Section 1.3      Types of law—legislation and common law

As discussed earlier, legislation is a set of guidelines, passed by an Act of Parliament, which clearly defines what is legal and illegal.  An example is the Occupational Health and Safety (OHS) Act (2000).  In contrast, common law is what is known as judge-made law, as the decision about guilt is decided using legal precedence and community attitudes and expectations.  In the Community Services Industry (CSI), the most obvious example of common law is the duty of care requirement.

Duty of care outlines workers’ responsibilities to provide appropriate standards of care and to avoid foreseeable harm to clients.  For example, if a worker is accused of not fulfilling their duty of care to a person with a disability, the decision about how guilty they are is related to community attitudes about what is considered fair and reasonable treatment.

1.3.1   Statutory requirements

If a legal obligation is statutory, it means there is an Act that says you have to do something or not do something.  You can be legally punished if the Act is not followed.  For example, it is a statutory obligation in NSW for community welfare workers to report situations where they feel a child in their care is at risk of harm.

1.3.2   Regulatory requirements

Regulatory requirements refer to standards or rules on how a service should be run in order to meet the needs of the clients effectively and safely and to enhance the client’s wellbeing.

1.3.3   Why have statutory and regulatory requirements?

We have a legal obligation to follow statutory and regulatory requirements in our service in order to keep the clients in our care safe.  We keep them safe by making sure the environment they are in is safe and through protecting their safety if we believe they are at risk of harm.

The statutory and regulatory requirements contained in Acts and Regulations shape community service organisations’ policies and procedures—they guide your decisions about what is ‘right’ in regard to your clients.

The National Standards for Mental Health Services, as shown above, ensures people with mental health issues, mental illness and mental disorders are treated with respect and receive an individualised service which is appropriate to their needs.  They have a right to live in and be part of the community, make decisions that affect their lives, realise their individual capacities for physical, social, emotional and intellectual development, take risks and receive protection from exploitation and discrimination.  The Commonwealth Department of Health and Family Services (CDHFS) was the government department (at the time) who oversaw the funding programs for people with mental health issues and in collaboration with the State health ministers has developed these standards that services receiving funding must adhere to.  These are guidelines or principles for how the service should operate under the legislation.

As you can see, legislation can have a significant impact on the work of an organisation.

To look up any state legislation, go to the NSW Government legislation website where you can search or browse alphabetical lists for the Acts you are looking for.  The web address is legislation.nsw.gov.au