On 27 March 2024, the Hon Brett Lee Potter, in his capacity as the Northern Territory’s Minister for Police, issued a declaration under the Emergency Management Act 2013 (NT) s 18(2). The next day the declaration was amended so that it referred to Mr Potter as the Minister for Fire and Emergency Services rather than the Minister for Police. The declaration says that:

… an emergency situation exists in the area described as “High Risk Area – Alice Springs Precinct” and shown within the thick yellow lines depicted on Certified Plan S2023/023 lodged with the Surveyor-General, Darwin.

The area is shown on the picture below. The picture is sourced from, and you can read the declarations in full, at the following website https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration.

The declaration remains in force until the Minister declares that it is no longer in force (s 18(1)(a)).

The declaration itself says nothing about the response to the ‘emergency situation’. The website says:

Dates and hours in effect

Wednesday 27 March to Wednesday 10 April 2024 from 6pm to 6am, unless revoked beforehand.

Who it affects

The curfew affects you if you’re in the high risk area and are under the age of 18 years without a valid reason, between 6pm and 6am

A valid reason can include:

• working as part of your employment

• accessing a youth-related service

• being with a responsible adult

• having a medical emergency.

• working as part of your employment
• accessing a youth-related service
• being with a responsible adult
• having a medical emergency.

Police are taking a common sense approach. This means you don’t need documentation if you have a valid reason for being out during curfew.

How it’s enforced

There will be an increased police presence.

Police will speak with you if you’re out during the curfew hours. If necessary, you will be instructed to leave the area or taken to a safe place with your consent.

The police will do this with the support of the Youth Outreach Engagement Team and the Tangentyere Council community patrols.

If you don’t follow directions, you will be cautioned that you’re committing an offence.

Arrests and youth diversion will be considered under the Youth Justice Act 2005 if you continue to not follow police direction.

The union representing the NT Police have raised doubts over whether the Emergency Management Act 2013 (NT) can authorise the implementation of a curfew that is now in place in Alice Springs – see

• Legality of Mparntwe/Alice Springs curfew called in… | NIT; and
• Do the police have the powers to enforce the Alice Springs youth curfew? | ABC News (youtube.com)

I cannot give a definitive answer to the question of whether the curfew is legal under this Act, that will be up to a court if anyone challenges it; but I can see the argument.

The Emergency Management Act 2013 (NT)

The Act says, at s 18(2):

The Minister, acting on the advice of the Council, may declare that an emergency situation exists in an area if:

(a) an event has occurred or is reasonably likely to occur; and

(b) the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event.

‘Council’ means the Territory Emergency Management Council established by s 36 of the Act. The term ‘event’ means (s 8):

… an occurrence, whether natural or caused by human acts or omissions, that:

(a) causes or threatens to cause:

(i) loss of, or damage to, property; or

(ii) loss of life or injury or distress to persons; or

(b) in any way endangers the safety of the public.

Section 23 says that during an ‘emergency situation’:

(1) … an authorised officer may do any of the following to carry out emergency operations or recovery operations or to ensure adequate protection of life or property:

(a) direct a person to evacuate from, and remain outside, a specified place in the affected area;

(b) remove or direct another person to remove a person who does not comply with a direction under paragraph (a) from the place;

(c) direct the owner of anything in or near the affected area to remove or secure the thing;

(d) remove or secure, or direct another person to remove or secure, anything in or near the affected area if the owner of the thing:

(i) does not comply with a direction to remove or secure the thing under paragraph (c); or

(ii) cannot be found within a reasonable time to give the owner a direction under paragraph (c);

(e) direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer.

(2) An authorised officer, or a person acting in accordance with the directions of an authorised officer, may use reasonable force to remove a person under subsection (1)(b) if necessary.

A police officer is an authorised officer (s 98(1)(f)). 

Section 4 of the Act says:

This Act does not authorise a person to do, or make preparations to do, any of the following:

(a) engage in armed combat;

(b) put down a riot or other civil disturbance;

(c) end a strike or lockout.

The terms ‘riot’ and ‘civil disturbance’ are not defined.

Discussion

The Minister’s declaration does not identify ‘an event’ that has warranted the declaration.  Compare that to, for example the declaration of a national emergency in response to the 2022 NSW Floods which set in detail the event and the reasons for the declaration (see https://www.legislation.gov.au/F2022L00312/latest/text).  Compare also the various Public Safety Orders made under the Public Health and Wellbeing Act 1988 (Vic) relating to the COVID pandemic (https://www.health.vic.gov.au/covid-19/public-safety-order-2022) which provide some statement of the risk being addressed and why the orders are necessary and the declaration of a state of emergency in NSW in 2019 (NSW Government Gazette, 19 December 2019 https://legacy.legislation.nsw.gov.au/regulations/2019-664.pdf) where the Premier said she was ‘satisfied that an emergency, namely bushfires in various parts of the State, constitutes a significant and widespread danger to life or property …’

We are of course meant to infer that there is lawlessness in Alice Springs but as noted, the actual ‘event’ that is said to warrant the declaration is not identified.  Leaving it to people to infer from the press release is hardly sufficient.  Presumably if the declaration is challenged the Minister will need to produce the advice received from the Council to put the declaration in context but the declaration, on its face, gives no guidance to either the police or the citizenry as to what it is about or why it is needed.

The failure of the NT minister to identify the nature of the emergency and whether paragraphs (a) and/or (b) of the definition of an ‘event’ apply or why the powers under s 23 are required is a significant omission.

If the issue is lawlessness, the question will arise whether it is permitted by s 4. The Criminal Code 1983 (NT) s 63 says:

(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly…

(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot and the persons assembled are said to be riotously assembled.

If young people are gathering on the streets of Alice Springs in order to ‘conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds’ then they commit an offence which may turn into a riot. Presumably the point of the curfew is to prevent the offence which is better than criminal prosecution after the event so there is much to commend it.  Arguably the powers are not being used to ‘put down’ but rather prevent a ‘riot or other civil disturbance’ but it would be an arguable point.

The government website (https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration#emergency-declaration) says:

The Northern Territory (NT) Government has declared an emergency situation in Alice Springs. This includes a curfew in the high risk area to enhance the safety of young people in Alice Springs.

The declaration does not include a curfew. The declaration, published on the website, says nothing about the powers that may be used. It is unusual for the government to publish how this emergency declaration is to be enforced. The presence of the declaration empowers police, as authorised officers, to exercise the powers listed in s 23 as they see fit. They can exercise those powers ‘to carry out emergency operations or recovery operations or to ensure adequate protection of life or property’.

One can imagine that during an emergency a fire service or the Territory Emergency Service may want to order an evacuation in order to allow fire fighting operations to continue or to remove people at risk from a flood zone.  One would not expect the government of the day to tell the emergency managers what powers they will exercise.

Given the curfew only applies to those under the age of 18 it may be contrary to anti-discrimination legislation. Not all discrimination is unlawful but discrimination on the basis of age is (Anti-Discrimination Act 1992 (NT) s 19(1)(d); Age Discrimination Act 2004 (Cth)). Society discriminates against people on the basis of their age all the time, people have to meet a particular age to be criminally responsible for their actions, to be able to give effective consent to sexual intercourse, to drive, to vote etc.  Age Discrimination in the NT is not unlawful if it is required or authorised by ‘an Act or regulation of the Territory’ (s 23(a)). The police powers are authorised by s 23 of the Act but there is no specific power to discriminate on age. I can imagine a fire incident controller would want to direct a group of young people who are making the job of the firefighters harder than it needs to be but that would not be directing them to leave because of there age. But I can imagine in a flood or fire there may be an order to evacuate children on the basis that the adults can make their own decisions and may want to ‘stay and defend’ but children are at particular risk. I would infer that s 23 would be broad enough to justify that sort of discrimination where it is necessary for the purposes set out in s 18 . Equally there is nothing to stop the police extending the curfew to everyone if they think that is warranted. Of course we cannot judge what is warranted as we don’t know what ‘event’ triggered the declaration or what is at risk.

The Commonwealth Act (which applies in the NT by virtue of s 10 and the Australian Constitution s 122) says (at s 27):

It is unlawful for a person to discriminate against another person on the ground of the other person’s age:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first – mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to such premises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first – mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

The NT government is intending to restrict the access of young people to the public presmises (eg parks, the streets etc) on the basis of their age alone.  

Conclusion

Naturally the NT government have their own advice. I am not privy to that advice nor to the advice given to the Minister by the Council.

From an administrative law point of view the failure to identify, in the declaration, what event calls for the declaration, and whether the Minister is satisfied that the event causes or threatens to cause loss of, or damage to, property, loss of life or injury or distress to persons or in some way endangers the safety of the public is a major omission. It would be up to a court to decide whether it can consider the advice the Minister has received or whether the declaration has to be judged on its face. On its face it does not disclose that the Minister has considered any of the factors he is required to consider when making the declaration. 

On its face the declaration bears no relationship to the instructions on what the police will do in response to the declaration. The declaration is not limited as to time (though the website says it will expire on 10 April); the declaration does not identify why the powers under s 23 will be used nor how or on what basis it has been decided, in the absence of any particular event, that a curfew for those aged under 18 is a necessary response to the unidentified risk. Insisting that there is a curfew for those under the age of 18 may well be a breach of the Age Discrimination Act 2004 (Cth).  

The declaration says that there is an emergency situation.  It is up to the authorised officers to determine what powers under s 23 are relevant in response to that undefined situation. The failure to set out, either in the declaration or the website, the circumstances leading to the declaration give the police, and the citizens, no guidance on what powers under s 23 are relevant to the response to the emergency situation and would give a court little opportunity to assess whether the measures set out on the website are an appropriate response for the purpose of responding to the emergency.

I don’t pretend to have a definitive answer to the question ‘is the declaration unlawful?’  I can see the issue and can understand the concerns raised. If nothing else the failure to address the matters required by s 18 that is setting out what ‘event has occurred or is reasonably likely to occur’ and how or why ‘the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event’ is very bad form. There would be an arguable case that the minister has not considered the factors required by s 18(2) and that the declaration is specifically prohibited by s 4(b).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

I received an email purporting to be from a chaplain associated with one of the emergency services. The email said:

I am a chaplain with [service name] …  Following a recent conversation, one of the [members] … explained to me that they made an enquiry to you about … [number of] years ago regarding [subject matter and link to post included] …

They have expressed that they feel incredibly embarrassed about having asked the question, going as far to admit that it still upsets them to think about it today. I am reaching out at their request, to ask if you could possibly remove the response post from your public page? …

I was torn. On the one hand I don’t like to delete my posts (see Blog content removed (May 17, 2021)) and I thought the post of concern was a good and useful post.  On the other hand, I don’t want to cause unnecessary grief, but talking about the law involves talking about difficult subjects and often involves telling people they’re wrong when they really want to be, or believe they are, right.  And when I’m reporting on cases I appreciate that I am making information more accessible to a wider audience.  Given the competing concerns I wanted to discuss with the chaplain whether some editing to further deidentify the source of the question would meet two competing objectives – ie to provide a public answer but to minimise the grief.  A quick google search brought up the chaplain’s phone number.

Imagine their surprise in receiving my call, and my surprise when they said they are no longer a chaplain for that service and have not been for many years.  They did not write the email and it did not come from their email address, but it did come from a Gmail address using their name, so someone has gone to significant lengths to impersonate them.  Possibly it’s the author of the original question who thought pretending to be a chaplain may have more impact than a direct approach? Perhaps it’s someone else?  Either way it is outrageous that anyone would attempt such subterfuge and I put this up here so that whoever wrote it knows that a) the email was received b) the fraud was discovered and c) the original post will remain. And if anyone thinks the original correspondent is, or should be, or might be ‘incredibly embarrassed’ by their question whoever wrote this email should be doubly so.  Rest assured, if I identify who they are, I will report them to the agency involved for improper conduct in impersonating a former service chaplain.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent not only raised the issue, they also provided the answer.  The gist of the issue is RFS members:

… purchasing AUD$30 radios from eBay, known as the Baofeng UV5R, which is a cost effective radio from the overseas market. However, this draws some interesting attention from the ACMA [Australian Communications and Media Authority]:

• ACMA Beware of 2-way radios from overseas (29 March 2023)

• South Easthern Communications Illegal Radios Warning (2024)

It’s concerning from a legal liability perspective of volunteers providing their own seemingly illegal communications equipment … From my limited understanding – this would mean non-type approved radios being used on commercial frequencies.

I infer that the question I’m being asked is ‘Am I reading that correctly?’ and the answer is ‘yes’.   

Unauthorised equipment

The Radiocommunications Equipment (General) Rules 2021 (Cth) r 11(1) says:

A person must not possess a device that does not comply with each general standard that is prescribed for it, if the possession is for the purpose of operation.

And, if you have it in your possession, and it works, then it is presumed you have it for the purpose of operation (r 11(2); see also Radiocommunications Act 1992 (Cth) s 48).

A manufacturer or importer are in breach if they make available a radio that is not labelled to confirm it applies to the relevant standards (r 25 and 27; Schedule 3).

According to the ACMA website, possession of an unlicensed radio carries maximum penalties of:

• “fines of up to $412,500” [and]
• “up to 2 years in prison”

That webpage was last updated on 29 March 2023. The Radiocommunications Act 1992 (Cth) s 47 ‘Unlawful possession of radiocommunications devices’ provides for maximum penalties, for an individual, of 2 years imprisonment and a fine of 1500 penalty units. The Crimes (Amount of Penalty Unit) Instrument 2023 (Cth) commenced on 1 July 2023 and provides that a penalty unit is $313 so the maximum fine, after 1 July 2023 is $469,500. No doubt it will go up again on 1 July 2024.

 I cannot comment on whether any particular radio meets the relevant standards, but we can note the advice from ACMA to be wary of buying radios from overseas.  And the website from South Eastern Communications says:

Baofeng Brand Radios are ALL ILLEGAL

ALL Baofeng Radios Are Illegal To Use In Australia. Most of these radios come in Illegally and are Programmed with Police and other frequencies that interfere with licensed users and Public Safety Radios. These Radios are Dangerous.

Models Such As:

UV5R …

Licences

With respect to a licence, members of the RFS are not required to have a licence to operate RFS radios provided they have been authorised by the RFS and are using the radio ‘in the course of performing the person’s functions or duties as a member or employee of a public safety body…’ Radiocommunications (Public Safety and Emergency Response) Class Licence 2013 (Cth) s 3 definition of ‘public safety body’ and ss 6 and 7).  It would be no defence to say that the radios purchased from ebay were being operated on the RFS licenced frequency by RFS firefighters.  Keeping uncertified radios off the licenced frequency is the very point of the prohibitions and one can infer that the RFS will only authorise people to use radios supplied by the RFS.

A class licence is also in place authorising anyone, to use UHF CB radio – see ACMA Citizen band radio stations class licence (15 January 2024) and the Radiocommunications (Citizen Band Radio Stations) Class Licence 2015 (Cth).

For licences issued to the RFS to allow the RFS to operate its communications network see: https://web.acma.gov.au/rrl/calient_search.client_lookup?pCLIENT_NO=5832

The presence of these class licences means that individuals do not need to obtain a licence issued in their name but they must comply with the terms of the class licence. The class licence has no impact on the prohibition not to possess or use an uncertified radio device.

Conclusion

Members of the RFS, and in fact anyone, who is in possession of, or uses, a two-way radio that is not certified for use in Australia commits a serious offence.

The prohibition is not limited to ‘non-type approved radios being used on commercial frequencies’; it is a prohibition on the possession of any non-approved radio and the use of ‘non-type approved radios’ on any frequency.

The fact that the radio is being used by RFS volunteers on an RFS frequency is not a defence, it would be an aggravating factor as the uncertified radio would interfere with the authorised radios on that frequency.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

The Health Practitioner Regulation National Law (NSW) requires a registered health professional to notify their board within 7 days (s 130(1)) of being charged with a criminal offence punishable by 12 months imprisonment or more (s 130(3)(a)) or after being convicted of an offence punishable by any period of imprisonment (s 130(3)(b)).  For example, the offence of driving with a middle range prescribed concentration of alcohol (contrary to the Road Transport Act 2013 (NSW) s 110(4)) carries a maximum penalty of 9 months imprisonment.  A registered paramedic would not need to disclose that he or she had been charged with this offence; but would need to notify the Paramedicine Board within 7 days of being convicted of the offence.  A second offence carries a maximum penalty of 12 months imprisonment so a paramedic who is facing a second allegation within 5 years of the first would have to report it to the board as soon as they were charged, and again after the court proceedings if they are convicted.

In Health Care Complaints Commission v Richards [2024] NSWCATOD 37 the NSW Civil and Administrative Tribunal determined to disqualify a paramedic who (at [98]):

…  failed to notify AHPRA when he was found guilty of driving in 2020 with mid-range prescribed concentration of alcohol, who was charged and convicted of again driving in 2022 with mid-range prescribed concentration of alcohol (and failed to promptly notify AHPRA of that charge and conviction) and who was charged and convicted of driving an ambulance whilst suspended the following week (and failed to promptly notify AHPRA of that charge and conviction). The practitioner also failed to immediately notify his employer when his licence was suspended and he was charged with driving offences and transported patients on two days while his licence was suspended.

The Health Care Complaints Commission argued that driving patients whilst suspended was itself sufficient to warrant a finding that the practitioner should be suspended.  The Commission argued (at [104]) (and quoting from the practitioner’s police interview) that ‘a paramedic who had been registered since 2019 … must have known that it was wrong to work his shifts while his licence was suspended but apparently decided to work rather than call in sick (telling police that he did not want to “’burn’ too much sick leave”, or “’blow off’ four shifts”.’  The Tribunal agreed saying that this conduct, ie failing to notify the employer of the charge and licence suspension and driving ambulances on 4 shifts whilst suspended, ‘goes to the very heart of the role of a paramedic, and in our view constitutes professional misconduct’.  The Commission argued for a suspension of 1 to 2 years. The Tribunal said (at [110]-[115]):

In our view, a period of disqualification at the higher end of the period sought by the Commission is warranted. This is for the following reasons.

First, the practitioner has not helped himself by failing to attend the s 150 hearing [regarding immediate suspension] and the Tribunal hearing. This has the result that, while he says that he has “taken full responsibility for [his] actions” there has been no opportunity to test whether he has in fact accepted responsibility for his actions.

Secondly, there has been no opportunity for the Tribunal to assess the practitioner’s stated remorse or to understand what if any insight he may have developed.

Thirdly, while the practitioner claims that it was “never his intention” to deceive AHPRA, he must have known that information about drink driving would be useful for AHPRA because he had already (correctly) mentioned his 2014 conviction when he submitted his original application for paramedicine registration in 2018 and he had already (albeit late) mentioned his 2020 criminal finding in his 2020 annual renewal.

Fourthly, it appears that it appears that the practitioner took a number of steps to conceal his 3 July 2022 charge and licence suspension.

Fifthly, a disqualification period of two years will make clear to the practitioner, the profession and the public the seriousness with which the Tribunal views repeated drink driving by a paramedic who then drives an ambulance transporting patients while his licence is suspended.

The Tribunal ordered that it be recorded that if the practitioner was still registered, they would have cancelled his registration. He was disqualified from applying for registration as a paramedic for 2 years.  It is not known whether similar action will be taken by the Nurses Council.

Discussion

The first issue is the seriousness of this conduct and how practitioners have to be prepared to deal with issues as they arise. In his police interview the practitioner, when asked why he drove, said:

“… I was just trying to pick up the pieces and go right and formulate a plan as to, … how am I going to possibly go about this…. Got to call a lawyer, got to do this. I wanted to just ride it out until it got to court and see what happened. Obviously it has gone incredibly south…. Why did I drive? I didn’t want to burn too much sick leave, you know, blow off four shifts. …I understood the legality of it, didn’t want to let the team down”

It can be tempting to ignore things in the hope one can formulate a plan but for practitioners in a position of trust that is never acceptable.  As the Commission said in their submission (at [104]) ‘the objectives of the national scheme include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’.   Failing to immediately face up to the consequence of one’s actions is inconsistent with that position.  

The second issue is my role in reporting this case. The practitioner in letters written to the Courts and to the Tribunal and in his interview with police made it clear the toll this event has had on him personally.   At [4] ‘The repercussions have been immense and overwhelming.’  At [26] ‘I am embarrassed and ashamed to have brought the health profession into disrepute’ and:

This investigation processes run by the Paramedic and Nursing Councils and HCCC and other internal bodies have taken a huge toll on my life. I have suffered the humiliation of newspaper articles the character assassinations at the hands of authorities resulting in the publication of my name and my address further adding to the psychological stresses.

I do not wish to add to anyone’s humiliation, but decisions such as these are public documents.  Whether I write on it or not, the information is freely available to anyone who wants to look. Further, the way the system is supposed to work is orders by the Tribunal, like criminal punishments, are meant to have a deterrent effect. As the Tribunal said (at [106] ‘deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession’.  The outcome has no deterrent effect if it is not communicated to those who need to understand the standards expected of them, i.e other paramedics.   

I don’t write on cases that reveal personal circumstances simply for the entertainment of myself or my readers.  I would, however, do a disservice to the professions (paramedicine and law), and the blog would be of much less value, if I did not report cases such as this.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent has a question regarding the presumptive cancer legislation – that is legislation that provides that firefighters who develop various listed cancers are presumed to have developed the cancer as a result of their firefighting duties. This entitles them to workers compensation (even for volunteers) without the need to lead evidence to establish the link between their work and their disease. The question is:

What does iCare need to do to meet the test that “the contrary is established” under s10A(1) Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 to overcome the presumption that certain cancers are caused by a person’s firefighting activities? In particular, would it be enough for the insurer to lead evidence that there is some other likely cause of a person’s cancer, or is it necessary to lead specific evidence that firefighting was not the cause?

This is perhaps more relevant for s10A(1)(b) contributing factors – can the insurer simply rely on another cause having been identified? Or is it reasonable for a member to assert, despite something else being identified as the cause of and contributing to the cancer, that firefighting was also a contributing factor (based on the presumption) if the evidence doesn’t explicitly preclude it?

If we’re talking about iCare and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 then we’re talking about volunteer firefighters in NSW.   Section 10A(1) says:

(1)            In the application of this Act to an eligible volunteer firefighter, it is presumed (unless the contrary is established) that:

(a)            the disease contracted by the worker was contracted in the course of fighting a bush fire, and

(b)           the fighting of the bush fire was a contributing factor to the disease.

That section picks up the language used in s 7 ‘Injuries to Which Part Applies’.  Section 7 says that the Act applies to personal injuries and also to a disease:

… which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor.’

Subsections (1) and (2) refer to firefighting, travelling to a fire, or carrying out associated operation work.  It is unlikely that an single fire can be identified as the cause of a cancer so s 10A(2) goes onto say that the section applies to a person who has been a firefighter for the ‘qualifying service period’ and who has ‘at any time performed firefighting activities’. If those criteria are met then the disease is presumed to have been caused by ‘a’ fire thereby making them eligible for compensation under s 7.

In summary, s 7 says that Act applies to a disease that is contracted when performing various firefighting duties and where those duties have contributed to the development of the disease. Section 10A then says that if the disease is one of the cancers listed in Schedule 4 to the Workers Compensation Act 1987 (NSW) then it is presumed that the requirements in s 7 have been met that is the disease was contracted whilst firefighting and firefighting was a contributing factor.

The words ‘unless the contrary is established’, however, shows that it is a rebuttable presumption. The insurer could lead evidence to show that in a particular case the cancer was not contracted whilst firefighting or that firefighting was not a contributing factor.  For example, if it could be shown that the firefighter had received the diagnosis before they commenced their firefighting duties.

The burden of proof in a civil case is ‘on the balance of probabilities’ (Evidence Act 1995 (NSW) s 140).  In Briginshaw v Briginshaw [1938] HCA 34 Dixon J said (emphasis added):

,,, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

That case was about allegations of adultery and has been raised in other case where allegations of series misconduct are made so that is not analogous to the sort of case we’re discussing but the principle remains – the tribunal must be positively satisfied as to the allegation, in this case that the cancer was not caused by firefighting, and given the consequences the tribunal could not be satisfied ‘by inexact proofs, indefinite testimony, or indirect inferences’.  

Discussion

At first blush the section doesn’t make sense. It is a presumption –it is clear that the cancer is not contracted ‘in the course of fighting a bush fire’ nor is it possible to show that ‘the fighting of the bush fire … [was] a contributing factor to the disease’.  That is, it’s not about a fire. Of course, an insurer could bring evidence to show that it is unlikely that any single fire was the cause of the cancer, hence the need for presumptive legislation.

The section only makes sense if it is read, in context, as if it says:

(1)            In the application of this Act to an eligible volunteer firefighter, it is presumed (unless the contrary is established) that:

(a)            the disease contracted by the worker in the course of fighting bush fires over the qualifying service period and

(b)           the fighting of the bush fires over the qualifying service period was a contributing factor to the disease.

Read like that it would be open to an insurer to establish the contrary – that is it was not the applicant’s firefighting that gave rise to or contributed to their cancer. (Or, to quote WorkSafe Victoria on their discussion of the relevant legislation in that state – ‘The presumption applies unless it can be established that the cancer was not caused by their service’).

An insurer who wanted to prove that the disease was not contracted in the course of their firefighting service or that firefighting was not a contributing factor to the disease would face the same sort of problems most applicants, in the absence of presumptive legislation would face. They would have to bring expert evidence to satisfy the tribunal that firefighting did not contribute to the development of the cancer. It’s hard to imagine what evidence could be that categorical but of course I’m not an oncology expert and there may be cases where that can be shown.

In other disease cases, i.e. diseases not covered by presumptive legislation, the applicant has to prove that their ‘employment was the main contributing factor to contracting the disease’ (Workers Compensation Act 1987 (NSW) s 4, definition of ‘disease injury’; emphasis added).  Under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) the firefighting need only be ‘a contributing factor’ (s 7(3)).  If firefighting contributed to the development of the cancer, even if there are other causes, the presumption would not be displaced so even if an insurer could show that a volunteer firefighter was exposed to carcinogens at work that would not displace the presumption that their volunteer firefighting was ‘a’ contributing factor to their illness.

Conclusion

The presumptive cancer legislation was designed to get around difficulties of proof and certainly difficulties of proving that a single fire caused a person to develop cancer. If the presumption is to be rebutted it would not be enough for the insurer to lead evidence that there is some other likely cause of a person’s cancer.  The firefighting need only be ‘a’ contributing factor. They would need evidence to establish that it is more likely than not that the firefighting did not contribute to their cancer; that the cancer is unrelated to the volunteer’s firefighting duties. Mere exposure to other possible carcinogens would not be sufficient given the low threshold in s 7(3) of the Act.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

That’s right, I’m taking a break. I will be away from 5 April to 22 May. I won’t say that there will be nothing appearing during that time, I’ll have my computer with me and I may write something but you can expect less frequent and less timely posts. If you have a burning question send it now and I’ll try to get something out before I go. If you send it later I’ll get to it, but it may not be until my return.

Thank you for your understanding and I look forward to continuing the conversation on my return.

Michael Eburn

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

The Public Service Act 2008 (Qld) s 120 provides that a public servant who has been seconded from their substantive position to a higher position can apply to be permanently appointed to that higher job. 

Ms Dyson had been acting at a higher level as an OIC at the Roma Street Ambulance Station for at least 1 year as required by s 120 (in fact she’d been doing the job for 4.5 years (see [29]). She applied for a permanent appointment to that position. The Ambulance Service declined the request on the basis of the ‘the genuine operational requirements of the agency’ ([1]-[4]).

Ms Dyson appealed against that decision in Dyson v State of Queensland (Queensland Health) [2024] QIRC 61 (07 March 2024). The role of the Industrial Relations Commission was to review the decision made, not to make its own judgment on the merits of the application ([6]).  At [7] Commissioner Power said:

The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision by Mr Hill to deny conversion of the Appellant’s employment to permanent was fair and reasonable in all of the circumstances.

To answer that question the Commission had to look at the reasons given by the decision maker, Mr Hill. Ms Dyson argued that the reason given for the refusal to appoint her was that the QAS was going to, but had not yet, introduced a new process to recruit frontline managerial staff. She argued that whatever plans QAS may have that did not diminish her statutory right to seek appointment now (see [13]-[16]).

Before the Commission the QAS sought to rely on reasons other than those communicated to Ms Dyson when they refused the application. In short they argued that the substantive position holder would be returning to the position and the position was not, therefore vacant.  At [17] the QAS accepted:

… that there were deficiencies in its correspondence to the Appellant, specifically in respect of its advice as to the genuine operational requirements that prevented the Appellant from being appoint to the position.

The QAS now seeks to outline those genuine operational requirements in these submissions.

Remembering that the role of the Commission was to review the decision of Mr Hill, not to decide whether Ms Dyson should or should not be appointed, Commissioner Power said (at [42]):

The difficulty with considering the ‘genuine operational requirements’ relied upon by the decision maker in this matter to deny conversion to permanency in the higher classification role is that the reasons given in the decision are entirely different to those outlined in the Respondent’s submissions.

At [45]-[46] Commissioner Power said:

The decision clearly stated that the reason the Appellant was not permanently appointed to the higher classification position was due to the adoption of the FMR [Frontline Management Recruitment] process. As the role in which the Appellant was temporarily placed was one of the regional frontline manager roles, it was determined that permanent appointment would be facilitated through the FMR process ‘for the foreseeable future.’

The adoption of a new recruitment process is not a genuine operational requirement that may be relied upon to deny conversion to a permanent higher duties position in circumstances where the employee otherwise satisfies the statutory criteria. Section 120 of the Act and the Directive are intended to facilitate conversion for employees who have been temporarily employed at a higher classification. The adoption of a new process may allow recruitment to particular positions to operate alongside the conversion process, but it is not a replacement for the conversion process. To deny conversion on the basis of the development of an agency recruitment process is contrary to the purpose of the relevant statutory instruments and cannot reasonably be considered a genuine operational requirement preventing conversion.

QAS argued that having now set out the operational reasons for the refusal there was little value in referring the matter back for further decision ([47]). The Commissioner disagreed. She said (at [48]-[52]):

The decision cannot be accepted as having set out relevant findings based on evidence if those findings were not in fact the reasons for the decision. The decision did not contain enough information, or it appears the correct information, for the Appellant to understand why the decision had been made to deny her appointment to the permanent position.

It is clear from the Respondent’s submissions that an entirely different reason existed for the decision to not convert the Appellant’s appointment. The Respondent’s submission was that the Appellant was not converted because the substantive position was held by Mr Lehane who was currently working in a higher duties role elsewhere in the QAS.

The position of the substantive position holder and the likelihood of his return were not mentioned in the decision. The only reference to the return of the substantive position holder to the role occurred in the Respondent’s submissions.

As noted by the Respondents, the refusal to convert an employee to a role in which there is an employee permanently employed and who is intending on returning to the role has generally been considered a genuine operational requirement that may prevent conversion of a temporary employee to that higher duties position. This is of course a general proposition that is dependent on the particular circumstances of each matter. The difficulty in this matter is that the return of the incumbent employee was not the reason provided to the Appellant. The Appellant should have been provided with the genuine reason that the conversion was denied.

The role of the Commission in public sector appeals is to determine if the decision made was fair and reasonable. It is not possible to conclude that the decision was fair and reasonable in this matter where the decision does not in fact convey the actual reason for the decision.

And at [53]:

… submissions [by QAS] cannot cure a decision that was made on the basis of reasons that were unfair and unreasonable. It is not in my view reasonable that entirely different reasons be relied upon in submissions to those which were provided to the Appellant at first instance. Where a written decision was provided, the Appellant was entitled to know the genuine reason that the conversion of her employment to the higher duties position was denied.

The Commission ordered that Ms Dyson’s application be returned to QAS to be reconsidered.

Discussion

This may be considered a limited victory. Ms Dyson won here because the reasons given by QAS were inconsistent with the Act. The fact that QAS is going to embark on a new recruitment process was no reason not to consider an application, that Ms Dyson was eligible to make, on its merits. But one might infer that when it is returned to QAS they are going to make the same decision – not to appoint her to the position that she has been acting in – but for the reasons given in the Commission.  There may be future challenges to that decision, particular given the discussion of whether the incumbent OIC will in fact ever return to that position (see [30]) but that will be for another day.

As it is it reminds decision makers of the need to understand and be clear about the basis of their decisions and to communicate that decision, lest they be set aside for procedural errors regardless of the merits of the decision (and see, also, Covid directions to QAS and QPS employees held to be unlawful (February 27, 2024)).  My philosophy is ‘say what you mean; and mean what you say’.  In this case the decision maker, at least according to the submissions, did not ‘say what they meant’ if they gave the wrong reasons; and they and QAS did not ‘mean what they said’ when they turned up to the Commission to say that the reasons given were not the real reason for the decision.  The process from first decision to now seems to represent an unsatisfactory outcome for everyone.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Under the Fair Work Act 2009 (Cth) s 65 an employee in one of the circumstances listed has the right to apply for flexible work arrangements. The listed circumstances are set out in s 65(1A). They are:

(aa)        the employee is pregnant;

(a)            the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(b)           the employee is a carer (within the meaning of the Carer Recognition Act 2010 );

(c)            the employee has a disability;

(d)           the employee is 55 or older;

(e)            the employee is experiencing family and domestic violence;

(f)             the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

Ms Farquharson is aged over 55 and an employee of CCL Label Australia, in South Australia.  Ms Farquharson is also a volunteer ambulance officer with the South Australian Ambulance Service (SAAS).  As a full time employee, she was only available to volunteer on weekends. She applied for flexible work arrangements to work longer days, but to only work Monday to Thursday and thereby have Friday to volunteer, and the weekends off. Her employer refused the request and Ms Farquharson took the matter to the Fair Work Commission – Farquharson v CCL Label Australia [2024] FWC 670 (15 March 2024). Her employer argued (at [14]) that:

… work for the South Australian Ambulance Service is not a “circumstance’ within the meaning of s 65(1A)[(aa)-(f)] of the FW Act. Accordingly, CCL Label submit that the request made by Ms Farquharson was not a request under s 65 of the FW Act. It submits that as applications … can only be made in relation to requests which fall within the meaning of s 65, the Commission has no jurisdiction to hear and determine the application.

Ms Farquharson argued (at [15]) that:

… her request is a request for a flexible working arrangement because she is above 55 years of age, and that her work with the Ambulance Service is for the public benefit.

The Commission agreed that an application had ‘to be “because of” one of the circumstances referred to in subsection (1A)’ ([21]). And, at [23] ‘Work with the Ambulance Service, whether administrative or providing medical assistance, does not fall within any of those categories, no matter how laudable or in the public interest.’ Ms Farquharson argued that her application was because she was over 55 and she wanted to manage her work/life balance as she approached retirement ([25]).

Deputy President Anderson held (at [27]-[28]):

According to the application, Ms Farquharson is doing so because at her age she seeks a better reconciliation between paid employment, work for the Ambulance Service and leisure time. That is, she is seeking a four-day working week with the respondent so that the remaining weekday can be available to work for the Ambulance Service and a two-day weekend remain available to her. Whatever their merit, these propositions appear consistent with the basis on which the request was first made at the workplace level and continues to be advanced.

Leaving aside merit, I am satisfied that there is a sufficient connection between the request and the fact that Ms Farquharson is 55 years or older. I am satisfied that the change has been requested “because of” one of the circumstances set out in s 65(1A). The required connection between the request and a defined statutory circumstance exists.

The Deputy President ordered that the matter be relisted to be determined on its merits.

Discussion

The comment by the Deputy President that he was making the decision ‘Whatever their merit’ and he was ‘Leaving aside merit’ is no suggestion that he thought the claim was without merit; in fact, the opposite. This was an application to resolve the matter of jurisdiction alone. The Deputy President was not there to decide the merits of the claim and would not want to make any announcement that might be thought to affect the further hearing of the matter. His comments are to say that no-one should think the Commission has yet determined whether the application should or should not be granted; that is for another day.

The Fair Work Act covers most (but not all) employees. The right to request flexible working arrangements as one approaches retirement is significant.  Readers of this blog will likely think that Ms Farquharson’s desire to reduce work but still volunteer, but then have more time doing neither is both understandable and commendable. 

Conclusion

It will be interesting to see the final outcome of this matter as it may have implications for many emergency service volunteers who are over 55 and who, because of that, want to continue to volunteer and who therefore want to adjust their work/volunteer/leisure mix.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent is

… currently serving as an ambulance paramedic in Western Australia and have encountered a dilemma related to our professional duties when dealing with violent or aggressive individuals, or those experiencing severe mental health crises.

This issue arises from a recent policy shift by the WA Police, who now decline to accompany us to incidents involving individuals with a violent or aggressive history or current behaviour. Instead, we are tasked to conduct an “on-site risk assessment” and communicate the situation to the police, who will then decide whether their presence is necessary. Unfortunately, this has led to situations where paramedics have faced assault after police determined the reported risk did not warrant their attendance. Following such incidents, our ambulance service has implemented a new guideline stating that if the assessment by the paramedic team and a supervising paramedic deems the situation unsafe and the police decide not to respond, we are to withdraw from the scene.

This change prompts me to question whether our decision to not engage or to withdraw from a scene, based on our safety assessment, could impact our paramedic registration. Historically, we would wait for police assistance, but this new approach seems to conflict with our obligation to prioritize patient welfare, as mandated by AHPRA. Furthermore, we face a conundrum when encountering patients with mental health issues who are a danger to themselves or others but do not qualify for police intervention. Given that paramedics in WA do not have the authority to detain or transport these individuals involuntarily in the absence of police support, does this mean we must leave them unattended?

This situation appears to contradict our duties under AHPRA registration. These policy changes have led to significant concern and unease among me and my peers. Your thoughts on these matters would be immensely valuable.

It’s true that WA paramedics do not have the power to detain a person who is mentally ill, competent and refusing treatment, hat power is vested in WA Police – see Detaining the non-compliant in WA (July 21, 2019), see also Mental Health Act 2014 (WA) s 156.

The First Principle of the Shared Code of Conduct, that has been adopted by the Paramedicine Board, is

Put patients first – Safe, effective and collaborative practice

Principle 1 – Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes.

As part of that principle the Code of Conduct tells us that good practice involves assessing ‘the patient, taking into account their history, views and an appropriate physical examination where relevant’ ([1.1](a)).  Decisions about access to care require you to ‘treat patients with respect at all times’ ([1.3(a)) and:

 keep yourself and others safe when caring for patients. While you should act to protect yourself, your colleagues and staff, if a patient poses a risk to health or safety, the patient should not be denied care if reasonable steps can be taken to keep yourself and others safe’ ([1.3](e)).

Good practice in an emergency requires that you ‘should offer assistance in an emergency that takes account of factors such as your own safety…’ ([1.4]).

Whilst you have to avoid or manage conflicts of interest ([8.10]) that is talking about business and personal conflicts not conflicts between patient care and your own safety.

It cannot be the case that the rule ‘Put patients first’ is at all costs to the paramedic. Paramedics do not have to take the homeless home, or spend their money buying meals or drugs for the poor, buy train or plane tickets for those away from home etc.  Their professional duty is to prioritize ‘the best possible patient outcomes’ within reason and within the limits of their practice.

There is clearly no obligation on paramedics or other health care professionals to run unreasonable risks thought we accept and expect paramedics to do things that others would consider too risky eg working at accident sites, being winched into and out of helicopters, being exposed to trauma that carries a risk of long-term mental health issues.  It cannot be said that paramedics don’t take risks to ‘put patients first’.  Paramedics (and police, and firefighters) sign up to a high risk environment but what is an acceptable risk is a different matter. The sort of risks that are part and parcel of the job are to a greater or lesser extent managed by training, equipment and the ability to impose control on the environment.

Where a patient is mentally ill or aggressive it is an uncontrolled environment and, as noted, the agency with the authority to impose some control is WA Police, not St John Ambulance (WA).  

The critical paragraph in the Code of Conduct is [1.3](e): ‘if a patient poses a risk to health or safety, the patient should not be denied care if reasonable steps can be taken to keep yourself and others safe’  What are ‘reasonable steps’ will depend on the circumstances. It may mean staying back for the patient and trying to talk them down. It may mean calling police or trying to connect with other health services, family or friends to see if they can persuade the person to accept care.

Police can intervene when the person has committed an offence (s 157) or (s 156) if:

… the officer reasonably suspects that the person —

(a) has a mental illness; and

(b) because of the mental illness, needs to be apprehended to —

(i) protect the health or safety of the person or the safety of another person; or

(ii) prevent the person causing, or continuing to cause, serious damage to property.

I therefore do not understand how a person ‘with mental health issues who [is] a danger to themselves or others … [does] not qualify for police intervention’.  If the police don’t think the criteria in s 156 are met, and the patient is competent and refuses treatment and care, then yes there is nothing a paramedic can do.  You don’t have to ensure everyone gets good care and you must leave them unattended in the same way you have to leave unattended a person who you think is having a cardiac issue, or who has a fractured limb, but who refuses treatment.  Good care is predicated on consent and there is not only no obligation, there is no authority, to render treatment to a patient, no matter how much it is in their interest, if they refuse consent – and the presence of a mental illness does not automatically mean the patient cannot give or refuse consent.

If the patient is not competent then reasonable care can be given that is in their patient’s best interests but that still does not require you expose yourself to unreasonable risks to your own safety.

Conclusion

A ‘decision to not engage or to withdraw from a scene, based on our safety assessment’ could not impact paramedic registration provided it is done on the basis of a good faith assessment. Simply refusing to go to the scene without an assessment may be problematic as may a decision to simply leave without considering ‘if reasonable steps can be taken to keep yourself and others safe’ and provide some level of care even if that is not ideal care.  If the patient is being belligerent simply walking away saying ‘&*%*( you I’m out of here’ is not good care.  Stopping, even if a distance away, and thinking ‘is there something I can do? Is there someone else I can call?’ maybe the best care you can provide.

At some point if the patient appears to be competent and refuses treatment there is nothing you can do. 

Your duty as a paramedic is to provide patient centred care. It is not a duty to solve all the patient’s problems nor is it a duty to do things you do not have lawful authority to do.  And you cannot treat a competent patient without their consent.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

The two cases, discussed below, were both decided at the end of February and dealt with urgent applications for orders to terminate planned industrial action by the Health Services Union. The Industrial action either has, or would have, already come and gone but it is, I hope, still worth reporting on them.

The first case is Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2024] NSWIRComm 1014 (27 February 2024) (Commissioner O’Sullivan). In this case the Ambulance Service sought orders to terminate planned stop work meetings that were scheduled for        7am on 28 February.  The proposed impact was (at [5]):

… that those members of the Respondent union who are rostered to work will not attend to incidents which are said to be or prioritised as priority 2A and priority 2B. There is also evidence before the Commission that it would extend to other incidents to be booked into the ambulance officers’ CAD system, which are referred to as categories R3, R4, R5, R6 and R7.

The Ambulance service argued that orders should be made to prohibit the to avoid ‘a delay to members of the public seeking … assistance’ ([8]). The service gave examples of delays during other stop work meetings and a case example of a person whose condition got demonstrably worse during the delay ([8]-[10]).

The union referred to an Ambulance Service work instruction that indicated that a response to a 2A or 2B case was considered delayed if it was longer than 120 minutes.  At [14]:

The [Union’s] submission was that effectively an inference can be drawn that if the work instruction provided that if there was no need for a report or action to be taken by the supervisors for a delay in respect of 2A and 2B of up to 120 minutes, then, in circumstances where the meeting only takes place in 60 minutes, then it is not a delayed response and it cannot fall into the category of a response that would attract the public interest and, therefore, the granting of the orders.

The Commission refused to make the orders sought by the Ambulance Service. Commissioner O’Sullivan said (at [17]).

I am not satisfied, in the circumstances, that the granting of the orders would be in the public interest. In reaching this conclusion I note that during 2023 there were 24 stop work meetings held by the Respondent. Following from those 24 stop work meetings, I note that at no stage there was there any evidence that the Notifier had raised any concerns with the Respondent union.

Two days later the parties were back before Commissioner O’Sullivan in Health Secretary in respect of NSW Ambulance v Health Services Union NSW [2024] NSWIRComm 1016 (29 February 2024). This was again an application by the Ambulance Service to prohibit further industrial action that had been agreed to at the meetings held on 28 February and the subject of the decisions discussed above.

The dispute involved the ambulance rosters and the practice of requiring ambulance officers to relocate to another station to create a two-person crew rather than filling vacancies with casual or overtime staff.  At [8] the union led evidence that:

…

b) Where absences aren’t required to be backfilled, there will inevitably be less crews on the road due to absences. Less crews on the road mean that there are less paramedics to respond to jobs. This will naturally lead to a lower level of coverage for the community, and potentially delays or adverse patient outcomes.

c)   Less crews on the road naturally means that existing crews will have to respond to more jobs. This results in a lower likelihood of those crews being able to take their crib break entitlements. This also results in a higher likelihood of those crews being required to perform end of shift overtime. In my experience, this greatly contributes to fatigue and negatively affects paramedic welfare…

The members of the HSU had proposed ‘a ban on the movement from the station they are rostered on at to another station, to work a shift or part of a shift’ ([9]).  Members of the HSU would agree to move to the other station if (at [10]) the ambulance service ‘has been able to fill that gap at the other station through a particular means, be it by use of part time casuals, or in the alternative, if there has been proof that the role has been open to persons to pick up through the manner of overtime for a period of one hour’.  The Commissioner said (at [11]):

In those circumstances, the evidence of Mr McKenna and questioning by myself was that that adds another layer to the filling of the gap at any particular station which has the potential to delay the delivery of services by NSW Ambulance to patients. In particular, Mr McKenna noted in his evidence that this same form of ban had been in place in the Mid North Coast for some time and he gave the following four specific examples of where there had been a delay occasioned, which he alleges are a direct result of the imposition of the bans…

The Commission reiterated(at [13]) that it should be slow to make dispute orders (see More NSW Ambulance industrial action before the Industrial Relations Commission (August 22, 2023) and NSW Patient Transport Service industrial action (August 23, 2023)).  At [14]-[16] Commissioner O’Sullivan said:

The submission of the NSW Ambulance is that … it is in the public interest that the orders are made. It was submitted, that the effect of not making the orders is the potential, as evidenced by those four examples set out earlier in the decision, that the bans create a risk to the health, safety and wellbeing of patients.

The Commission was moved by four specific examples ([11]) which demonstrated the impact of the bans on the delivery of time critical care.  The Commission made orders requiring the HSU to cease the industrial action and to communicate the effect of the orders to the union membership. The orders are to remain in place until 5:30pm on 29 May 2024.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today we return to the Mental Health Act 2007 (NSW) at the request of ‘… a Registered Nurse working in a rural Emergency Department…’   I’m asked:

• If we are not a ‘declared’ ED or MH facility, does section 20 or 22 stand at all? Or is it null and void given we are not a ‘declared’ facility?
• If a patient is transported under a section 20 or 22, how long is that enforceable by the hospital for? If at all?
• Once the patient is seen by a medical doctor in our rural facility, does that the null and void the section 20/22?

There is often a lot of confusion regarding this, and we are accepting patients transported under section 20/22 due to geographical isolation and the closest declared MH and ED facilities being around 4 hours away. It is often hard to know how ‘detainable’ someone is given we have no appropriate facilities for mental health patients. 

It’s true that the Mental Health Act is not a exemplar of clarity. The answers below depend on an implied power to detain a person in a health facility pending their transfer to a prescribed mental health facility. That the power is implied, rather than express, is another deficit in the drafting of this important Act.

The Act

The Mental Health Act 2007 (NSW) s 20 says that an ambulance officer may transport a person to ‘a declared mental health facility’ if the person appears to be mentally ill or mentally disordered and ‘it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’ Section 22 provides similar powers to police.

A ‘declared mental health facility’ is premises that have been declared for the purposes of the Act under s 109.  Details of what it means to be a declared mental health facility are available on the Department of Health website – Declared mental health facilities – Consumers (nsw.gov.au)

Section 18 of the Act allows the staff of a declared mental health facility to detain a person who is brought to the facility by an ambulance officer acting under s 20, a police officer acting under s 22 or a person who is the subject of a certificate completed by a doctor under s 19.

Section 18(2) says:

A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition.

In a rural emergency department that means they can detain a person who is mentally ill or mentally disordered if they need to hold them whilst they treat their other injuries. For example, a person who is mentally ill and who has harmed themselves can be detained in a general hospital whilst their injuries are attended to. 

Section 25 says:

(1) A person may be transferred from a health facility to a declared mental health facility and detained in the mental health facility if a medical officer of the health facility, or the authorised medical officer of the mental health facility, considers the person to be a mentally ill person or a mentally disordered person.

(2) Any such person is taken to have been detained in the declared mental health facility under section 19 when the person is transferred to the facility.

The questions asked

To answer the questions asked:

• If we are not a ‘declared’ ED or MH facility, does section 20 or 22 stand at all? Or is it null and void given we are not a ‘declared’ facility?

If an ambulance officer or police officer has detained the patient, they can take them to the local ED to ensure that there are no other injuries that need attending to. The paramedics may also be unsure whether the person is mentally ill or mentally disordered so seek a doctor’s opinion on the subject.  Sections 20 and 22 do not give the staff at a non-declared facility the power to detain a patient so their ongoing detention must be on the authority of the ambulance officers or police officers.

If a medical practitioner examines the patient and forms (s 19):

… (b) the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary …

Then that practitioner may arrange for the patient’s transfer to a mental health facility (s 25). Section 81 provides that:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

may transport the person to a declared mental health facility.  There must be an implied power to detain the person whilst arrangements are made for the patient’s transfer.

• If a patient is transported under a section 20 or 22, how long is that enforceable by the hospital for? If at all?

There has to be an allowance of a ‘reasonable time’ for a doctor to examine the patient (either personally or by video conference (s 19A).  I would also infer that, unlike at a declared facility, the ambulance or police officers would have to stay on site as the person is being ‘detained’ under their authority. From the perspective of the ambulance and police officers the local ED is merely a stop en route to the declared mental health facility, rather than the destination.

• Once the patient is seen by a medical doctor in our rural facility, does that the null and void the section 20/22?

Yes, once the person has been examined by a doctor their ongoing detention, if justified, would be authorised by ss 18(2), 19 or 25. 

Where the medical practitioner forms the view that the person is mentally ill or mentally disordered and should be detained under the Act, but before that can happen their other conditions or injuries need to be treated, then the person can be detained under s 18(2).

If there are no other conditions or illnesses, then the detention would be justified under ss 19 and/or 25.  The detention would have to be for no more than a ‘reasonable’ time to arrange for the patient’s transfer to a declared mental health.

Conclusion

People are to be detained in a declared mental health facility because (we hope) they have ‘appropriate facilities for mental health patients’ and can provide the specialist care that they need. A local emergency department will have an important role to play.  Where an ambulance officer or police officer has detained a person, they may want to take them to the local ED to make sure there are no other conditions or illnesses that need treating or to get a second opinion on the patient’s condition.  Whilst at the ED a doctor may examine the patient and determine that they are mentally ill or mentally disordered and issue a certificate under s 19 or arrange their transfer under s 25. Either way that would authorise further detention by the health service whilst arrangements are put in place to transfer the patient.

The staff of a local ED must be able to detain a patient under the Mental Health Act but only as part of the process of transferring them to a declared mental health facility or to treat any other illness or injury. It cannot be for the purpose of providing ongoing, involuntary treatment of their mental illness.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today I’m asked if there are

… any AHPRA type consequences for a doctor signing an undertaking for family violence in Vic. Is it self-reportable or mandatory reportable if an employer found out?

Victorian Legal Aid has this to say about family violence intervention orders:

A family violence intervention order is a court order that aims to protect a person from someone who has used family violence. An intervention order can also protect children, property or people supporting the protected person.

With respect to undertakings and family violence they say:

Option 2 – Agree to an undertaking instead of an order

Sometimes an applicant may accept an undertaking. An undertaking is a formal written promise to the person who needs protecting and to the magistrate that you will follow certain rules.

If you break the rules of an undertaking, you can’t be charged by the police unless you have committed an offence, but the applicant can bring their application for an intervention order back to court. Breaking the rules of an undertaking makes it more likely that an intervention order will be made against you, as you did not keep your promise to the applicant or the court. The court takes this very seriously. You can only give an undertaking if the applicant agrees to accept it. The applicant does not have to accept an undertaking. It’s their choice.

See also National Domestic and Family Violence Bench Book on Undertakings.

A court can make a Family Violence Intervention Order ‘if the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again’ (Family Violence Protection Act 2008 (Vic) s 74).  Making of an order is a civl not a criminal order (see s 96(1)(e)).  Withdrawing the application and accepting an undertaking is even more clearly not a conviction of a criminal offence.

The Health Practitioner National Law defines ‘notifiable conduct’ (s 140) as

(a)       practising the practitioner’s profession while intoxicated by alcohol or drugs; or

(b)       engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c)       placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d)       placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

Other practitioners and employers are required to report instances of notifiable conduct (ss 141 and 142).  Assuming the victim is not a patient, then the allegation of family violence is not ‘notifiable conduct’ unless the circumstances suggest that the doctor has an ‘impairment’.

A practitioner can make a voluntary notification that another practitioner ‘… is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession’ (s 144(1)(c)).  One might think that the circumstances go to the practitioners fitness to hold registration.

The Health Practitioner National Law s 5 defines criminal history as

(a)       every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;

(b)       every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;

(c)       every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.

A registered practitioner is required to notify AHPRA (the Australian Health Practitioner Regulation Agency) if they are charged with ‘an offence punishable by 12 months imprisonment or more’ (s 130(3)(a)(ii)).  Being named as a respondent to an application for an intervention order is not the same as being charged with a criminal offence.

Even if it could be argued that a finding by a court that a doctor ‘on the balance of probabilities, … has committed family violence against the affected family member and is likely to continue to do so or do so again’ is a ‘finding of guilt’ (sub-paragraph (b) above) that cannot be true if the application is withdrawn even if it is only withdrawn on the basis that an undertaking is given.  If the matter is withdrawn the court will make no finding.

Conclusion

A doctor who is the respondent to a Family Violence Intervention Order is not required to report that to AHPRA (s 130) nor is the doctor’s colleagues required to report it as it is not a notifiable event (ss 141 and 142). Another practitioner may make a voluntary disclosure if he or she believes the circumstances suggest that the respondent doctor is no longer a fit and proper person to be registered as a medical practitioner (s 144) and that could be true even if the application is withdrawn on the basis of an undertaking.

The doctor would be required to report to AHPRA if he or she was also charged with an offence (eg assault, which carries a maximum penalty of 5 years imprisonment (Crimes Act 1958 (Vic) s 31)).  That would be true even if the criminal charges are withdrawn and the application for the order is resolved by an undertaking.

Any doctor who is the respondent to an application for a Family Violence Intervention Order would be well advised to consult their solicitor or medical defence organisation very early in the process to get advice on how the different outcomes might affect them on whether the making of the order might affect their fitness to practice, and whether they should raise it with AHPRA.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent was wondering:

… how interstate FIRE services like the RFS can respond code one in VICTORIA and use road rule, 306. I assume there’s something in the CFA act, that classes them as an emergency vehicle under the control of the country, FIRE authority, and so on.

The relevant provision is in the Road Safety Road Rules 2017 (Vic) not the Country Fire Authority Act 1958 (Vic). Section 306 of the Road Safety Road Rules says:

A provision of these Rules does not apply to the driver of an emergency vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

The critical question is, therefore, what does it mean to be the ‘driver of an emergency vehicle’ in Victoria. An emergency vehicle in Victoria includes ‘a vehicle operated by or on behalf of and under the control of— … (iii) a fire service established by, or appointed under, a law in force in another State or in a Territory of the Commonwealth’ (Road Safety Road Rules 2017 (Vic), Dictionary, definition of ‘emergency vehicle’.)

The NSW Rural Fire Service is ‘a fire service established by …  a law in force in another State’ so the driver enjoys, whilst in Victoria, the same exemptions as those enjoyed by the CFA and Fire Rescue Victoria.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent asks about the:

… precedence of laws regarding National Heavy Vehicle Work Diary and Record Keeping requirements in Queensland.

The Federal Register of Legislation contains a ‘National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) [https://www.legislation.gov.au/C2023G00112/asmade/text] that is different to the provisions in the Heavy Vehicle National Law Queensland, specifically s265 & s356.

My question is “does the federal Exemption Notice take precedence over the Queensland Act and Law?”

The Australian Constitution s 109

The answer is more complex than one might think. The Australian Constitution, s 109 says that where there is a valid commonwealth law and an inconsistent valid state law, the Commonwealth law applies. The laws are inconsistent if it is impossible to comply with both or where the Commonwealth law clearly intends to ‘cover the field’ so that there is no room for the State law to be applied.  On its face that would suggest that if there is an inconsistency between a federal notice and the Queensland Act, the federal notice must prevail.

But before we can come to that conclusion, we need to understand the nature of the National Heavy Vehicle law. Many ‘national’ laws are not in fact national, they are examples of cooperative federalism where the states and territories all agree to pass the same law to create a national scheme, but the law is actually unique to each state and territory. The Health Practitioner Regulation National Law is such a scheme.  

The legal status of the Heavy Vehicle National Law Act 2012 (Qld)

The website of the National Heavy Vehicle Regulator says:

The HVNL commenced on 10 February 2014 in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria. Each of them passed a law that either adopts or duplicates the HVNL (with some modifications) as a law of that state or territory…

*The HVNL is the schedule to the Heavy Vehicle National Law Act 2012 (Qld).

This Queensland Act adopts the law set out in the schedule to the Act (s 42B) as a law of the state (s 4). The body of the Act then makes specific provisions for Queensland. The Queensland Parliament can review and disallow national regulations as if those regulations had been made in Queensland. The Queensland Governor can make regulations applicable in Queensland and can modify national regulations as they are to be applied in Queensland.

That the scheme is an example of cooperative federalism, rather than federal or national law is also evident by the Heavy Vehicle National Law Application Act 2013 (Vic) s 4. That Act, rather than setting out the law as it applies in Victoria, adopts the law set out in the Queensland Act as a law of Victoria.

Because the Heavy Vehicle National Law is not a law of the Commonwealth s 109 of the Constitution will be irrelevant.

The national heavy vehicle regulator

The national heavy vehicle regulator is established by s 662. The Regulator is given the power to make exemptions by publishing a notice in the Commonwealth Government Gazette.  Notices published in the Government Gazette are hosted on the Federal Register of Legislation even though the relevant Act is not a federal Act.

The National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No.2) was published on 30 January 2023. It is made by the regulator acting under s 357 – Regulator’s power to exempt particular drivers from work diary requirements and s 378 – Regulator’s power to exempt record keepers from fatigue record keeping requirements by the regulator.

The notice says:

7.             Application – class of work, participating jurisdictions, and eligible persons

1)             This Notice applies to the driver and the driver’s record keeper of a fatigue regulated heavy vehicle that is being used to perform an emergency management activity for, or under the direction of, an emergency service.

2)             This Notice applies in all participating jurisdictions.

3)             A driver to whom this Notice applies in an eligible driver.

4)             A record keeper to whom this Notice applies is an eligible record keeper.

8.             Exemption – work diary requirements

1)             Pursuant to section 2(1) of this Notice, an eligible driver is exempt from complying with subdivisions 1 to 5 of Division 2 of Part 6.4 of the HVNL.

2)             The exemption in 1) only applies to the extent that an eligible driver complies with the work record management system of the emergency service for which the relevant work is being performed.

9.             Exemption – record keeper requirements

1)             Pursuant to section 2(2) of this Notice, an eligible record keeper is exempt from complying with Division 3 of Part 6.4 of the HVNL.

2)             The exemption in 1) only applies to the extent that an eligible record keeper complies with the work record management system of the emergency service for which the relevant work is being performed.

The exemption under the National Law

Section 356 of the Heavy Vehicle National Law says:

Emergency services exemption

(1)            A person who is acting for an emergency service and who has time-critical duties on the way to, or during, an emergency is exempted in the course of carrying out the duties from compliance with Division 2 [of Part 6.4, Work Diary Requirements].

(2)            A person who is acting for an emergency service and who is returning from attending an emergency is exempted from compliance with Division 2 if the person reasonably believes the noncompliance does not present an unreasonable danger to other road users.

(3)            A person who is acting for an emergency service is exempted from compliance with Division 2 under subsection (1) or (2) only if, at the relevant time, the person complies with any guidelines regarding the management of fatigue issued by or on behalf of the emergency service or an authority responsible for oversight of the emergency service.

(4)            In this section—

emergency means an event, or an anticipated event, that—

(a)            endangers, or may endanger, life, property or the environment; or

(b)           has disrupted, or may disrupt, communications, energy supply, water supply or sewerage services; or

(c)            is declared to be an emergency or disaster by—

(i)             the Commonwealth or a State or Territory; or

(ii)            a Commonwealth or State or Territory authority responsible for managing responses to emergencies or disasters.

Examples of an emergency—

fire, explosion or natural disaster

emergency service means an entity that has a statutory responsibility to respond to an emergency and includes the following—

(a)            an ambulance service;

(b)           a fire brigade, including a volunteer fire brigade;

(c)            a police force or police service;

(d)           a disaster or emergency organisation of the Commonwealth or a State or Territory.

Section 265 is in similar terms and applies to Part 6.3 Duties Relating to Fatigue.

Are the provisions inconsistent?

Section 265 of the National Law is not inconsistent with the Regulator’s notice. Section 265 is an exemption from the requirements relating to work and rest time (ie Part 6.3). The regulator’s notice is an exemption from the need to keep a diary to record the driver’s work and rest times (Part 6.4).  In short one is an exemption from the need to take a rest, the other is an exemption from the need to keep a record about driving and resting. They are not covering the same subject area so there is no inconsistency.

Section 356 is an exemption from the need to keep a work diary. This is the same subject area as the regulator’s notice. Section 356 applies to ‘A person who is acting for an emergency service…’ The regulator’s notice applies to ‘the driver and the driver’s record keeper of a fatigue regulated heavy vehicle that is being used to perform an emergency management activity for, or under the direction of, an emergency service.’

It is unclear what is the intended difference between a person is ‘acting for’ an emergency service and a person who driving a vehicle ‘that is being used to perform an emergency management activity for, or under the direction of, an emergency service’ but there must be a difference otherwise different words would not be used.

I would infer that the difference is in the relationship between the driver and the emergency service.  A member of the Queensland Fire and Emergency Service is driving the appliance ‘for’ QFES as QFES cannot drive it other than through its staff and volunteers.   A contractor eg the driver of a hired water tanker or a chartered bus is performing a task for or under the direction of the service (see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)).  If that interpretation is correct, then the regulator’s notice applies to a different class of drivers and expands the exemption beyond those who are part of the emergency services.

Section 9 is clearly an expansive provision extending the exemption to the relevant record keeper; an exemption that is not set out in s 356.  That is also consistent with the idea that the notice is extending the exemption outside the emergency services eg to companies that manage heavy vehicle operations and keep records for their drivers.

If there is no difference between driving ‘for’ and emergency service and driving a vehicle ‘that is being used to perform an emergency management activity for, or under the direction of, an emergency service’  then it is not clear what s 8 of the regulator’s notice adds, but it is also not clear that there is an inconsistency. One could argue that s 356(2) which applies to a driver returning from an emergency is wider than the exemption in the regulator’s notice so there could be a question how that applies, but I would expect that anyone would think that a vehicle is still engaged in an emergency management activity whilst it is returning to its base or has been released and is now being used for other work.

Further the regulator cannot amend the National Law. The regulator has the power to ‘exempt’ some drivers ‘from work diary requirements’ (s 357) and ‘to exempt record keepers from fatigue record keeping requirements’ (s 378). The regulator does not have the power to restrict the exemptions set out in the Act, in his case in s 356.  Accordingly, if the regulator’s notice is more narrow, or restrictive than s 356, then s 356 must prevail. If on the other hand, the regulator’s notice is (as I argue it is) more expansive and extending the exemption then both provisions can stand.

Conclusion

My reading is that the provisions are not inconsistent. The Act gives an exemption from Part 6.3 of the Act dealing with work and rest breaks.  The National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) has nothing to say about that so there is no inconsistency an s 265 can do the work it is there to do.

Both section 356 and the National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) deal with exemptions from the need to keep work diaries.  What work the Notice has to do is not clear, but I infer it extends the exemption from those working directly as part of the emergency services to the drivers of heavy vehicles, not normally part of the emergency services, but who have been engaged to provide services as part of the emergency management.

The specific question I was asked was “does the federal Exemption Notice take precedence over the Queensland Act and Law?”  The answer to that question is ‘no’ as the regulator’s notice is made under, or is authorised by, the Queensland law and so must be consistent with that law.  The power of the regulator is a power to exempt certain drivers from the provisions of the law, not to change the law.  If the regulator’s notice is more restrictive than the law, the law must prevail. If the notice is more expansive, extending the exemption, then there is no inconsistency and the regulator’s exemption will apply on its terms.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

In Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland [2024] QSC 2 (27 February 2024), a decision of Martin SJA in the Queensland Supreme Court, Queensland police and ambulance officers have successfully challenged directions that required them to be vaccinated against COVID-19.  

The court’s role was an exercise in judicial review, that is it was called upon to determine whether the directions were made according to law at the time that they were made. Not whether the decisions were fair to the applicants or the decision the court would have made. The court was reviewing the relevant decision maker’s decision, not substituting its own decision or what the judge would have done if he had been the relevant decision maker.  The ‘legal reasonableness’ or lawful validity of the decision had to be assessed at the time the decision was made and with the material then before the decision maker ([22]-[26]).

Queensland Police

With respect to the decision to make the directions, the applicants relied on the Human Rights Act 2019 (Qld) s 58 which is set out at [66]. The Act says:

(1) It is unlawful for a public entity—

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision…

(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights…

At [67] His Honour said:

Section 58(1) imposes two obligations on the respondent:

(a) Substantive: not to make a decision in a way that is incompatible with human rights: s 58(1)(a); and

(b) Procedural: not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b).

With respect to that procedural aspect, the Police Commissioner gave evidence as to the process she followed when making the directions – one, Direction No. 12 on 7 September 2021 and the second, Direction No. 14 on 14 December 2021 – and that she did give consideration to human rights. The judge was not impressed. At [94] he said:

Unfortunately, she [Police Commissioner Carroll] did not appear to have given her evidence much thought before she entered the witness box. Her recollection was poor and she seemed to be unfamiliar with some of the documents which were at the heart of the case.

The Commissioner had a number of documents that she claimed she had considered when making the Determination No. 12 but some of these were received, or written, after the decision had been made so clearly had not been considered at the time.  His Honour said (at [104]):

I find that the Commissioner is mistaken in her recollection and that she could not have considered HRCA No.1 [Human Rights Compatibility Assessment prepared by officers of the Crown Solicitor] before she made the decision to issue Direction No. 12 because she could not have received it before then. HRCA No. 1 contains a footnote referring to a document which was published by the Therapeutic Goods Administration on 2 September 2021. I draw from that that HRCA No. 1 could not have been created until, at the earliest, 2 September 2021. It follows, then, that she could not have complied with s 58(1)(b) with respect to Direction No. 12.

With respect to Direction No. 14 the Commissioner was unable to produce evidence of material she claimed to have relied on when considering the human rights impacts of the declarations. His Honour said (at [120]):

With respect to Direction No. 14, Deputy Commissioner Smith did not prepare any form of written memorandum for the Commissioner’s consideration. Nor, to his knowledge, did anyone else. He did, though, identify the material which he said the Commissioner relied upon in making Direction No. 14. But there was no evidence from the Commissioner as to the evidence upon which she relied.

And, at [127]:

Her evidence was that it was fair to say that she made her decision to issue Direction No. 14 somewhere between 7th and 10th December. That is, her decision was made at least four days before she received HRCA No. 2. It is more likely than not that the Commissioner did not consider the human rights ramifications of Direction No. 14.

At [134]-[137] and [139] His Honour said

The Commissioner’s evidence about whether she gave “proper consideration to a relevant human right in making [the] decision” to issue Direction No 14 was vague and inconclusive. Her evidence about the decision-making processes which led to Direction No 14 was consistent – she was reluctant to commit to having read particular documents, she frequently could not recall how she received information or what the information was, and she frequently evaded these issues by referring in a vague way to briefings, discussions, summaries and the like.

I am not satisfied that the Commissioner has demonstrated that she gave proper consideration to the human rights that might have been affected by her decisions. She could not have seen HRCA No. 1 before making the decision to issue Direction No. 12 and it is more likely than not that she did not receive HRCA No. 2 until after deciding to issue Direction No. 14. Her evidence about considering either HRCA No. 1 or HRCA No. 2 was, at best, inconclusive and, at worst, unreliable.

The Commissioner has failed to demonstrate that, before making either Direction No. 12 or Direction No. 14, she:

(a) understood in general terms which of the rights of the persons affected by the decisions might be relevant and how those rights would be interfered with by the decision;

(b) had seriously turned her mind to the possible impact of the decision on a person’s human rights;

(c) had identified the countervailing interests and obligations; and

(d) had balanced competing private and public interests as part of the exercise.

Further, I do not accept that the Commissioner had:

(a) either identified the human rights that might be affected by the decision; or

(b) considered whether the decision would be compatible with human rights.

…

It follows that, by failing to give proper consideration, the making of each of those decisions was unlawful.

Various other arguments to the effect that the Commissioner did not have the power to make the declarations and that she should have reviewed the decision at some later time and her failure to revoke the declaration was also subject to review, were considered but rejected.

Queensland Ambulance

The power of the police commissioner to issue the directions to the police officers was found in the Police Service Administration Act 1990 (Qld). It was argued that the Director General of Queensland Health had no similar power to direct QAS officers to undergo vaccination.  The Director-General argued the relevant power was foind in the common law power of an employer to give, and the common law duty of an employee to follow, lawful and reasonable directions. He also argued the power was found in the Ambulance Service Act 1991 (Qld) s 13 which is the power to impose conditions on QAS employees.

With respect to the common law power to issue directions, and the common law duty to obey them, His Honour, at [214] cited Dixon J in in R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Sullivan (1938) 60 CLR 601 who said:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.

That is a court could not determine if the direction was ‘reasonable’ without evidence of the employment terms and conditions eg any relevant award.  At [219] Martin SJA said:

The question of “reasonableness” arises in circumstances where I was not directed to any evidence which touched upon:

(a)            any established usages affecting the nature of the employment;

(b)           what, if any, common practices exist; or

(c)            the general provisions of the instrument governing the relationship of the employees covered.

And at [224]-[225]:

In the absence of any evidence about the nature and scope of the employment contract, the respondent cannot establish that the QAS Direction was reasonable.

As the respondent has not demonstrated that the QAS Direction was reasonable in the sense used in Darling Island Stevedoring it follows that the Direction did not fall within the category of directions able to be made pursuant to the implied term in the contracts of employment. It has no force and the applicants are entitled to an injunction restraining the respondent from seeking to take any action upon any alleged contravention of the Direction.

As for the power to make the directions under s 13, Dr Wakefield denied that was the source of the power. The applicants argued s 13 did not give the necessary power. The court said (at [231]):

Where the parties both seek the same result, namely that there was no legislative basis for the QAS Direction – either because it was made pursuant to an implied term or it was beyond any statutory power – it is not for the court to search for some saving statute.

If everyone agreed s 13 was not the statutory source of power the court did not have to find another statute to justify the order.

Even if the decision was made under the common law of employment, Dr Wakefield as a ‘public entity’ still had to consider the human rights implications ([234]). In making the direction, Dr Wakefield ticked a box marked ‘approved’ and signed a briefing note prepared by Theresa Hodges – the Chief Human Resources Officer, Corporate Services Division, Queensland Health ([242]-[244]).  The applicant argued that there was no evidence that Dr Wakefield had read or considered the details of the briefing note. The court rejected that argument. At [248] Martin SJA said:

For Dr Wakefield it was submitted that it was appropriate to infer, in the conventional way, that he had read and considered the material briefed to him and decided in accordance with the recommendations by indicating his approval, and signing the briefing note accordingly. In the absence of any evidence to the contrary, that is an inference I am prepared to draw.

Further (at [265]):

The Briefing Note contains a detailed Human Rights Compatibility Assessment. That assessment addresses both of the requirements of s 58(1). It sufficiently demonstrates that proper consideration was given to the relevant human rights affected by the decision. It identifies them. And, it considers whether the decision would be compatible with human rights.

Outcome

The directions issued to QPS and QAS were both invald but for different reasons.

The QPS Commissioner failed to to give proper consideration to human rights that would be affected by the direction as she was required to do by the Human Rights Act 2019 (Qld) ([266]).

The Director General of Queensland Health had not established that the direction was ‘reasonable’ in the context of the employment arrangements for QAS ([267]).

Rights affected

The applicants alleged that many of their rights were affected by the directions. His Honour said (at [278]) ‘The applicants have been generous and imaginative in their assessment of the number of rights said to have been limited’.  His Honour then went through the alleged infringed rights and found that the directions did not infringe the protected right to:

• Recognition and equality before the law including a right to be free of discrimination on the basis of ‘political belief or activity’ ([287]-[299]);
• Life ([300]-[307]);
• Freedom of thought, conscience, religion and belief ([334]-[353]);
• To take part in public life ([354]-[356]);
• Privacy and reputation ([357]-[371]);
• Liberty and security ([372]-[379]) ‘The reliance on this section by the various applicants was, at best, tentative. The connection between this section and the requirements of the Directions is not obvious.’

The court found the directions did limit the following protected right:

• Protection from torture and cruel, inhuman or degrading treatment which includes a right to be free from medical treatment ‘without the person’s full, free and informed consent’ ([308]-[333]).

In this case the court accepted arguments that had been rejected elsewhere in particular that the compulsion to get vaccinated or lose one’s job meant that the decision was not a free decision or free consent contrary to s 17(c) of the Human Rights Act.  This was contrary to the decision in Kassam v Hazzard (discussed in my post Requiring COVID vaccines for emergency workers (April 1, 2022)).  His Honour distinguished Kassam’s case on the basis that the NSW court was considering the common law whereas the Queensland court had to consider the Queensland Human Rights legislation (see [315]).  At [333] Martin SJA said:

While acknowledging that consent is often accompanied by some form of pressure, where a person’s livelihood can be put at serious risk if consent is not given then that is sufficient to peel “free” away from “full, free and informed”.

At [429] His Honour said:

As I have found that Direction No. 14 and the QAS Direction limited the human rights referred to in s 17(c) of the HRA, I must consider whether that limitation is reasonable and can be demonstrably justified.

Human rights can be limited

Some human rights, can be limited where that is both reasonable and justifiable (Human Rights Act s 13) but some can never be limited. In making an assessment whether the limitation was lawful the court has to consider the nature of the right involved, the link between the limitation and the purpose of the limitation, alternatives to achieve the same purpose and the importance of advancing human rights.

Whether the limitation would achieve its stated purpose of reducing the risk of, but not preventing COVID infection the court said the decision makers had to consider what alternatives were available. Given that some people could get an exemption and still work there were alternatives (see [441]-[449]). At [451]-[452] His Honour said:

Neither the Commissioner nor Dr Wakefield gave close attention to the possible range of solutions. Each was presented with a proposal for mandatory vaccination with little in the way of well-developed critiques of alternative means of reducing illness and infection.

While there were differences in expression by Associate Professor Seale and Professor Griffin on this topic, the balance of their evidence (which on this point I prefer) was that the alternatives to mandatory vaccination would not achieve the same purpose.

That is there were alternatives, the decision makers were not given ‘well developed’ alternatives and did not give detailed consideration to those alternatives but the evidence was that the alternatives would not achieve the same purpose as the mandatory vaccination requirements.

Ultimately the court held that although the directions limited a protected human right, that limitation was ‘demonstrably justified in the terms of s 13.’

Conclusion

At [461]-[462] His Honour said:

I have not held that the QPS Directions and the QAS Direction were invalid, rather I have held that they were unlawful. As each direction has been revoked, the remedies available are confined.

An order setting aside or quashing the legal effects of the directions is not appropriate.

By unlawful he does not mean illegal or criminal, but they were not made according to law. The Police Commissioner did not consider the Human Rights implications as she was obliged to do; the Director-General of Health did not establish that the directions were ‘reasonable’ in the broader context of employment within QAS.

At the time the matter came before the court the relevant directions had all been withdrawn. The court therefore could not, and did not need to, make an order terminating the directions.  Martin SJA noted that it was theoretically possible that QAS or QPS would still seek to take disciplinary action against a member who had not complied with their directions when they were in place. Whilst this would be ‘unusual’ it ‘remains a possibility’ so he would make orders to prohibit any further action to enforce the directions.

There are no orders with respect to employees who may have been disadvantaged by the directions for example those who lost their job for non-compliance. As His Honour said his finding was that the orders were unlawfully made, not that they were ‘invalid’. The inference is that they were effective whilst they were in place. If they were still in place the court would order their withdrawal but as they are no longer in place that is not necessary. The orders are that the QAS and QPS can take no further action against the applicant employees who refused to be vaccinated but there is no order to allow former employees to be reemployed by either service.  

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

A seller of defibrillators in NSW says:

We have a question from a customer – they would like to know if they have a defib and in case someone had a cardiac arrest on their premises or close by and they did not use the defib for that incident is the company liable?

The short answer is ‘no’; the longer answer is it depends on the circumstances.

A key issue is who has the cardiac arrest – is it a stranger – someone who just happens to be nearby –  a visitor to the customer’s business or a staff member?

If it’s a stranger – someone ‘close by’, there is no duty to rescue a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15).  If there is no legal duty to attend there can be no liability for failure to do so.

If the person with the cardiac arrest is a staff member or a visitor to the customer’s business, then clearly there is a duty including a duty to provide first aid (Work Health and Safety Regulation 2017 (NSW) r 42). As the occupier of the premises there must be also be a common law duty to do something – you can’t just have a person die in your premises and do nothing; you would have to at least call triple zero and facilitate ambulance access.

But those duties still do not establish liability. The duty under both common law and legislation requires a defendant to act reasonably. That begs the question of ‘why was the defibrillator was not used?’  If there is some good reason, then there can be no liability.

The biggest issue is causation. For liability to be established a plaintiff would have to prove that it would have made a difference. Defibrillators may increase the chance of surviving an out of hospital cardiac arrest, but they do not guarantee that outcome. Most people who suffer an out of hospital cardiac arrest die, even with a defibrillator. On the balance of probabilities – that is it is more likely than not – that a defibrillator won’t save the patient’s life.  That is not to suggest that they should not be deployed, they increase the chance of survival in the same way that CPR increases the chance of survival. Without intervention the chance of survival is zero. Getting the chance above zero is good but it is still not the case that the survival rate for out of hospital cardiac arrest, even with a defibrillator, is greater than 50%.

For related posts see:

• Making the installation of AED’s compulsory (September 27, 2015);
• Liability for failing to install an AED? (April 7, 2016);
• Legal issues when installing a defibrillator? (August 23, 2016);
• Choosing not to install an AED for spurious reasons (September 10, 2018);
• Liability for installing, or not, an AED in a retirement community (December 1, 2018);
• Fear of legal risk for installing AEDs is misplaced (September 17, 2019); and
• Bill for mandatory installation of AEDs passes in South Australia (December 11, 2022).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent tells me that my earlier post – The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024) has:

… again opened up the sorry saga caused by NSWRFS to many volunteers who were poorly treated throughout the disciplinary hearing process.

The sad state of affairs is that many volunteers have forked out $10K of dollars of their own money for legal assistance. Some for no result at all and some who have ended up in court, to have it settled out of court by the NSWRFS and a gag order placed with no details of the case to be released.

(For a discussion on the general futility of seeking to challenge these types of decisions in the courts, see Michael Eburn ‘Litigating with the SES’ (December 2023) Issue 66 The Volunteer (Official Journal of the NSW SES Volunteers Association) pp. 20-22).

Those same volunteers have become concerned about proposed legislative changes in Queensland that, I’m told (ie I haven’t checked) will allow the Commissioner ‘to directly sack a member of a Rural Fire Brigade …’ (see Rural Fire Brigades Association Queensland Inc., ‘Letter to the Premier and Minister’, 25 January 2024).  My correspondent continues:  

This has raised a question from some of our members being:

‘Under the Rural Fires Act 1997 (NSW), where does the Commissioner or his staff have the authority to dismiss a volunteer from the NSWRFS?’

Brigade membership

With respect to the formation of a rural fire brigade, the Rural Fires Act 1997 (NSW) s 15(1) says:

A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area.

The volunteer members of the Rural Fire Service are those persons listed on the membership register for each brigade (s 20).  A member’s name must be removed from the register if they die or if they resign (Rural Fires Regulation 2022 (NSW) r 8(1)).

A member’s name may be removed from the register by the ‘responsible authority for [the] rural fire brigade’ (r 8(2)):

… if the person–

(a)            is found to have committed a breach of discipline under section 10, or

(b)           becomes a mentally incapacitated person, or

(c)            is convicted–

(i)             in New South Wales of an offence punishable by imprisonment of 12 months or more, or

(ii)            elsewhere than New South Wales of an offence that, if committed in New South Wales, would be punishable by imprisonment for 12 months or more, or

(d)           in the opinion of the responsible authority, is no longer a fit and proper person to be a member of the brigade.

 

To find that a person has ‘committed a breach of discipline’ requires adherence to the procedures set out in r 10 and Service Standard 1.1.2 Discipline (see r 10(2)(a)).  A finding that a person is ‘no longer a fit and proper person to be a member of the brigade’ is a much more generic process but not without some legal oversight – ‘it could not extend to irrelevant considerations such as their shoe size or the cut of their hair’ (Clusters and Local Commanders in the NSW SES (edited and corrected 7 May 2022) (May 4, 2022)).

Responsible authority for a rural fire brigade

The critical question then is ‘who is the responsible authority for a rural fire brigade?’  The Act talks about local authorities forming brigades (s 15). For the purposes of the Act ‘local authority’ means (Rural Fires Act 1997 (NSW) Dictionary, definition of ‘local authority’), relevantly the relevant council or, in the case of the NSW Western district, the person appointed for that purpose or, in the case of Lord Howe Island, the Lord Howe Island Board.

In an earlier post – ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015) I said:

The Act refers to brigades formed by local authorities but, in reality, there are no such brigades.  RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:

Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).

The Service Standard 2.1.1 that I was quoting has been replaced by Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades v2.2 (7 June 2022).  This document no longer refers, specifically to the Rural Fire District Service agreements.  The current Service Standard 2.1.1 (at [2.1]), and s 15(4) of the Act, say:

The Commissioner may form a Brigade for a Rural Fire District if any Local Authority requested to form a Brigade for that district refuses or fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner.

Even though the Service Standard does not refer to Rural Fire District Service Agreements, it does not mean that they do not exist. Section 12A of the Act empowers the Commissioner to enter into a Rural Fire District Service Agreement. That Agreement may ‘… specify functions imposed on the local authority by or under this Act that are to be exercised by the Commissioner’ (s 12A(2)(a)). Service Standard 1.3.4 Rural Fire District Service Agreements says:

1.2          The Rural Fires Act, (the Act) imposes a range of functions on both local authorities and the Commissioner.

1.3          In accordance with section 12A of the Act, the Commissioner of the New South Wales Rural Fire Service (NSW RFS) may enter into a rural fire district service agreement (RFDSA) with any local authority or authorities responsible for a rural fire district or districts.

1.4          In accordance with section 14 of the Act, the Commissioner has delegated to designated members of the NSW RFS many of the functions: (a) imposed upon the Commissioner by the Act; and (b) which he or she has agreed to exercise pursuant to the provisions of the RFDSAs.

1.5          The delegations made by the Commissioner are set out in Service Standard 1.3.1 Delegations and Authorisations.

Service Standard 1.3.1 Delegations and Authorisations shows that a number of functions including the power to form a brigade (s 15) and to remove a member from the register of members (r 8) have been delegated to staff within the RFS.

It follows that the Commissioner is the responsible authority for a rural fire brigade where, either, a local authority has entered into a service agreement which provides that the local authority’s functions with respect to forming a brigade and maintaining the register of members is to be exercised by the Commissioner or where the local authority has refused or failed to establish a brigade after having been directed to do so.  I cannot find a list of local authorities that have entered into a Rural Fire District Service Agreement, but I imagine it’s all of them.

Where the Commissioner is the responsible authority, the power to remove the member’s name has been delegated to the relevant Area Commander and Director Area Operations (Service Standard 1.3.1 Operational Delegations and Authorisations v3.7 (7 June 2022).

Conclusion

The Commissioner gets the power to remove a member from the register of members by virtue of a relevant Rural Fire District Service Agreement where a local authority has delegated those functions to the Commissioner or by virtue of s 15(4) if the local authority has refused or failed to establish a brigade when directed to do so.  In those cases, the Commissioner is the ‘responsible authority for a rural fire brigade’ and can exercise the powers to remove a person’s name from the register of members as set out in regulation 8(2).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today I’m asked

… two questions … [on] the role of Royal Flying Doctor Service (RFDS) and mental health in rural NSW.

Firstly do RFDS nurses have the authority to section mental health patients without a doctor present or would they have to wait for a doctor, ambulance or police to come and section a patient.

Secondly would they be able to transport a patient to a public mental health facility due to their role as 24/7 medical response in rural areas?

The use of the phrase ‘section mental health patients’ is old fashioned language but what I understand the question to mean is ‘can an RFDS nurse detain a competent patient in order to treat their mental illness or mental disorder?’ and ‘can the nurse authorise the staff of a mental health facility to continue that detention?’

The short answer is ‘no’. The Mental Health Act 2007 (NSW) says police, and arguably ambulance officers, can detain a person who is mentally ill or mentally disordered (ss 22 and 20, respectively) and take them to a mental health facility.  A person may also be detained on the basis of a certificate issued by a medical practitioner who has examined the patient (s 19). That examination may be in person or remotely (s 19A).

Once at a mental health facility a person may be detained on the basis of the information provided by the police or ambulance officers (ss 18(1)(b) and (c)) or on the basis of the medical practitioner’s certificate (s 18(1)(a)).

There is nothing to say a nurse can detain a patient, nor anything that a ‘person may be detained in a declared mental health facility’ on the basis of information provided by, or on the opinion of, a registered nurse.

If a person is lawfully detained (eg a medical practitioner has issued a certificate under s 19) then s 81(1) says the following persons can transport the patient to the mental health facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

An ambulance officer means a member of NSW Ambulance (see s 4, definition of ‘ambulance officer’ and Health Services Act 1997 (NSW) s 67A).

The Mental Health Regulation 2019 (NSW) r 45 says, that for the purpose of s 81(1)(d) ‘a person who provides a transport service approved by the Secretary for the purposes of that section is prescribed.’ 

The RFDS can ‘transport a patient to a public mental health facility’ if they have been approved by the Secretary of Health for that purpose.

Other states

The answers to these questions depend on the terms of the Mental Health Act 1997 (NSW). The RFDS operates across Australia and the answer may be different in different jurisdictions.  Further if the RFDS can lawfully ‘section’ a person in another state/territory they may also be able to transfer them to NSW on the basis that the person is lawfully detained in and being transported from that other state.  The answer above is an answer only in NSW.

Conclusion

In NSW, RFDS nurses do not have the authority to section mental health patients (if, by that, we mean detain them and provide treatment to a competent person without their consent and/or authorise the staff of a mental health facility to detain them).  To do that would require action by police or ambulance officers or an certificate by a medical practitioner.

The RFDS is able to transport a patient to a public mental health facility within NSW if they have been approved by the Secretary of Health for that purpose.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

The general rule is that a patient is presumed to have the capacity to make medical and other decisions on their own behalf unless and until it is established that they do not have that capacity. Today’s correspondent asks whether that has been reversed in WA by the Mental Health Act 2014 (WA) s 15(1). The section says:

For the purposes of this Act, a person has the capacity to make a decision about a matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to —

(a) understand any information or advice about the decision that is required under this Act to be provided to the person; and

(b) understand the matters involved in the decision; and

(c) understand the effect of the decision; and

(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and

(e) communicate the decision in some way.

My correspondent says:

In general of course all people have the presumption of capacity under common law until that presumption is rebutted.

Practically that means for clinicians the onus is on us to disprove that presumption through our assessment of a patient. That’s very reasonable though … this creates those problematic situations where we haven’t had time to fully assess a person’s capacity or they won’t cooperate with that assessment and then they wish to leave. In general, the presumption of capacity applies and we generally can’t hold them against their will…

To me this [s 15] essentially reverses the presumption of capacity so in grey area situations where the clinician is unsure or hasn’t had time to assess the patient (or patient won’t cooperate) then as far as the MHA is concerned, the patient does not have decision making capacity.

What do you think of this? Would you agree this section 15 of the WA MHA is effectively reversing the presumption of capacity with respect to mental health patients?

The Mental Health Act

One has to admit that s 15 is not the norm. One would expect the section to say a person has capacity unless a relevant person has determined that they do not have any of the capacities listed in (a) to (e); not that the person must be satisfied that they do.

I can see the argument and its appeal to WA doctors (see No power to detain a patient just because it’s good for them (January 22, 2023) and Publication on detaining patients in the ED (August 29, 2023)) but like all exercises in statutory interpretation the section has to be read in context. In particular s 15 appears in Part 5, Division 1 of the Act. That Division is titled ‘Decision making capacity generally’.  Also in that Division is s 13(1) which says:

For the purposes of this Act, an adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity.

Both s 13 and s 15 have to have work to do. An interpretation that says they are inconsistent (one presumes capacity, the other presumes incapacity) cannot be right.

The Explanatory Memorandum filed with the Mental Health Bill 2013 (the Bill that became the Act of 2014) says:

Clause 13 relates to an adult making a decision about a matter with respect to himself or herself. The Act creates a presumption that an adult has decision making capacity, unless shown not to have that capacity. Whether an adult has the requisite capacity to make a decision under the Act is a decision for the person or body making a determination under clause 15…

Clause 15 is a threshold test in that it sets out the requirements for a person to be considered to have capacity to make decisions under the Act that are not treatment decisions. The intention is to require decision makers to consider whether or a not a person who is being asked to make a treatment decision understands the nature and consequences of the decision they are being asked to make. If an adult does not meet the requirements in clause 15, then the presumption in clause 13 is rebutted in relation to that adult, ie they do not have decision making capacity…

As I read it, s 13 of the Act (cl 13 of the Bill) reinforces the presumption of capacity. If a ‘person who is performing a function under this Act that requires that other person to determine’ whether the patient does in fact have capacity they have to examine them.  They do not have to be ‘satisfied’ that the person does not have capacity, they have to be ‘satisfied’ that they do have all the capacities listed.  In a sense that shifts the ‘onus of proof’ – the question is not ‘are you sure they don’t have capacity?’ but rather ‘are you sure they do?’

Further the Act has limited application in a hospital ED where a patient may want to leave before they have been examined or may not want to co-operate with the staff. The Mental Health Act is about the treatment of mental illness. A person is mentally ill if and only if (s 6; emphasis added)):

… the person has a condition that —

(a) is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; AND

(b) significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

A person who is intoxicated or has a head injury is not mentally ill. 

Section 15 is about capacity to make decisions generally. Section 18 is about the capacity to make medical treatment decisions, but it is in similar terms to s 15. It says ‘A person has the capacity to make a treatment decision … if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to’ understand and weigh up the factors listed in s 18(a) to (e). For the purposes of the Mental Health Act, ‘treatment’ means (s 4):

…the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation;

The Guardianship and Administration Act

The Guardianship and Administration Act 1990 (WA) also deals with medical treatment which is defined (s 3) to mean:

(i) medical or surgical treatment, including a life sustaining measure or palliative care; or

(ii) dental treatment; or

(iii) other health care;

Section 4(3) says:

 Every person shall be presumed to be capable of —

(a)            looking after his own health and safety;

(b)           making reasonable judgments in respect of matters relating to his person;

(c)            managing his own affairs; and

(d)           making reasonable judgments in respect of matters relating to his estate,

until the contrary is proved to the satisfaction of the State Administrative Tribunal.

Urgent treatment can be given to a person who cannot make ‘reasonable judgments in respect of the treatment’ (s 110ZI).  What constitutes ‘reasonable judgments’ is not defined but I would suggest a court would not accept that it means a judgement that the doctors agree with; that would be inconsistent with a fundamental principle of law and bio-medical ethics – the respect for patient autonomy.  I would infer that a ‘reasonable judgement’ is one where the patient has the capacity to receive and consider advice before making a decision to accept or reject treatment even if ‘the reasons for the refusal were rational or irrational, unknown or even non-existent’ (In re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18 cited with approval in H v AC [2024] NSWSC 40). The test is a functional one – ie is there capacity – not an outcome test – is the decision one that others consider ‘a good or wise decision’ (PBU & NJE v Mental Health Tribunal [2018] VSC 564).

Discussion

Although the language is ambiguous, I do not think s 15 of the Mental Health Act 2014 (WA) reverses the presumption of capacity. It may lower the threshold to be met to set aside the presumption but to in deny the presumption would be inconsistent with s 13.

For doctors in WA ED departments, even if it did, it would only do so with respect to patients that doctors suspect are mentally ill, not who require other treatment.  A person who has arrived in ED but wants to leave is presumed to be competent under the Guardianship and Administration Act 1990 (the ‘GA Act’). In MGP [2020] WASAT 65, at [34] Presiding Member Marillier said:

… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.

Consistent with that is my suggested interpretation of the term ‘reasonable judgments’ in relation to health care. The fact that a person does not want to accept treatment offered, or remain in an ED until examined, is not sufficient to show that they are not capable of making ‘reasonable judgements’ even if in the doctor’s opinion they are not making reasonable judgements.

Conclusion

My conclusion is that the effect of ss 15 and 18 of the Mental Health Act 2014 (WA) is that there is a lower bar to overcome the presumption of capacity when it comes to people who are mentally ill and where treatment for a mental illness is being considered, than there is in other cases of medical treatment where ‘clear and cogent evidence is required to rebut the statutory presumption of capacity’. 

But even under the Mental Health Act there would have to be some reason – some evidence – to show that the person had considered the factors listed and why they came to the conclusion that they were not satisfied that the person had all of the capacities listed. If they just hadn’t yet examined the person that would mean everyone in the ED, in fact everyone in the community, would be presumed to be not competent which would be an anathema to law, ethics and community standards.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question raises further issues about ‘natural justice’ in disciplinary hearings in the RFS. The question begins:

Your recent articles regarding the failed litigation arising from the Hawkesbury District [RFS complaint ends up in court (February 20, 2023) and Appeal by RFS volunteers over management of complaints (December 28, 2023)] has given me reason to read up on the Discipline Service Standard.

I found the context of SS 1.1.2-3 “Disciplinary Hearings” to be rather disturbing.

Section 2.1(a) requires the panel to “observe the rules of natural justice”. A footnote then refers to an information sheet, “Natural Justice”.

Section 2.2 states: “the disciplinary panel is not bound by the rules of evidence”.  A footnote states “(T)he rules of evidence that apply in a court do not apply to a disciplinary hearing”.  It is presumed that this implies the Evidence Act 1995 (NSW).

What disturbs me is that a disciplinary panel is able to make findings and impose penalties, yet there is an absence of guidance on how a panel should operate. It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”.  There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.

The “Natural Justice” information sheet (from 2009) refers to “Fact Sheet 14” published by the NSW Ombudsman.  This Fact Sheet appears to superseded / no longer published, however the “Guideline C1 People the subject to a report” and “Good conduct and administrative practice” appears to be the current Ombudsman documents relating to the application of Natural Justice.  Footnote 48 (pg. 67 of the “Good conduct” document) provides some caselaw to the effect that “it is an error of law to make a finding of fact for which there is no probative evidence”.

The Evidence Act sets a clear path for those involved in finding matters of fact based on the evidence that is provided and tested.  It appears that by exorcising this guidance, and a lack of useful guidance in the SS is problematic.  According to a report arising from a survey to review the way grievance and discipline matters are dealt with there was a lack of confidence in the process by the membership.  In the review, no comments appear to be made regarding the conduct of the processes under the SS, including disciplinary panels (other than construct of the panel membership).  It is also worthwhile noting that thus far there appears no further (obvious / publicised) action has been taken since the report’s publication in mid-2021.

NB I also found the following links of interest, particularly given Clayton Utz’s deep involvement with the NSW Government agencies and particularly the RFS.

• Public Law Essentials 05: Procedural fairness https://www.claytonutz.com/insights/2022/august/public-law-essentials-05-procedural-fairness
• Failure to afford procedural fairness will generally be material: High Court https://www.claytonutz.com/insights/2022/august/failure-to-afford-procedural-fairness-will-generally-be-material-high-court
• The right to reputation: natural justice and human rights issues in administrative and regulatory investigations https://www.claytonutz.com/insights/2020/october/the-right-to-reputation-natural-justice-and-human-rights-issues-in-administrative-and-regulatory-investigations

Given the lack of effective guidance, is it realistic to view the current disciplinary processes within the RFS as being able to be easily manipulated to weaponise the process or “engineer a result” to the detriment of a respondent? Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?

The Evidence Act 1995 (NSW)

The Evidence Act does set out the rules of evidence as applied in NSW courts. It is the implementation of a Uniform Evidence Act that is meant to ensure the law is similar across Australia. So far, the Uniform Act has been adopted by the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory.

The rules of evidence are complex and require many years of practice to fully understand. It is not surprising that an internal RFS panel is not expected to be bound by the rules of evidence.

Further the fundamental rule of evidence law is that relevant evidence is admissible, irrelevant evidence is not (Evidence Act 1995 (NSW) s 56).  That means that the rules of evidence that follow are designed to keep out evidence that is otherwise relevant, that is (s 55):

… evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

The reasons for excluding evidence are many and varied but generally relate to whether it can be relied upon, whether the risk of allowing the evidence exceed the potential benefit and sometimes whether the evidence is in the right form.

The rules are most strictly applied in criminal cases where the Crown bears the burden of proving its case beyond reasonable doubt; and in jury cases where jurors are having their first experience in hearing and assessing evidence. Judge alone cases often take a more flexible approach where the judge will admit the evidence but then decide what value to give any controversial evidence.

The Evidence Act ‘applies to all proceedings in a NSW court’ (s 4).  An RFS tribunal or panel is not a court. The statement in the service standard that a tribunal is not bound by the rules of evidence is a statement of the law rather than the RFS ‘exorcising’ the Act that would otherwise apply.

That the rules of evidence do not apply outside a court room is not unusual. Coroners are not bound by the rules of evidence (Coroners Act 2009 (NSW) s 58) nor the is the NSW Civil and Administrative Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) s 38). These tribunals have much more extensive jurisdiction than an RFS panel.

Natural justice and procedural fairness

The rules of natural justice are fundamentally a right to be heard before an adverse decision is made and the right to an unbiased decision maker. Procedural fairness requires that a person be informed of the allegations against them and are given the opportunity to respond to them. It does not mean they have to be given access to every document and internal memo, but they have to know what is alleged – see Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

The rules of natural justice and procedural fairness apply regardless of whether the Evidence Act applies.  Also applicable will be the rule in Briginshaw v Briginshaw (1938) 60 CLR 336.  In a paper Briginshaw in Land and Environment Court Proceedings – Introductory Observations from the Judicial Perspective, Justice Rachel Pepper explained the effect of Briginshaw. She said (at [5]-[8]):

The seminal statement or explanation derives from Dixon J in Briginshaw v Briginshaw, where his Honour stated that “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities.” His Honour went on to explain that the standard is one of “reasonable satisfaction”:

…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

… The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences…

… [It] does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind.  Thus the High Court in Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd] stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”.  In short, the more serious the allegation, the more probative or stronger the evidence needs to be.

The Briginshaw principle is enshrined in the Evidence Act (s 140(2)) but the fact that the rule applies in civil proceedings where the rules of evidence apply does not meant that it does not apply in other cases.  A tribunal will need to be satisfied that there is evidence – something upon which they can be satisfied that the allegation is made out – before they can find an allegation proved and that is true even if the evidence might not be admissible in a court.

Discussion

An RFS tribunal may not be bound by the rules of evidence but that does not mean it is a law-free zone. My correspondent says:

It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”. 

But there is guidance in the decision in Briginshaw v Briginshaw.  One might think that it is a long stretch to assume that the panel knows that case, but it is equally a long stretch to assume that they would know the rules of evidence if they were bound to apply to the Evidence Act.

Further it is said:

There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.

But there is, the decisions may be subject to judicial review and the rules of natural justice and procedural fairness must have been applied. 

The Evidence Act does not set ‘a clear path for those involved in finding matters of fact based on the evidence that is provided and tested’.  It provides rules on what evidence can be used, not how it is to be used, what weight is to be given to evidence or how a tribunal is to make use of the evidence in coming to its final decision. I think my correspondent expects too much from the Act.

I’m asked:

Given the lack of effective guidance, is it realistic to view the current disciplinary processes within the RFS as being able to be easily manipulated to weaponise the process or “engineer a result” to the detriment of a respondent? 

I cannot see that in the SOP nor in the fact that the panel is not bound by the rules of evidence there is an ability to easily manipulate the process. The panel is made up of three volunteers – peers of the people likely to be before it – (SS 1.1.2-1 [2.1] and [2.9]).  I don’t know why anyone would assume those members would not come to the task with an open mind, a desire to act in good faith and in accordance with the service standard which directs them to apply the rules of natural justice and to avoid conflicts of interest (see [2.17]).

As for the question:

Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?

I would have thought so; in fact, I don’t understand why the Hawkesbury litigant’s did not think being exonerated by the process was not sufficient to protect their reputation.  If their reputation has been harmed surely it was made worse by going to court and having the adverse findings as their credit publicly recorded by the judge? The process if applied according to the service standard would be absolutely defensible, as indeed it was defended in the cases referred to at the start of this post.

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