dangerous recreational activity) or the Crown Suits Act 1947 for State agencies.

For food donors, the definition of “food” cross references the Food Act 2008, s 9. The Food Act 2008 imposes obligations on food businesses regarding safety and handling, but does not provide a specific immunity for donors. The s 8A protection is therefore a supplement. If a donor fails to meet the s 8A conditions, they remain subject to potential liability under the Food Act 2008 (for statutory offences) and common law negligence. The Act does not affect criminal liability under the Food Act 2008 for selling unsafe food; s 8A only covers civil liability for personal injury.

The Associations Incorporation Act 2015 is referenced in the definition of community organisation. This means incorporated associations are clearly covered. Unincorporated associations are not included, so volunteers working for them may not have the benefit of s 6 unless the association otherwise qualifies as a “body corporate” or the volunteer is otherwise protected. This is a gap.

The Act also interacts with workers’ compensation laws. Volunteers generally are not employees, so they do not receive workers’ compensation. The Act does not change that. The shifted liability under s 7 may be covered by public liability insurance rather than workers’ compensation.

Section 4 exclusions remove from the volunteer definition certain statutory office holders (emergency services, fisheries, wildlife officers). Those persons may have their own statutory protections or immunities under their respective Acts (e.g. Fire and Emergency Services Act 1998, Conservation and Land Management Act 1984). The Act ensures no overlap.

The Act was originally passed as the Volunteers (Protection from Liability) Act 2002 (No. 32 of 2002), receiving assent on 14 November 2002 and commencing on 1 January 2003. It dealt only with volunteer liability and the shifting of liability to community organisations. The long title and object were limited to that.

The major amendment came via the Volunteers (Protection from Liability) Amendment Act 2006 (No. 53 of 2006), which received assent on 26 October 2006 and commenced on 2 December 2006. This amendment inserted Part 3 (s 8A) protecting donors of food and grocery products. It also changed the short title to the current Volunteers and Food and Other Donors (Protection from Liability) Act 2002 to reflect the expanded scope. Further, it added headings to Parts 1-4 and made consequential amendments to the long title and definitions. The amendment expressly applies to donations made on or after its commencement (s 5(1a)).

Subsequent amendments were machinery:

• The Food Act 2008 (No. 43 of 2008), effective 24 October 2009, amended s 3(1) to replace a previous definition of “food” with a cross reference to the new Food Act 2008 s 9.

• The Fire and Emergency Services Legislation Amendment Act 2012 (No. 22 of 2012), effective 1 November 2012, amended s 4(1) to update the reference to the Fire and Emergency Services Act 1998 and to exclude persons performing functions under that Act from the definition of volunteer. This replaced an earlier exclusion for emergency services Acts.

• The Associations Incorporation Act 2015 (No. 30 of 2015), effective 1 July 2016, amended s 3(1) to replace references to the repealed Associations Incorporation Act 1987 with the new Associations Incorporation Act 2015.

There is an uncommenced provision: s 373 of the Aquatic Resources Management Act 2016 (No. 53 of 2016), which would amend s 4(1) to replace the reference to the Fish Resources Management Act 1994 with a reference to the new Act, but this is not yet in force. Volunteers holding honorary fisheries officers would still be excluded under the current wording until that amendment commences.

The compilation table shows one reprint (as at 19 Jan 2007) incorporating the 2006 amendments. The Act is now up to date as per the latest compilation.

The source text does not cite any case law, and no decisions are mentioned in the legislation or its notes. This is not surprising for a statute that functions primarily as a defence rather than as a source of rights. The Act has been in force since 2003 for Part 2 and since 2006 for Part 3. However, reported decisions interpreting this specific Act are sparse. A diligent search would be needed, but the absence from the source indicates that the legislature did not embed any reference to judicial interpretation.

Likely areas of litigation include: what constitutes “good faith” (s 6(1) and s 8A(2)(a)). Does it require subjective honesty, or an objective standard? The Act does not define it, so courts would apply common law meaning. Another area is the standard for “knew or ought reasonably to have known” in s 6(3)(a) - this imports a negligence standard onto the volunteer. What is “significant impairment” from alcohol or drugs? Courts will have to draw lines. For food donors, what is “fit for human consumption” and “safe to use”? These terms have established meanings in food law but may be litigated in civil cases. Also, the condition that food must be fit at the time it left the donor’s possession: if food is donated that later deteriorates due to time or temperature abuse by the recipient, the donor may still be protected if it was fit when donated.

Because the Act does not include a provision for proportionate liability or caps, it operates within the general civil liability framework. Plaintiffs may attempt to argue that the volunteer was not acting “in good faith” because they were reckless or knowing. The motor vehicle carver (s 6(2)) is likely to be invoked in many personal injury cases involving volunteers who drive. The interaction with compulsory insurance is clear.

Despite the lack of cited cases, practitioners advising volunteers and donors should be aware that the defences are not absolute and each exception is a potential battleground. The absence of case law also means there is limited guidance on how courts interpret the conditions, increasing uncertainty.

1. Good faith requirement: The volunteer protection and the food donor protection both require the person to act “in good faith”. This is not defined. A volunteer who is negligent but honest may still be protected; one who acts maliciously, dishonestly, or recklessly may not. The burden of proof is likely on the plaintiff to show bad faith.

2. Scope and instructions trap: Volunteers lose protection if they knew or ought reasonably to have known they were acting outside the scope of the organised work or contrary to instructions (s 6(3)(a)). A vague instruction from the organisation could leave the volunteer unprotected. Organisations should ensure instructions are clear and documented.

3. Impairment by alcohol or drugs: Even a single volunteer who has had a few drinks and whose ability is “significantly impaired” loses protection. The Act does not require a blood alcohol reading; it is a subjective standard for the court. The phrase “significantly impaired” suggests more than minor impairment.

4. Motor vehicle accidents: The protection does not cover death or bodily injury caused by a motor vehicle if compulsory third party insurance was in force or required (s 6(2)). This means volunteers who drive as part of community work are still potentially personally liable for injuries to third parties (not just property damage). The exemption is not limited to road traffic; it covers any “driving of a motor vehicle”.

5. No protection for distributors: The food donor protection specifically excludes a person who distributes food donated by another (s 8A(3)). A charity that simply passes on donated food does not get immunity under this Act for its own acts, though the original donor is protected. The charity may need separate insurance or rely on other defences.

6. Handling and time limit info: Donors must inform the recipient of any handling requirements and time limits for safety. Failure to do so means no protection, even if the food was safe at donation. This imposes an information duty that donors may overlook.

7. Definition of volunteer excludes statutory officers: Persons performing functions under emergency services Acts, honorary fisheries officers, and honorary wildlife/ranger/conservation officers are excluded. They may have other protections but cannot rely on this Act.

8. Voluntary basis traps: A person who receives more than reimbursement of reasonable expenses may still be a volunteer if their remuneration is not greater than a prescribed amount (s 4(2)(b)). As of the source, no such amount is prescribed. Therefore, any remuneration above reimbursement likely disqualifies the person from being a volunteer.

9. Indemnity agreements void: s 8 voids agreements requiring volunteers to indemnify the organisation for liability shifted under s 7. However, it does not void agreements for indemnity against other liabilities (e.g. if the volunteer acts outside scope). Organisations may still seek indemnity in those circumstances.

10. State liability: If the community organisation is a State agency that is not a body corporate, the liability is incurred by the State (s 7(4)). This means the taxpayer bears the risk. It also means that the State has no right to be indemnified by the volunteer.

11. Other protections preserved: s 5(2) says the Act does not limit protection under other written law. This could mean that even if a volunteer fails to gain protection under this Act, another statute might still protect them. It is not a comprehensive code.

For volunteers, the key is to ensure you are acting within the scope of work organised by a community organisation and that you follow its instructions. Keep evidence of your role: written descriptions, rosters, or emails from the organisation. Avoid alcohol and non-therapeutic drugs before and during volunteering. If your ability is impaired, you lose protection. Do not assume protection applies if you are driving and cause injury - you may still be liable for third party injury if compulsory insurance applies. In practice, volunteers should also have their own personal liability insurance as a fallback.

For community organisations, the primary compliance step is to obtain public liability insurance that covers the volunteer activities. The Act shifts liability to the organisation, so an uninsured organisation faces financial risk. Organisations should also clearly document the scope of work for each volunteer and provide written instructions. Ensure volunteers are trained on limits. Keep records of instructions given. If the organisation has a motor vehicle for volunteer use, ensure it has compulsory third party insurance and consider additional insurance for property damage. Do not ask volunteers for indemnities against the liability shifted by s 7 - such agreements are void. Instead, rely on insurance.

For food and grocery product donors, compliance requires careful practices. Donate only food that is fit for human consumption at the time it leaves your possession. If donating perishable items, provide clear handling instructions (e.g. “keep refrigerated”, “use by date”) and the time limit for safe use. Document this information in writing. Act in good faith for a charitable or benevolent purpose - that means you are donating without expectation of payment for the recipient. Do not expect protection if you donate expired or contaminated food. If you donate non-food grocery products (e.g. soap, cleaning products), ensure they are safe to use and provide any safety instructions. The donor should not rely on the recipient to ask for information; proactively provide it. Distributors (e.g. food banks) should have their own liability insurance and should not assume they are protected under this Act for their own acts; they may need to rely on the original donor’s immunity in defence of claims but are still potentially liable if they mishandle the goods.

All parties should document compliance. For volunteers, keep records of training, instructions, and any expenses reimbursed. For organisations, maintain volunteer agreements and activity logs. For donors, keep records of the condition of donated items at the time of donation, and copies of any handling instructions given.

Finally, seek legal advice if there is any doubt, especially in high risk activities such as supervising children, providing health services, or handling hazardous materials. The Act provides a shield, but it is not impenetrable.