And now for a question to move away from fires. Today’s correspondent is

… at a point of my life where, due to illness, I could die anytime, anywhere. I do not want to get resuscitated and plan to put a DNR order in place. My question is, how would anyone know about this order if they find me laying somewhere? how would the ambulance know? would they not start resuscitation before trying to find out who I am and if I may have such an order in place?

That is indeed a complicated question as a search of the terms “DNR”, “withholding” or “communicating” on this blog site will show.  Any one of those searches will bring up multiple posts from people concerned about how to communicate their wishes and from first aiders and paramedics concerned about how they will know what they are to do.

I think the starting point on this question (which is not the question about what makes a valid refusal, but how to communicate it) is the Canadian case of Malette v Shulman (1990) 67 DLR (4th) 321.  Ms Malette was a Jehovah’s witness who carried a card saying she did not want a blood transfusion under any circumstances. The court said the treating doctor should have honoured that even though it meant she would have died.   Robins JA said:

I do not agree… that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

So the answer is to find a way to communicate that wish.  I think a tattoo across the chest that says “Do not perform Cardio-Pulmonary Resuscitation” would be clear and should be honoured but I know that many who read this blog disagree and would be unwilling to honour that direction.  See

• More on DNR tattoos (January 30, 2018);
• Withholding resuscitation in first aid (November 21, 2017);
• ‘Medical tattoos offer important health information’ (March 3, 2012).
• ‘Do-not-resuscitate tattoos: What’s a doctor to do?’, Radio National, Monday 29 January 2018).

Like Ms Malette’s card it would be a way, even if not the only way, ‘to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to’ CPR.

Another way is a medic-alert bracelet, but again some are reluctant to accept that – see Ignoring a medic-alert bracelet (July 19, 2015)).

When a family member of mine was terminally ill we found that there was a process to record the DNR order with NSW Ambulance so that if an ambulance was called to their home, the coordination centre could advise, and the paramedics understood, that they were terminally ill and could treat accordingly (see Withholding treatment from a patient in palliative care (November 19, 2019)). That process may not work if the sudden cardiac arrest happens outside the home because the order was linked to an address.  There would be no way to link the order to a call to a person collapsed away from their home.  It would not be possible or reasonable to require paramedics to check back with coord, when they find a patient’s name, to see if there is any recorded DNR order linked to that name nor could they be sure that the patient they are treating is the same person for whom the DNR order has been recorded.

Ultimately there is no easy or guaranteed way to ensure that ‘anyone [would] know about this order if they find me laying somewhere’.  That’s true whether the ‘anyone’ is a good Samaritan or a paramedic.  And yes one would expect that the paramedics (and others) would start resuscitation and if you are away from home have no way of trying to find out ‘who I am and if I may have such an order in place’.

Conclusion

The best that can be done is to find a way ‘to notify doctors and other providers of health care, should [you] be unconscious or otherwise unable to convey [your] wishes…’  As I say I think an unambiguous tattoo should be enough, but I doubt it is. The other would be, depending on the state or territory in which you live, to work with your treating doctor (see Asking for a DNR order (August 24, 2019)) to get an order formally documented in accordance with the terms of the legislation (if any) in your state or territory, and carry a copy in your pocket – perhaps along with a medic alert bracelet and a tattoo directing people to it.

If you collapse in the street you can still expect that a good Samaritan bystander is going to start CPR because it is simply too much to expect them to deal with those issues, but paramedics and then doctors at hospital may be willing to terminate treatment even if others have started it.

Today’s question is about the State of Emergency and the idea of ‘tourist exclusion zones’ in NSW.

There appears to be some confusion in our area of the “Tourist exclusion zones” that the NSW RFS issued last week ahead of extreme fire dangers predicted for last Saturday.

Firstly, is this classed as a legal order or or a strong recommendation?

Secondly, since the attached flyer was put out, there has been no further mention about it in the media or via the RFS website or Facebook pages, which has people confused as to whether the exclusion still applies and whether tourists are still banned (if banned is even the correct word?)

Obviously the tourist exclusion zone was beneficial as fire did close major roads on that Saturday. But there is confusion now regarding whether any legal restrictions currently apply.

Publication of the ‘Tourist Exclusion Zone’ is shown below:

The most recent declaration of a State of Emergency was made on 2 January 2020 and remains in force until 10 January 2020 so it is in force at the time of writing this post. This declaration followed earlier declarations made on  The ‘emergency area’ for the purpose of that declaration (s 32A) is ‘the whole of the State’.

During a State of Emergency (State Emergency and Rescue Management Act 1989 (NSW) s 37):

(1) The Minister may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency, direct, or authorise an emergency services officer to direct, a person to do any or all of the following:

(a) to leave any particular premises and to move out of an emergency area or any part of an emergency area…

(2) If the person does not comply with the direction, an emergency services officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances.

It is an offence to obstruct the minister or emergency personnel (s 40) but it is not an offence to fail to comply with a direction under s 37. The remedy is, as quoted above (s 37(2)), that a person who fails to comply can be removed with force.

Section 37A allows the Minister to

direct, or authorise an emergency services officer to direct, the doing of any one or more of the following:

(a) the closure to traffic of any street, road, lane, thoroughfare or footpath or place open to or used by the public, in an emergency area or any part of an emergency area,

(b) the closure of any other public or private place in an emergency area or any part of an emergency area…

An authorised officer may use force to ensure compliance with a direction under s 37A (s 37E).

Under the Rural Fires Act (1997) (s 22A):

An officer of a rural fire brigade or group of rural fire brigades may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

Further (s 24):

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

How was this zone declared?

We can, with confidence, say this declaration of a ‘Tourist Exclusion Zone’ does not purport to be action under the Rural Fires Act.  The area described is so large it could not be described as being ‘near a [particular] fire, incident or other emergency’ and it is not purporting to close a road or public place but to ask people to leave the whole area.

Equally the order is not made under s 37E. It is not an order closing a ‘road’ or a ‘place’.  The roads and places remain open, just a certain class of people are asked to leave.

If this is a legal order, it has to have been made under the State Emergency and Rescue Management Act 1989 (NSW) s 37 and the disaster declaration.  The first point to note is that if this is meant to be a declaration under s 37, it will expire tomorrow when the State of Emergency declaration lapses (unless a fresh declaration is made and then then further orders made under s 37).

I cannot find any more formal direction made by the Minister or purporting to be made by an emergency services officer, so it seems that the extract in the photo above is the extent of the declaration.  In that document there is no indication who has made this declaration (ie it does not say that this comes from the Minister or an authorised Emergency Services Officer).

The declaration as shown does not purport to be made under s 37, it does not use the language of s 37 (it says “If you are holidaying on the South Coast … you need to leave before this Saturday”; it does not say “If you are holidaying on the South Coast … you are directed to leave before this Saturday”).  The order is vague, it does not define who is a ‘tourist’ so it is not clear who it applies to.  Is a person visiting family a ‘tourist’?

It also has no express time limit. It does say

Dangerous conditions for holiday makers on the South Coast of NSW this Saturday 4 January 2020.

• Widespread Extreme Fire Danger is forecast for the South Coast this Saturday 4 January 2020.

On one view, no matter how it was made it expired on 4 January 2020.  The alternative is that, if it was made under the State of Emergency declaration it will have to lapse when the declaration lapses.

On the other hand, in a news publication (Kevin Nguyen and Emma Elsworthy ‘NSW Premier Gladys Berejiklian declares state of emergency, as thousands flee South Coast ahead of horror fire weekend’ ABC News (Online) (2 January 2020)) the making of the State of Emergency declaration is announced and, it goes onto say:

A “tourist leave zone” has been declared for a 14,000-square-kilometre area between Nowra and the edge of Victoria’s northern border.

The NSW RFS initially declared a leave zone between Batemans Bay down to the border, but extended that zone to the area between Nowra and Ulladulla late on Thursday.

It is the “largest mass relocation of people out of the region that we’ve ever seen,” NSW Minister for Transport Andrew Constance said.

RFS Deputy Commissioner Rob Rogers said it was a race against the clock to get tourists out before Saturday.

That links the declaration (or at least the extension of it) to the declaration of the State of Emergency but there is no express linkage in the material above.

Why does it matter

Whether this was made under s 37, or not, will be important only if there is a conflict.  The most obvious source of conflict will be if an authorised officer or police officer directs a tourist to leave and he or she does not and the tourist is charged with an offence under s. 40, or the authorised officer attempts to use force and the disgruntled tourist sues for assault or false imprisonment or makes a complaint to police regarding an assault.

In either case whether this is a declaration under s 37 would be essential defence to either party.  If it is not, the tourist cannot be guilty under s 40 and the officer who attempts to use force to enforce it, would be.

Hopefully tourists did comply (for their own safety) and hopefully RFS members or police aren’t using force to evict people for their own safety, but lawyers have to think of all the possibilities.

My view

My view is that this is not a direction under s 37. If a direction is going to compel behaviour then the people to whom it is directed to need to know they are required, by law, to comply as do those that are charged with enforcing it.  The failure to indicate by whom the direction has been made, the failure to reference the Act and the declaration of the State of Emergency, the failure to use the words of s 37 and the failure to even attempt to define to whom the order applies would, in my view, lead to the conclusion that this was at best, advice, and not a legally binding direction.  The very fact that my correspondent is confused points to the problem.  If it is so unclear no-one can know what their legal obligation was so the inference is that the document does not, and does not purport to, impose a legal obligation.  If one wanted to impose an obligation and exercise power under s 37 the text would have to be much clearer so people to whom it is directed can know that it applies to them and what they are required to do.

In any event, again given people need to know what their legal obligations are, if it was a direction under s 37 it was in force only until 4 January 2020 as that is the only time period referenced in the direction.

Conclusion

To turn to the questions then, my view is:

• Firstly, is this classed as a legal order or a strong recommendation? It is my view that a court would conclude this was a ‘strong recommendation’, advice rather than a legal order.
• Does ‘the exclusion still [apply and are]… tourists are still banned (if banned is even the correct word?)’? In my view no, the only time period mentioned is 4 January 2020 so it must have lapsed as at 5 January.  If I’m wrong and it is an order under s 37 and did not expire on 4 January, it will lapse when the declaration lapses (tomorrow) and would need to be remade if a further Declaration of Emergency is made.

 

 

Krystian Seibert has made a comment on my post Diverting Facebook donations (January 6, 2020).  Mr Seibert is described as an Industry Fellow at Swinburne Business School, Melbourne.  His online CV says:

Krystian Seibert is a researcher, educator and advocate focused on public policy, philanthropy and the not-for-profit sector.

He has particular interest in the regulation of philanthropy and the not-for-profit sector, the legitimacy or ‘social license’ of philanthropy, and the role of not-for profit sector advocacy as a driver of social innovation.

Krystian teaches strategic philanthropy as part of the Master of Social Impact and is an active participant in public policy debates in relation to philanthropy and the not-for-profit sector. Most recently, he played a key role shaping amendments to Australia’s electoral laws to ensure that they do not harm the ability of charities to undertake issues-based advocacy, with his comments on the amendments referenced during the debate in the Australian Senate.

… Krystian was an adviser to a former Australian Assistant Treasurer. In this role he was responsible for the delivery of major not-for-profit sector reforms including the establishment of Australia’s first independent charities regulator, the Australian Charities and Not-for-profits Commission (ACNC), and the passage of Australia’s first comprehensive statutory definition of charity, the Charities Act 2013.

He is clearly better qualified than I to address this issue.  He says:

An interesting issue.

The relevant rules to examine would be those of the PayPal Giving Fund, which is a public ancillary fund (https://www.ato.gov.au/Non-profit/Getting-started/In-detail/Types-of-DGRs/Public-ancillary-funds/) – that’s where the money will still be, as the PayPal Giving Fund only distributes them after 15-60 days of an appeal commencing.

The trust deed of the RFS Donation Fund isn’t actually relevant, at least not at this stage.

The PayPal Giving Fund’s ACNC page and governing documents can be found here: https://www.acnc.gov.au/charity/2a364343e6b055199bb7be2c82d73471#financials-documents.

As a public ancillary fund, the trustees of the public ancillary fund legally make the decisions about where donations are distributed.

They can act on a recommendation of the person setting up an appeal. They can’t actually promise to honour instructions, as that would create a separate fund and the donations wouldn’t be tax deductible (see Note 2 to Guideline 45 within the Public Ancillary Fund Guidelines 2011: https://www.legislation.gov.au/Details/F2016C00434/3339ba19-0f73-4bae-ae35-32f26e3c8243).

In theory, the trustees could donate them to any charity with so called ‘Item 1 deductible gift recipient’ status. That would be acting consistently with both trust law and tax law and their governing document.

I imagine how it’s set up is that each appeal is structured as a ‘sub-fund’ and then the person setting up an appeal makes a recommendation about how it’s distributed. Ideally this would be consistent with how the appeal is marketed.

This is all indeed consistent with how the PayPal Giving Fund trust deed is drafted, with this being set out in clause 4.7: https://acncpubfilesprodstorage.blob.core.windows.net/public/33bd51ba-3aaf-e811-a963-000d3ad244fd-8d7aa3c8-a499-4e1e-9f4f-adb50ec97271-Governing%20Document-f3e76742-55b0-e811-a960-000d3ad24282-Trust_Deed_PayPal_Giving_Fund_Australia_Redacted.pdf

So up until this point, there would be legally nothing stopping Barber from recommending the funds be distributed from the PayPal Giving Account to other charities. Then it depends on what the response of the PayPal Giving Fund’s trustees is.

However Facebook may have certain terms and conditions for appeals using its platform, and also the PayPal Giving Account may have a policy – e.g that it considers a ‘recommendation’ for a distribution to be the charity which an appeal is set up for. But they may also adopt a flexible approach, I don’t know.

State and Territory fundraising laws may also apply and provisions about misleading and deceptive conduct, however with such conduct it’s unlikely that the appeal would be considered in trade or commerce (but it may be).

It’s somewhat complicated. However, it’s a question about how the PayPal Giving Fund is operated. It’s not about the RFS Donation Fund.

I note that clause 4.7 of the PayPal Giving Fund trust deed says:

…

(c) The donor or group of donors (or persons nominated by the donor or group of donors) may make requests or indicate preferences, as to the name of the management account, and as to the payments or applications from the account.

(b) The trust is under no obligation to comply, and the Trustee may not agree or give an assurance that it will comply, with any request or preference.

…

Of course, PayPal would normally pay the money to the charity nominated when the account has been set up, otherwise people would not trust it.   But given Ms Barber’s campaign is now the biggest fundraiser in Facebook history (Sharon Masige, ‘Celeste Barber’s bushfire fundraiser on Facebook is officially the largest in the platform’s history, raising over $40 million’ Business Insider Australia (7 January 2020)) they may agree that this is not a normal case and flexibility is required.

But that does not resolve all the complexity.  First Ms Barber may be a donor (in that she no doubt has made a personal contribution) but there are thousands of donors. She may even represent a ‘group of donors’ but she cannot claim to be ‘nominated’ to speak for all donors.  As a donor or nominee of a group of donors, she could make a recommendation to the Trustees to distribute the money to funds other than the NSW Rural Fire Service & Brigades Donations Fund.  That may be more well received if it is supported by the trustees of the RFS fund.  But some donors may be disgruntled if they feel their donation has not gone to the charity that they intended to donate to.

There is no doubt a record of each donor (in order to issue a receipt) so it would be possible to contact each donor and ask them how they want their donation distributed to ensure that an amount equal to the amount that people want to go to the RFS actually gets there, but one can imagine that would be a huge undertaking.

And, as another lawyer on the blog said:

I suspect if any of the donated funds were not passed to the Trustees, they would be obliged under their fiduciary duty to sue for their recovery or be sued by the potential beneficiaries for failing to collect all the funds due. Interesting legal point though if Brigades have no legal standing as beneficiaries…potentially a failure in the Trust to settle properly and a need to make an application to the Supreme Court for appropriate rectification orders. Hopefully won’t go that far though, but legal advice will definitely be required.

Interestingly, the article cited above, says:

While Facebook’s website says donations to the PayPal giving fund are sent within 15 – 90 days, Antonia Sanda, Head of Communications at Facebook Australia told Business Insider Australia this will not be the case in this instance. Instead, PayPal is working to expedite the funds raised through Celeste’s page to the NSW RFS as soon as possible.

“Facebook Australia and PayPal Giving Fund Australia recognise the importance of donated funds being granted swiftly for the purpose of disaster relief and we are working with NSW Rural Fire Service to do everything we can to expedite the process and grant donated funds to them as soon as possible,” Sanda told Business Insider Australia in an email.

While PayPal is looking to expedite the funds, it still has to “go through the appropriate checks and processes to ensure that all the money ends up going to the right accounts and organisations”.

Once the money ends up in the NSW Rural Fire Service & Brigades Donations Fund it has to be spent in accordance with the trust deed governing that fund.

A general practitioner has written to me about the role of GPs in emergency response.  The story has also been raised with the ABC – see Patrick Wood ‘Local GPs who were sidelined at evacuation centres want to be added to bushfire plans’ ABC News (Online) (7 January 2020).

The issue is largely identified in the ABC story.  In essence, general practitioners responded to evacuation centres in the areas where they practise.  The doctor who wrote to me said:

I expected someone from the medical coordination team or Red Cross or hospital in [a NSW country centre], 30 km away to get in touch with us. We have a large elderly population with many complex medical needs.  But no one did.

As the situation worsened as the day progressed, we raided our practices and our pharmacists to try to at least provide some basic care.  And it was needed.  We gave adrenaline to a severe asthmatic, we nebulised those who were struggling in the smoke.  The ambulances took at least an hour to arrive.  Would we have had increased fatalities if we had not been here, I think yes. As the fire situation worsened, our evacuee population rose to 1000 over 3 sites. …

As I write this we still have no St John cover.  And we don’t know how long we will need to provide this care…

I don’t understand why there would not be better coordination of care. If not for the dedication of our lovely group of local GPS and evacuated nurses, who have and continue to share the provision of 24 hr care, these people were abandoned with not even any access to basic first aid. Given they are elderly, given that the nearest hospital is 30 km away, why would you not send down a team or at least support or liaise with the local GPs their care?

The critical issue here is pre-planning. Once the emergency starts its very hard for those who, under the local emergency plan, have been given responsibility to act, or react, to do anything other than apply the plan.

Because a NSW town gets a mention, I’ll look at NSW.

The State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) provides for planning at the local, regional and state level.  At the local level the plan is written by the Local Emergency Management Committee (ss 28 and 29).  The Committee is made up of

(a) the General Manager of the council of the relevant local government area, who is to be the Chairperson of the Committee, and

(b) a senior representative of each emergency services organisation operating in the relevant local government area, and

(c) a representative of each organisation that:

(i) provides services in a functional area or areas in the relevant local government area, and

(ii) the council of that area determines from time to time is to be represented on the Committee, and

(d) the Local Emergency Operations Controller for the relevant local government area.

The NSW Emergency Management Plan (the EM Plan) and supporting sub-plans, including the Health Services (HEALTHPLAN) Supporting Plan provide roles for ‘Participating and Supporting Organisations’

Participating organisations are (EM Plan [435]):

The Government Departments, statutory authorities, volunteer organisations and other agencies listed as Participating Organisations have either given formal notice to Agency Controllers or Functional Area Coordinators, or have acknowledged to the SEMC, that they are willing to participate in emergency response and recovery operations under the direction of the Controller of a Combat Agency, or Coordinator of a Functional Area, or an EOCON, and with levels of resources or support as appropriate to the emergency operation.

Supporting Organisations are (EM Plan [437]) organisations that

… have indicated a willingness to participate and provide specialist support resources. Where such coordination arrangements are required for the conduct of emergency response and recovery operations, the agreed roles, tasks and responsibilities of the Supporting Organisations should be recorded in Combat Agency or Functional Area Plans.

In the Health Plan the participating organisations are listed at [251] as:

a) Australian Red Cross Blood Service (NSW)

b) Department of Health and Ageing, NSW & ACT State Office (DoHA-NSW/ACT Office)

c) Peak bodies of Residential Aged Care Services

d) Ageing Disability and Home Care (ADHC), Department of Family and Community Services

e) St John Ambulance Australia (NSW)

Under supporting organisations [252]) it says:

NSW Health may request the provision of support and resources from the following organisations. Resource commitment agreements are to be negotiated at the LHD level [see Annex 7].

a) Residential Aged Care Services

b) Private Health Facilities

c) Local Governments

f) Medicare Locals

Annex 7 says:

Medicare locals are primary health care organisations with the principal role of working with general practitioners, nurses, allied health professionals, Aboriginal Medical Services and LHDs to identify and respond to gaps in local health services.

There is a role for local health districts (at [241]):

All Local Health Districts and Networks through the LHD/Network HEALTHPLANs will develop control/coordination management infrastructures and arrangements for health emergencies/emergencies. When LHD/Network-based services are mobilised for State- and LHD-level responses, they will be coordinated through the LHD/Network HSFAC [Health Services Functional Area Coordinator].

With respect to pre-hospital care, the plan says (at [218]):

The State Ambulance Services Controller is responsible under the NSW HEALTHPLAN for controlling and coordinating pre-hospital emergency and ambulance services during an emergency.

This includes ‘Activating and coordinating pre-hospital supporting services including St John Ambulance Australia (NSW)’.

Discussion

GPs can be involved in their local emergency response and as a part of the State HEALTHPLAN but this has to be done in advance of an emergency and without waiting for ‘someone from the medical coordination team or Red Cross or hospital …away to get in touch with us’ because those people won’t know who to contact, who is available or who is willing to do what.

Rather, when there is no emergency present, interest GPs need to form an organisation, or through an existing organisation (eg the Royal Australian College of General Practitioners, the Australian College of Rural and Remote Medicine, the Rural Doctors Association of Australia or the like)  approach the local emergency management committee and State Health Services Functional Area Coordinator and advocate for a role in the plan.  They need to demonstrate to those that write the plan that they have a role to play and be part of the planning process to say what they will do, how they will be activated and what services they can provide.

Failing that the GP that arrives at the evacuation centre is another spontaneous volunteer, that is ‘an individual who is not affiliated with an existing incident response organisation or voluntary organisation but who, without extensive preplanning, offers support to the response to, and recovery from, an incident’ (International Organisation of Standardisation, cited in Blythe McLennan, ‘Understanding Models For Spontaneous Volunteering’ (September 2019) 64 Hazard Note (Bushfire and Natural Hazards CRC). Whilst agencies should plan for spontaneous volunteers (Australian Institute for Disaster Resilience, Communities Responding to Disasters: Planning for Spontaneous Volunteers (Australian Disaster Resilience Handbook Collection, Handbook 12, Commonwealth of Australia, 2017) not everyone does and the planning and incorporation of spontaneous volunteers can be difficult.  Often its easier to ask them to leave as their presence may interfere with the plan.

Some organisations and leaders will be better prepared and more open to recognising people who turn up, with special skills, than others. Some evacuation centre operators may say ‘great, there’s a space, set up a clinic, what do you need?’ Others might say ‘we’ve got this covered, the ambulance service manage this, thanks for your help but we’re good’.  And others may be anywhere in between.    And some doctors will say ‘ok, we’re out of here’ and others will say ‘I don’t need your permission to treat patient’s I’ll do what I need to do’ and others will be somewhere in between.

The quote in the ABC story, attributed to the CEO of Victoria’s Rural Workforce Agency, Trevor Carr is apposite.  He:

… said he understood the concerns of local doctors wanting to help when emergencies happened, but it had to be done in a co-ordinated way.

“We need to have a command structure, because otherwise things just turn to chaos,” he said.

“I think one of the challenges is when the emergency is actually in play, the emergency command structures don’t necessarily take into account private individuals. And of course a lot of general practitioners are in private business.

Conclusion

If GPs are not part of the plan, they don’t have a predefined role.

If they don’t want to be spontaneous volunteers – if they want to be involved in pre-planning – they cannot just wait and assume someone will call.  They need to be getting involved via their peak organisations during the non-emergency times.  They need to be advocating for a place on the Local, Regional and State Emergency Management Committees and making sure that they have a defined role for the next emergency.

A correspondent has written and said:

I can only assume that your all over the payments for Rural Fire volunteers for lost wages for the National fires however QLD has also added SES Volunteers into the payments. Perhaps this will become a national decision to widen the opportunity for all emergency service volunteers.

The following link from the QLD Government today has the entire process.

http://www.qld.gov.au/VolunteerCompensation

I cannot see if there’s been any change in the Commonwealth’s position since the initial announcement (Prime Minister, New Payments to Support NSW Volunteer Firefighters (29 December 2019)).  He said (emphasis added):

Volunteer firefighters will receive financial support from the Morrison Government for loss of income, where they have been called out for extended periods of service.

Other State and Territory governments are invited to enter into a similar scheme based on their assessment of need and the demands on their volunteer effort from their own fire seasons. Other requests for assistance will be assessed on their merits.

The web site we have been referred to says ‘Support for QFES Volunteers’.  It doesn’t distinguish between rural fire service and SES volunteers.

There are two things that may have happened here.  First, Queensland asked the Commonwealth to expand the range of eligible volunteers, or and I think this is more likely, Queensland included SES volunteers as they are all part of the same organisation – Queensland Fire and Emergency Services (Fire and Emergency Services Act 1990 (Qld)), hence the reference to QFES, not rural fire service and/or SES volunteers.

Now many will say that this is not the case, that QFES (ss 8-60A) is the paid fire service but distinct from the SES (ss 129-140) and rural fire brigades (ss 79-86).  I have however argued elsewhere that there is a difference between the Queensland Fire and Emergency Service, and the overarching organisation of Queensland Fire and Emergency Services – see Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018).

Queensland can say, rightly, that its SES volunteers and volunteer members of the rural fire brigades are all volunteers in a firefighting organisation – the Queensland Fire and Emergency Services.

A similar argument could be open in South Australia where the SES comes under the umbrella of SAFECOM and the SES and Country Fire Service are both established by the Fire and Emergency Services Act 2005 (SA).  I cannot see any details of how SA volunteers are to claim this money so I do not know who the government claims are eligible.

It would be a much harder argument in NSW where there is no overarching Emergency Services Commission, or Commissioner, and the SES is established by the State Emergency Service Act 1989 (NSW) and the Rural Fire Service by the Rural Fires Act (1997).

But maybe the Commonwealth has agreed to allow the extension, or maybe Queensland is paying for SES volunteers out of its own pocket, or maybe they have extended it to the SES and will wait and see if the Commonwealth objects?

The Prime Minister has already flagged that he is considering a ‘Royal Commission’ to investigate … something to do with the current fires; see Rosie Lewis, ‘Scott Morrison considers bushfires royal commission‘ The Australian (6 January 2020); see also ‘Call for Royal Commission into Australia’s bushfires as government urged to tackle ‘root cause’‘ SBS News (Online) (1 January 2020).

For many years now my colleague Steve Dovers and I have been working on identifying the value (if any) of post event inquiries and of reducing the harm they cause, particularly to first responders.

Our thoughts on how to approach the inevitable inquiry, to try to make it restorative rather than destructive, can be found on the blog ‘Pearls and Irritations’.  You can read it here:

Michael Eburn and Stephen Dovers ‘What sort of inquiry should come after these fires?‘ John Menadue – Pearls and Irritations (7 January 2020).

Back in 2013, when conducting Review of the Fire and Emergency Services Act 2005 [SA], the Hon. Paul Holloway said (at pp 37-38):

Associate Professor Eburn, and Professor Stephen Dovers of the Australian National University have also made an important contribution to the debate on the assessment of emergency service response to major disasters.

They point out that following major events in Australia there has been at least 34 inquiries into bushfires and bushfire management and at least another 14 inquiries into floods, storms, other natural hazards and reviewing emergency management arrangements.

For reasons of brevity, a collection of salient points from their extensive studies is included below:

Australian emergency management policy suffers from a lack of clear objectives or measures of success. This absence means that agencies, governments and citizens cannot identify whether or not policy objectives are being met and whether the emergency services are succeeding in their tasks or not. Emergency Services and governments cannot predict whether the community will see the outcome as success or failure. The situation is further complicated if there is an opportunity to use a tragedy for political advantage.

Goals such as ‘the preservation of life’ are aspirational but not always achievable. It is of fundamental importance that governments explain that emergency management involves balancing competing demands. Governments and communities have to accept that some outcomes are the result of political choices made long before and fire, flood or storm impacted. Further to describe something as ‘political’ is not to suggest that it was inappropriate or made for improper motives; ‘political’ choices are, in the end, the means by which competing values are balanced within the constraints of available resources.

Governments are elected by property owners, but responsible for both ecological preservation and fire management and have to consider the balance between these competing demands. Inquiries do not and cannot consider the budget implications of their recommendation although this is something governments must do.

Strategic Policy is being driven by the litigation blame game so agencies are focussing on ‘what will we be blamed for?’ and ‘who will be blamed?’ rather than how do we improve community safety.

The desire of Commissioners and Coroners to find recommendations to ensure that future tragedies will not occur is understandable, but it implies that they will be able to find the ‘weak link’ that caused the agencies to deviate from their normal, efficient, adequate response and this ‘weak link’ converted what should have been an emergency into a disaster. With that view, the disaster represents, by definition, and always, a failure of the government and the emergency services. The inference is that if we can identify the weakness we can fix it and it won’t happen again.

Disasters are a product of the environment and human choices rather than a failure by government, emergency services, land managers or individuals. Post-event inquiries and processes should be rethought within the frame of lesson-learning rather than seeking fault.

The objective is not that the response was perfect, but that the response went ‘reasonably well under the circumstances’ remembering that ‘excellence is not to be equated with absolute perfection’. (A Schapel, Wangary Enquiry 2007). A review should look to see what went well, so that policy can be developed to do more of the ‘good’, rather than less of the ‘bad’.

A policy and legal reform task could be to establish a ‘lessons learnt’ centre or process with a statutory basis that sufficiently balanced the community’s interests in ensuring that true lessons, including lessons of error or neglect are identified, whilst also protecting members of the emergency services. Processes need to be developed for emergency services such as those used in aviation and medicine, to facilitate open and honest disclosure of errors. An investigation into the conduct of these types of enquiries that maintain public and industry confidence may lead to valuable insights.

The challenge is to enact laws to establish a ‘lessons learned’ centre or process that sufficiently balances the community’s interests in ensuring that true lessons, including the lessons of error or neglect are identified, whilst also protecting members of the emergency services.

No country can resource any emergency service sufficiently to control or combat all hazards, or manage the community response, to prevent all death or destruction. An incident doesn’t become a catastrophe because the emergency services are overwhelmed; rather they are overwhelmed because they are facing a catastrophic event.

Recommendation 19

When judging major incidents in the future, consideration be given to Eburn and Dover’s proposal to establish processes with a statutory basis that sufficiently balance the community’s interests in ensuring that true lessons, including lessons of error or neglect, are identified, whilst also protecting members of the emergency services. Processes need to be developed for emergency services such as those used in aviation and medicine, to facilitate open and honest disclosure of errors.

Reforming how events are reviewed could be a task for the just announced national Bushfire Recovery Agency.

For other related publications see:

• Eburn, M., Restorative inquiries and natural disasters – symposium report (Bushfire and Natural Hazards CRC, 2019)
• ‘Cole, L., Dovers, S., Gough, M and Eburn, M, ‘Can major post-event inquiries and reviews contribute to lessons management?‘ (2018) 33(2) Australian Journal of Emergency Management 34-39.
• Eburn, M. and Dovers, S., Learning For Emergency Services: Looking for a new approach (Bushfire and Natural Hazards CRC, 2017)
• Eburn, M and Dovers, S ‘Reviewing high-risk and high-consequence decisions: finding a safer way’ (2017) 32(4) Australian Journal of Emergency Management 26-29.
• Eburn, M. and Dovers, S., ‘Learning lessons from disasters: alternatives to Royal Commissions and other quasi-judicial inquiries‘, (2015) 74(4) Australian Journal of Public Administration 495–508
• Eburn, M., Hudson, D., Cha, I and Dovers, S., ‘Learning from Adversity: What has 75 years of Bushfire Inquiries Taught us?’ (Paper presented at the 2014 AFAC annual conference; Bushfire and Natural Hazards CRC, 2015)
• Eburn, M. and Dovers, S., ‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire 488-497.
• Eburn, M. and Jackman, B., ‘Mainstreaming fire and emergency management into law’ (2011) 28(2) Environmental and Planning Law Journal 59-76.

To see what has come out of earlier inquiries, search the Bushfire and Natural Hazards CRC’s Disaster Inquiries: Data Discovery Resource.

 

 

I have previously commented on the massive amount of money that has been raised for the benefit of The Trustee for NSW Rural Fire Service & Brigades Donations Fund (see Disaster fundraising for government or charity? (January 5, 2020)).

News reports (‘$10,000 a minute: Celeste Barber spearheads celebrity bushfire appeal’ Sydney Morning Herald (Online) 5 January 2020) are now that this particular campaign has now raised $30 million.  Celeste Barber is quoted as saying:

… the funds raised, initially for the NSW RFS, will also be distributed to Victoria and South Australia, the Red Cross and families of those killed in the fires, to be decided in consultation with NSW RFS.

There is however a problem with that.  As a commentator to this blog has written:

There’s a problem coming up that needs to be addressed: the fundraiser Celeste has now put out on Instagram that she will be splitting up the donations and doling it out to various OTHER charities, not just the RFS NSW. She said people have asked her to give some to the Red Cross, WIRES, Vic and Qld firies, and direct donations to families of firefighters killed in action etc. That is not what my donation was for. I want donations to fund the actual Rural Fire Service of NSW as stated on the fundraising page.

Is that legal? Is that obtaining money for one reason and using it for another, is that obtaining money under false pretences, is that not fraud? Is that right?

This raises two problems. First, a Facebook donation is paid to the nominated charity.  It could not be the case that the person who sets up the donation call can determine where the money goes after it has been paid.  If that were the case Facebook would be a source of fraud; people would set up donation campaigns calling for donations for a cause and then divert the money to themselves or some other cause.

Ms Barber’s fundraising page says:

Fundraiser for The Trustee for NSW Rural Fire Service & Brigades Donations Fund by Celeste Barber.

Donations are made to PayPal Giving Fund Australia (ABN 65 106 950 945) and granted to the charity within 90 days, subject to PayPal Giving Fund’s policies

It follows that the donations made will be paid to the beneficiary, not Ms Barber, so Ms Barber cannot determine how the funds will be distributed.  Distribution of the funds, once received, will be a matter for the trustees.

The trust deed is available via the Australian Charities and Not-for-Profits Commission.  The deed says that the trust:

… is established and operated solely for the purpose of supporting the volunteer-based fire and emergency service activities of the Brigades.

Brigades is defined to mean:

all brigades established from time to time under the Rural Fires Act 1997 (NSW) as amended.

It does not include, for example, the brigades of the CFA or CFS.

Paragraph [2.3] says:

2.3 Purpose of Trust

The purpose of the Trust is to pay or apply the income from the Trust Fund, and such parts of the capital from the Trust Fund as the Trustee at any time and from time to time thinks fit as follows:

(a) to or for the brigades in order to enable them or assist them to meet the costs of purchasing and maintaining firefighting equipment and facilities, providing training and resources and/ or to otherwise meet the administrative expenses of the brigades which are associated with their volunteer-based fire and emergency service activities…

(a)[sic]  For authorised investments which are consistent with carrying out the purpose described in the bullet point above

(b) To meet the reasonable costs of the current and continuing operation and management of the Trust.

If the trustees want to divert the money to ‘Victoria and South Australia, the Red Cross and families of those killed in the fires’ they will need to amend their trust deed or somehow justify how that expenditure meets the purposes listed above.

The trust deed does allow for amendment. Clause 11.1 says:

The Trustees may be deed amend the provisions of this Deed including the trust created by this Deed provided that:

(a) the amendment has the approval of the RFS;

(b) no amendment may be made that would, or would be likely to, change the Purpose of the Trust;…

In other words, paragraph [2.3] cannot be amended.

The other problem, as my correspondent has noted, is that some people gave the money with the express intention that it will go to the RFS fund. To divert it now is to not use the money for the purpose for which it was raised.

With over $30 million the trustees will be able to afford legal and accounting advice to see if they can divert the money but it would appear that the deed is very strict, and clear.  I am not an expert in charity or trust law but I note the heading from one law firm – ‘Amending Trust Deeds – It’s Trickier Than It Looks’  – and that’s talking about discretionary family trusts. Amending the deed for a trust that has $30 million donated for a particular purpose would be even trickier.  If they cannot amend the trust deed, then the money must be spent in accordance with the terms of that deed – ie for the benefit of NSW RFS brigades.

Conclusion

It is not simply a matter for either Ms Barber, or the RFS, or the trustees charged with managing the NSW Rural Fire Service & Brigades Donations Fund to redistribute funds ‘to Victoria and South Australia, the Red Cross and families of those killed in the fires’.

If the money has been or will be paid directly to the beneficiary nominated in the fund raiser, then Ms Barber cannot divert it and the trustees can only use the money for the purpose of the trust.  In any case there may be objections from those that donated money. If they, somehow, divert the money to ‘to Victoria and South Australia, the Red Cross and families of those killed in the fires’ those that wanted their money to go to the RFS will be aggrieved.  If they use to help the RFS meet expenditure that otherwise government would have funded those that thought, they will be donating to community relief will be aggrieved.

Further comments on the funding of the RFS

The Office of the Commissioner of the Rural Fire Service is an executive agency within Department of Communities and Justice of the NSW Government (Government Sector Employment Act 2013 (NSW) Schedule 1).   The Rural Fire Service itself is established by the Rural Fires Act 1997 (NSW) and consists of the Commissioner, the employees and volunteers (s 8).  The Rural Fire Service is not a separate legal entity so proceedings by and against the RFS would be brought in the name of New South Wales (see for example, Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45, the decision in a case alleging negligence by the RFS in its handling of the 2003 fires that burned into the Australian Capital Territory and Canberra).

The Rural Fire Service is an essential part of government funded by the government. As noted earlier the Service’s income in 2017-18 was $424 million. The RFS is funded by government, insurers and local government.  Each year the Minister must prepare a funding target for the RFS (s 103).  As part of that process the Minister must the ‘estimated rural fire brigade expenditure for the financial year’ (s 103) and subject to various adjustments (s 108) that is the amount paid to the RFS by the Treasurer (s 106).  A funding target is prepared for each fire district and the local council for that district must pay 11.7% of that funding target (ss 103 and 110) to the State as their contribution to the RFS.

Insurers are required to add an emergency services levy based on the relevant premiums that they collect (Emergency Services Levy Act 2017 (NSW)).  That levy is used to fund Fire and Rescue NSW, the NSW RFS and the NSW SES.

In short, the treasurer funds the RFS but receives back the levy imposed on local councils and the levy charged on relevant insurance policies.

The RFS is well funded and claims that its budget has been cut have been refuted – (‘Cuts to firefighting budgets described as “rubbish” Fire Commissioner Shane Fitzsimmons’ 7NEWS 10 November 2019; ‘Jodi McKay says the NSW firefighting budget is facing a $40 million cut. Is that correct?’ RMIT ABC Fact Check (9 December 2019)).

Spending the donated trust monies

Having said that the ‘government’ does not decide how the RFS budget is spent. The money goes to the RFS and the RFS makes decisions on how to spend it. The choice of what equipment is supplied to volunteers is a decision of the RFS not the Premier and Cabinet. A donation of $30m (or more) to the Central Fund is a donation to be spent on RFS purposes. The RFS, not the brigades, will (in collaboration with the trustees and in accordance with the trust deed) decide where the money is spent.

Throwing $100 into a bucket held by a local firefighter would see that money spent by that brigade, perhaps that day. $30m donated to the central fund is quite different.  It is up to the trustees to determine how it is spent but it will be the RFS that seeks to access the money.  What the RFS choses to spend it on, provided it is ‘to meet the costs of purchasing and maintaining firefighting equipment and facilities, providing training and resources and/ or to otherwise meet the administrative expenses of the brigades’ is up to the RFS.  It will not be up to the trustees to independently decide to supply to brigades equipment that the RFS has chosen, for whatever reason, not to supply.

If the RFS says ‘great, let’s supply respirators that we weren’t providing before’ they could ask the trust to fund that. But the RFS says that the reason it is not supplying respirators is that it hasn’t done the assessment required and they think PS2 masks are adequate; not because they haven’t got the money (see Donated respirators for RFS firefighters (December 29, 2019)). Brigades may ask the RFS to supply equipment that could be funded from the donation, but there is no guarantee that the RFS will start supplying material that is not currently supplying where the choice is made on grounds other than money.

Those that make claims that ‘the government is not supplying this equipment so now we can’ miss that crucial point.  The government does not supply the equipment, the RFS does. Donating money to the RFS gives the RFS more money but does not have to change their purchasing decisions and it will be up to RFS, not local brigade volunteers, to determine how the money is spent. Though, granted, the trustees with $30m to spend may have significant capacity to influence spending decisions.

The trustees are used to dealing with income of around $1m (see https://www.rfs.nsw.gov.au/about-us/fundraising/brigades-and-donations-fund-reports).  To receive and deal with $30m will require quite a change in mind-set and significant advice.  The likelihood that it will be spent during this response is very low.  Apart from the need to actually consider what the money might be spent on, the RFS is not a recovery agency that will be spending money over the next 2 years rebuilding communities.  Once the fires are out no doubt this money will be invaluable for replacing equipment, restoring fire sheds and investing in equipment for the next fire. But (subject to what was said above about amending the trust deed) it won’t be available for community recovery.

If I was one of the trustees (and I’m not) this would be the stuff of nightmares.  They are going to receive $30m with expectations that it will be spent quickly and in ways that they cannot meet.

And there is the risk that The Chaser have it right – in their satirical piece, Morrison deploys emergency marketing squad to bushfire affected areas (5 January 2020), they envisage the Prime Minister launching:

… a brand new ad campaign highlighting the various benefits these fires are bringing our country, like the global media coverage, the photography opportunities, and the huge amount of money being donated to the RFS. In fact, it’s raised so much money we might be able to just privatise the whole thing and finally get it off the government teat. How good is that!”

I’m sure the NSW government would not want to privatise the RFS, but come the next budget round, $30m in discretionary funding may well affect how much the Treasurer wants to pay.

Conclusion

As I understand it this particular campaign, started by Ms Barber was to raise a small amount for her local RFS brigade.  A commendable desire as is the desire of all those that have donated.  However, despite the good intentions the desire to divert what is now a massive amount of money to ‘to Victoria and South Australia, the Red Cross and families of those killed in the fires’ will be much easier said than done.

I fear that many people who have donated to this campaign will not see the money spent in a way that they hoped it would be, and will not see it spent during the peak of the response and immediate recovery.

Today’s correspondent says

I recently read how Mick Keelty recommended a federal body loosely based upon the NZ model set up after their earthquakes.  I see people claiming that it would be unconstitutional because of state rights, is that correct?

I’m not sure where that recommendation was made or what was said.  The Sydney Morning Herald (‘People are looking for someone to blame and right now the PM’s in their sights’ (2 January 2020) reports:

Former Australian Federal Police commissioner Mick Keelty was tasked by the federal government to look at water and drought. He put an idea to government as early as September, proposing a national body to deal with disaster response. Keelty wanted it modelled on the New Zealand Earthquake Commission, which joins up all levels of government, defence and private contractors to reduce response times when a crisis hits.

I’m not sure about that description of the Earthquake Commission. According to its website it provides insurance, research and education.  It is not a response agency.

The Commonwealth has the power to make laws with respect to insurance (Australian Constitution s 51(xiv)) and the Commonwealth is extensively involved in funding research (Victoria v Commonwealth [1975] HCA 52).

I cannot see any constitutional barrier to the Commonwealth establishing ‘a national body to deal with disaster response … modelled on the New Zealand Earthquake Commission’ as described on the Commission’s website but I cannot see how that organisation is a ‘disaster response’ organisation or how it  ‘joins up all levels of government, defence and private contractors to reduce response times when a crisis hits’.

It seems to me that he may have intended or been referring to New Zealand’s National Emergency Management Agency. There are indeed limits on what the Commonwealth could do in this area.  The website says:

The National Emergency Management Agency will work across central government and with local government, emergency services, communities, iwi, lifeline utilities and business to create an emergency management system that is ready and able to provide an effective and integrated response to, and recovery from, emergencies.

Emergency Management Australia is part of the Commonwealth government although it does not have a statutory basis.  EMA works to manage the Commonwealth’s response subject to those limitations (see What is a ‘national emergency’?  (December 25, 2019)).  The role of EMA could be put into legislation as could details of how and when the Commonwealth will respond (see Andrew Gissing and I, ‘Australia needs a national crisis plan, and not just for bushfires’ The Conversation (13 December 2019)).  It would not look like the New Zealand Act because Australia does have states.

For further discussion see my article: ‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102.

“An online campaign led by comedian Celeste Barber to raise money for volunteer firefighters has raised more than $10 million” reports Andrew Taylor in the Sydney Morning Herald (4 January 2020).  That is indeed amazing and from what I have seen the money will go to The Trustee for NSW Rural Fire Service & Brigades Donations Fund.

I have previously written about NSW Rural Fire Service brigades and their ability to raise funds in their own name – see Should a NSW RFS brigade retain its incorporated status? (February 16, 2018) and the posts that are linked there.  Because brigades are not legal entities, there is a single NSW Rural Fire Service and Brigades Donations Fund (see https://www.rfs.nsw.gov.au/about-us/fundraising). The fund was established by the RFS and is managed by the trustees.   The Trust’s 2017-2018 annual report says:

The purpose of the Trust is to make available to brigades the ability to accept tax-deductible donations, both in person and online, with as little administrative burden as possible. It was established and is operated solely for the purpose of supporting the volunteer-based fire and emergency service activities of the brigades.

Further, the Trust, as described in the Deed, is to pay or apply the income or capital from the Trust Fund, and such parts of the capital from the Trust Fund as the Trustees at any time and from time to time think fit as follows:

• To or for the brigades in order to enable them or assist them to meet the costs of purchasing and maintaining firefighting equipment and facilities, providing training and resources and/ or to otherwise meet the administrative expenses of the brigades which are associated with their volunteer-based fire and emergency service activities…

The entire donation pool in 2017-18 was $768,044.00, less than one tenth of the amount raised by Ms Barber.

The trust is registered with the Australian Charities and Not for Profit Commission. The registration page says that the trust helps ‘People in rural/regional/remote communities; Victims of disaster; General community in Australia’.  It does this by utilising donated funds ‘to purchase equipment for use by NSW Rural Fire Brigades across the State.’  An equipped brigade assists the community

The Trust is very specialised, it does not make direct payments to those affected by the disaster.  Rather it receives donations made to individual brigades that are then used for the benefit of that brigade. It also receives funds donated to the RFS which are held in a Central Fund. One cannot imagine that Ms Barber is going to nominate which brigades are to receive money so I would infer this donation will go to the Central Fund to be used for the benefit of brigades across the state.

The RFS is of course a state government agency funded by the state government, local councils and insurers (Rural Fires Act 1997 (NSW) Part 5).  My reading of the annual report of 2017/18 is that the RFS had an income of $424 407 000 (ie $424 million) and expenses of $370 504 000 ($370 million).  Interestingly there have been demands for better funding for the RFS. Commissioner, Shane Fitzsimmons has said that despite claims, the RFS budget has not been cut, and ‘we are enjoying record budgets’ (‘Cuts to firefighting budgets described as “rubbish” Fire Commissioner Shane Fitzsimmons’ 7NEWS 10 November 2019).

Discussion

I’m all for community fundraising and supporting local fire brigades but I do hope people understand what they are donating too.  Fire brigades in Australia are largely government funded.  True enough brigades solicit donations, but the bulk of material is provided, and expenses are met, by government and the insurance sector. A $10 million donation to the Trustee for NSW Rural Fire Service & Brigades Donations Fund will provide a massive pool to support brigades but some may view it as funding a service that governments should and do fund – see Ros Gittins ‘Why I didn’t donate to the Rural Fire Service this time around’ Sydney Morning Herald (Online) 1 January 2020.

As I say I’m all for people making donations and choosing who they wish to donate to. Donating to the RFS is commendable given the work that the RFS does.  My point in this post is to argue, to those that perhaps don’t understand, that the RFS is not an organisation run by volunteers and funded by community donations.  The RFS is not a volunteer organisation, it is a government organisation that relies on volunteers.  No doubt the trustees, the RFS and brigades that benefit from the fund will put $10 million to good use and the trustees of the fund will do their best to ensure that it is well spent to advance the RFS abilities in coming years but people should understand, before they make their donation, that fundamentally they are making a donation to the NSW government.

The big news is the decision of the government to ‘call out’ the Australian Defence Force reserves as part of the response to the current fire emergencies.  A photo of the Governor-Generals order is above (though it is too small to read; sorry) and details of what it will mean are published on the Defence Reserves Support website.

Section 28 of the Defence Act 1903 (Cth) says:

(1)        The Governor‑General may, by call out order published in the Gazette, call out some or all of the Reserves for continuous full time service.

(2)        A call out order is not a legislative instrument.

(3)        However, a call out order may only be made in circumstances (whether within or outside Australia) involving one or more of the following:

(a)        war or warlike operations;

(b)       a time of defence emergency;

(c)        defence preparation;

(d)       peacekeeping or peace enforcement;

(e)        assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia’s national security or affecting Australian defence interests;

(f)        support to community activities of national or international significance;

(g)        civil aid, humanitarian assistance, medical or civil emergency or disaster relief.

Clearly this call out will be justified by reference to s 28(3)(g).

Neither the Constitution nor the Defence Act authorises the Commonwealth to take control of the emergency response or move ‘from responding to assistance requests from states to actively leading elements of the bushfire response (‘PM calls up reservists for firefighting effort’ Sydney Morning Herald (Online) 4 January 2020).

The Australian Constitution does provide, relevantly, that:

• The Commonwealth can make laws with respect to ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’ (s 51(vi)); and
• The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence (s 119).

Clearly this call out is not protecting the states against invasion or domestic violence, nor is it required ‘to execute and maintain the laws of the Commonwealth’.

There are provisions to call out the defence force to meet those constitutional responsibilities.  The notes provided as part of the ‘simplified outline’ to Part IIIA of the Defence Act say

There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders…

Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self‑governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor‑General makes a Commonwealth interests order.

A State or self‑governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.

Two significant publications – Michael Head “Calling Out the Troops – Disturbing Trends and Unanswered Questions” (2005) 28(2) UNSW Law Journal 479 and Cameron Moore Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (ANU Press, Canberra, 2017) – do not address the use of the defence force in domestic civil emergencies rather they focus on the use of force by the ADF within Australia.

Discussion

The power to call up the reserves cannot expand the Commonwealth’s authority.  The reserves may be called out for full time service with the ADF but that does not expand what the ADF may be used for or when the Defence Force may be ‘called out’.  In effect the reserves can be called up to sit in their barracks.  There is not (and I would argue could not be a legitimate) call out of the Defence Force under Part IIIA of the Defence Act so the ADF itself must continue to operate as it has been, as a support to the civil community.

It therefore begs the question of what does the Prime Minister mean when he says the Commonwealth will be ‘actively leading elements of the bushfire response’?  The article in the Sydney Morning Herald cited above says HMAS Adelaide is to be ‘stationed off the coast along the NSW-Victorian border’ and that

The deployment will assist with any ongoing evacuations, particularly in isolated communities; offer support to evacuation centres, and assist in the recovery effort in fire-hit towns, including cutting containment lines into bushland around live fire grounds.

That sounds like pre-deployment in order to be able to meet requests for Defence Aid to the Civil Community (or DACC).  As noted elsewhere, the defence force does provide assistance to the states (see Paying for Commonwealth assistance (January 4, 2020) and The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)) but that assistance does depend on a request.  The reservists having been called to full time duty mean there is a significant resource that may be called upon, but it does not expand the Commonwealth’s authority.

For the Commonwealth to deploy the ADF reserves into states to act without a request from the affected state it would have to argue that the response was necessary to protect a Commonwealth interest.  I have argued elsewhere that these disasters do not yet constitute a national emergency that would justify unilateral Commonwealth action (see What is a ‘national emergency’? (December 25, 2019)).

An alternative is that the Commonwealth could just start doing things – eg arrange to drive a bus into a town and offer to take out anyone who wants to go, without reference to the states or the incident management team. In effect the Commonwealth might put itself in the position of a spontaneous volunteer trying to meet a need as it perceives it; with all the complexity that spontaneous volunteers’ cause emergency managers.

Perhaps the Commonwealth will seek to ‘actively [lead] elements of the bushfire response’ by virtue of Catch-22.  In the famous book by Joseph Heller (Catch 22 (Vintage Books, London, 2011), p. 467) Catch-22 is described by a woman recounting an act of violence by soldiers:

… ‘Catch-22 says they have a right to do anything we can’t stop them from doing.’

What the hell are you talking about?’ Yossarian shouted at her in bewildered, furious protest. ‘How did you know it was Catch-22? Who the hell told you it was Catch-22?’

‘The soldiers with the hard white hats and clubs. The girls were crying. “Did we do anything wrong?” they said. The men said no and pushed them away out the door with the ends of their clubs. “Then why are you chasing us out?” the girls said. “Catch 22,” the men said. All they kept saying was “Catch-22, Catch-22.” What does it mean, Catch 22? What is Catch-22?’

‘Didn’t they show it to you?’ Yossarian demanded, stamping about in anger and distress. ‘Didn’t you even make them read it?’

‘They don’t have to show us Catch-22,’ the old woman answered. ‘The law says they don’t have to.’

‘What law says they don’t have to?’

‘Catch-22.’

If the Commonwealth behaves as if it has power to be ‘actively leading elements of the bushfire response’, and others comply, then it has a defacto power.  And if the Commonwealth purports to act and no-one stops them, then they have the power to act – Catch-22.  (Noting that acquiescence or consent does not create a legal power or establish a precedent for the future, the Constitution cannot be changed by consent).

Conclusion

Calling up the reserves may be good politics but there has been no suggestion that the ADF has been unable to meet requests for DACC with permanent troops and reserves who have volunteered to serve so it is not clear why it is required. The reservists will form a significant and capable pool of people who can respond to requests, but they are not going to be in a position to step in and replace firefighters or take control from state agencies.  As the ADF itself says ‘The ADF is not trained, equipped or certified to undertake ground-based or aerial bush firefighting and does not get involved in the direct act of fighting bushfires outside Defence property’.

The current disaster is not ongoing because of a lack of resources or a lack of leadership. As RFS Deputy Commissioner Rob Rogers said, back on 7 December 2019 “We cannot stop these fires, they will just keep burning until conditions ease, and then we’ll try to do what we can to contain them” (‘Australia bushfires north of Sydney ‘too big to put out” BBC News (Online) 7 December 2019).    We have seen interstate resource sharing and extensive assistance from the Commonwealth. It is hoped that the entire response will continue to be managed in a cooperative way with control vested in the state agencies supported by the Commonwealth.  If the Commonwealth wants to get into a showdown with the states as to who is in charge it will put at risk years of experience in emergency management and the arrangements that have and continue to serve Australia well.

This question was received as a comment to the post What is a ‘national emergency’? (December 25, 2019) but I thought it deserved a post in its own right.  The question is:

Under the existing arrangement where states declare the emergency situations, who pays for what? Are all federal provisions free? The reason I ask is that I’m a student of an emerging new economic school of thought known as modern monetary economics. An outcome of this economics is that it identifies that currency issuing governments, so our federal govt, can essentially afford anything that’s for sale in its currency, so Australian dollars. State governments however are still constrained by the normal having to get dollars and not spending more than they get. So I wonder if both NSW and Vic are at the moment going as hard as they can or do they have some fear of the costs. In a modern monetary economic world, being able to declare a national state of emergency would/should trigger the supply of money and resources to the states to fight these things that is far greater than any state would currently be game to attempt now, lest it runs up a big loan to the banks and is stuck with interest burden as well.

There are two relevant answers to that question. The first relates to the Disaster Recovery Funding Arrangements (formerly the Natural Disaster Relief and Recovery Arrangements (NDRRA)) and the second to the direct delivery of commonwealth support, such as military support as part of the response and recovery arrangements.

Disaster Recovery Funding Arrangements

Each jurisdiction has two thresholds (Department of Home Affairs, Disaster Recovery Funding Arrangements 2018 (Commonwealth of Australia, 5 June 2018; p. 12):

The first threshold is 0.225 per cent of the state’s total general government sector revenue and grants in the financial year two years prior to the relevant financial year; and the second threshold is 1.75 times the state’s first threshold.

Where expenditure on eligible relief and recovery assistance measures exceeds the first threshold, but is less than the second threshold, the Commonwealth reimburses 50% of that expenditure.  Once the expenditure reaches the second threshold the Commonwealth reimburses 75% of the expenditure over that threshold.

To trigger the Disaster Recovery Arrangements the jurisdictions do declare that an event is a ‘natural disaster’.  Paragraph [5.1] says:

When a natural disaster occurs and the relevant state knows, or expects, the natural disaster to be an eligible disaster the state must notify the department of that fact within three (3) months.

A declaration that an event is a ‘natural disaster’ for the purpose of the Disaster Recovery Arrangements is unrelated to a declaration of emergency or disaster.

Commonwealth physical assistance

The second answer relates to the delivery of commonwealth assistance eg the use of Australian Defence Force resources.  Providing direct commonwealth assistance is managed under the Commonwealth Disaster Response Plan (COMDISPLAN).  That plan says:

4.1.1    The Australian Government does not normally seek financial reimbursement from jurisdictions for assistance provided under COMDISPLAN. However, when Australian Government assistance is provided for tasks not directly related to the safety of life and property or that could be handled by jurisdiction resources (e.g. clean-up teams) the Australian Government may seek reimbursement from the affected jurisdiction.

4.1.2.   Unless the Task Request to the agency clearly states that costs are recoverable, costs incurred to fulfil the request will be absorbed by that agency…

Assistance by the Australian Defence Force is governed by the Defence Assistance to the Civil Community Manual (First ed, 2012).  (The manual is not restricted. I obtained a copy of the manual via an FOI request in 2016.  I can find no reference to suggest that there is an updated version but, equally, I cannot confirm that this is the latest issue.  In any event I have uploaded a copy of the DACC Manual, as amended to 17 April 2015, here – DACC Manual).  Paragraph [1.11] says that defence assistance to the civil community (DACC):

… is divided into two classes, emergency and non-emergency, and comprises six categories as follows:

a. Emergency Assistance:

(1) Category 1—local emergency assistance (DACC 1);

(2) Category 2—significant emergency assistance (DACC 2); and

(3) Category 3—emergency recovery assistance (DACC 3).

b. Non-emergency Assistance:

(1) Category 4—significant non-emergency assistance (DACC 4);

(2) Category 5—local non-emergency assistance of a minor nature (DACC 5); and

(3) Category 6—law enforcement non-emergency assistance (DACC 6).

(Further details of what is included in each category is provided at [2.12]).  Paragraph [2.31] says:

2.32     The policy for cost recovery is as follows:

a. DACC 1 and 2—no cost recovery (unless DACC recipient agrees to pay costs of support);

b. DACC 3, 4 and 6—direct cost recovery (unless a cost waiver/variation is approved);

c. DACC 5—no cost recovery for community or charitable groups up to a net additional cost of $2500, if amount exceeds the net additional costs of $2500 then the support must be categorised and processed as DACC 4.

The list of assistance that Defence is, and has been providing to the current fire emergencies identifies that nearly all of that assistance is DACC 1 or 2.

There has been some DACC 4 assistance provided in accordance with standing arrangements. These are identified as arrangements with the NSW government to allow the Large Aerial Tanker and other aircraft to use RAAF Base Richmond, RAAF Base Williamtown and the Naval Air Station Nowra and arrangements with Western Australian government and the use of RAAF Base Pearce.

It follows that one would expect that all the DACC 1 and 2 assistance (eg the use of the Navy to evacuate Mallacoota, the use of the Air Force to transport firefighters etc) is being provided at no cost to the states and territories.

There may be cost recovery for the DACC 4 assistance (ie the use of the RAAF air bases and Naval Air Station Nowra) if that is consistent with the pre-arranged agreement unless a cost waiver/variation has been approved.

Relationship between Disaster Recovery Funding Arrangements and COMDISPLAN and state declarations of emergency or disaster

Neither the Disaster Recovery Funding Arrangements nor COMDISPLAN require that the states make a formal declaration of emergency or disaster before they come into operation.  The declaration of emergency or disaster by the states and territories is to trigger special emergency powers vested in the Minister or State/Territory controller to manage the response. The declarations do not relate to the arrangements between the Commonwealth and the States.

Conclusion

Whilst I cannot conclusively confirm it, I anticipate that the current Commonwealth assistance to the states and territories arising out of the bushfire emergencies is being provided at no cost to the affected states in accordance with COMDISPLAN. Even if there is a cost, the Commonwealth is likely to meet 50-75% of that cost in accordance with the Disaster Recovery Funding Arrangements.

It has been announced that Queensland has joined the scheme to pay volunteer firefighters $300/day during deployment to the current fire emergency – Stuart Marsh ‘PM Scott Morrison extends $6000 volunteer firefighter payments to Queensland‘ 9News (31 December 2019).

For discussion of the scheme see:

• Compensating volunteer firefighters (December 31, 2019); and
• Commonwealth to pay NSW to reimburse firefighters (December 29, 2019)

 

A further State of Emergency has been declared for NSW. For details of what that means, see Emergency declarations for NSW and Queensland (November 11, 2019).

 

The Premier of Victoria has declared a ‘state of disaster’ pursuant  to the Emergency Management Act 1986 (Vic) s 23. The declaration applies to ‘six Local Government Areas and the Alpine Resorts’.

As a result of that declaration (s 24)

… the Minister [for Emergency Services] is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.

The declaration allows the Minister to:

(a) direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility

And, in a provision that is I think unique to Victoria:

(b)     if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

That is the Minister can direct any department to depart from ‘business as usual’ and can suspend any Act or regulation if compliance with that Act or regulation would inhibit the response to or recovery from the disaster.  That is significant executive power vested in a single Minister.

Today’s question is about:

… the definition of a fire brigade vehicle as an emergency vehicle in the Road Traffic Code 2000 (Western Australia).  The use of the word “or” confuses me. How is it meant to be interpreted?

“Of a fire brigade on official duty in consequence of a fire or an alarm of fire or of an emergency or rescue operation where human life is reasonably considered to be in danger;”

Or where the last portion “where human life is reasonably considered to be in danger” refers also to the first part.  The reading of the definition strikes me as… vague?  Looking as a layman only of course.

And also, we are led to believe the exemptions in the Code do not apply where road works are present or on private property (where I would think none of the Code is relevant?).  Re: road works it is arguable of course that it is appropriate to use exemptions under 281(1)(a)(ii) but it is not unusual to be waved through onto a closed section of the road by roadworkers or the roads are not being worked on at the time (late night/morning/weekends for example).  Is it referred to (and technically not exempt) elsewhere?

Definition of emergency vehicle

The Road Traffic Code 2000 (WA) r 3 says:

emergency vehicle means a vehicle — …

(b) of a fire brigade on official duty in consequence of a fire or an alarm of fire or of an emergency or rescue operation where human life is reasonably considered to be in danger;

The question is, is the definition to be read as:

Interpretation A

a vehicle — …

(b) of a fire brigade on official duty in consequence of

(i) a fire; or

(ii) an alarm of fire; or

(iii) of an emergency; or

(iv) rescue operation where human life is reasonably considered to be in danger;

or as

Interpretation B

a vehicle — …

(b) of a fire brigade on official duty in consequence of

(i) a fire; or

(ii) an alarm of fire; or

(iii) of an emergency; or

(iv) rescue operation

 where human life is reasonably considered to be in danger

In other words does the requirement ‘where human life is reasonably considered to be in danger’ apply to all the matters listed in (i) to (iv) above, or only to a ‘rescue operation’.

Deciding what interpretation applies would be a matter for a court should the issue arise. Imagine a situation where a fire brigade has been called, during winter, to a fire in a garbage bin in a roadside rest area.  The brigade has to do a u-turn to pull up at the fire.  Rather than stop and give way to oncoming traffic the driver activates the warning beacons and siren and does a u-turn giving the oncoming driver of a police car to have to take evasive action to avoid a collision. The police officer issues an infringement notice for failing to make a u-turn with safety contrary the Road Traffic Code 2000 (WA) r 32.

If I was the lawyer for the driver, I would argue that the exemption for emergency vehicles (r 281) applies because the driver was responding to a ‘fire’ and therefore this was an emergency vehicle (relying on the interpretation at ‘A’, above).  If I was the lawyer for the prosecution, I would argue that the vehicle was not, at that time, an emergency vehicle as the driver was not responding to a fire where human life is reasonably considered to be in danger (relying on the interpretation given at ‘B’ above).

Driving under emergency response conditions (lights and sirens and asking other road users to give way and make way for emergency vehicles) imposes risk to the emergency vehicle driver and other road users.  That can be justified where ‘human life is reasonably considered to be in danger’.  If however the interpretation in ‘B’, above, is correct, that is however a significant limitation where the emergency is posing a risk to property only for example a call is to a fire in an unoccupied but important heritage building.

The issue may however never arise. In the fire-in-the-bin scenario described above, a judge may accept that the driver of the fire appliance is driving an emergency vehicle but given he or she was responding to a bin fire, in winter, where there is no risk to human live then it is not ‘reasonable that the provision [r 32] should not apply’ and/or given the oncoming driver had to take evasive action the fire appliance driver was not taking reasonable care and so the exemption in r 281 does not apply.

Ultimately in the absence of a reported decision by a court, the interpretation to be applied is open to argument.

Exemption for emergency vehicles at road works

I have no idea why my correspondent is ‘led to believe the exemptions in the Code do not apply where road works are present …’  There is nothing in the Road Traffic Code to say that.  It may be a direction from the fire service that in the view of the service it is not reasonable to rely on the exemption in 281 in those circumstances.  Remember however that the exemption in r 281 only refers to other rules in the Road Traffic Code.  If entering a closed road or doing other things in road work areas is an offence under other legislation, then the r 281 exemption won’t apply.

Private Property

As for private property, the Road Traffic Code 2000 (WA) only applies on a road (r 4).  A road is ‘any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it’ (Road Traffic (Administration) Act 2008 (WA) s 4).  The critical issue is whether the road is ‘open to, or used by, the public’ not who owns it, so a private road is still a road; but driving on say farmland behind a closed gate is not a road and the Code does not apply.

Conclusion

How the definition of emergency vehicle as it applies to a fire brigade appliance is not clear.  One can imagine scenarios where interpretation A or B, above makes sense. It would, ultimately be a matter for the court of appeal to decide but it unlikely to ever get before the court, but it might – see for example, Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).

There is nothing in the Road Traffic Code to say the exemption in r 281 does not apply where road works are present.

The Road Traffic Code only applies on a road.  A road may be on private property but in the way most people think about private property (eg on a farm paddock) then it’s true that the Code does not apply.

 

The Emergencies Act 2004 (ACT) provides for the appointment of an emergency controller, a declared ‘state of alert’ (s 151) and a declared ‘state of emergency’ (s 156).

Appointment of emergency controller – no state of emergency

Pursuant to the Emergencies Act 2004 (ACT) s 150A, the Acting Chief Minister has appointed the Commissioner of the Emergency Services Agency (ESA), Georgeina Whelan as the Territory Emergency Controller.  This appointment is made even though there is, as yet, no declared state of emergency.

As the Emergency Controller, Ms Whelan is to

(a) to manage the response to, and the recovery from, the emergency by ensuring that entities dealing with the emergency are appropriately deployed;

(b) to coordinate the disposition of other resources to manage the emergency;

(c) to advise the Minister and the Chief Minister about the emergency;

(d) to advise the community on anything relating to the emergency that the emergency controller considers appropriate; [and]

(e) any other function given to the emergency controller under this Act or another territory law.

In this role she can exercise emergency powers (s 150C) including commandeering private assets and performing all the emergency management functions of the chief officers of the ACT emergency services (Fire and Rescue, Rural Fire Service, SES and ACT Ambulance).

State of Alert

A state of alert has also been declared for the ACT.  The declaration by Mick Gentleman MLA, Minister for Police and Emergency Service says:

Pursuant to s 151 of the Emergencies Act 2004 being satisfied an emergency is likely to happen and the Acting Chief Minister has not declared a state of emergency exists in relation to the emergency I DECLARE that a state of alert exists in the whole of the Australian Capital Territory

A state of alert is made in the absence of a declared state of emergency and comes to an end if a state of emergency is declared.  As the name suggests, a state of alert is intended to warn the community of risk.  It does not give anyone emergency powers or authority.  During the period of a state of alert ‘… the Minister must give the community regular situation reports, and other reports, in accordance with the community communication and information plan’ (s 154).

State of Emergency

A state of emergency is declared by the Chief Minister.  If a state of emergency is declared (s 159) ‘The Chief Minister must appoint a person to be the emergency controller for a declared state of emergency.’  Unlike other jurisdictions the person who takes on the role of emergency controller is not pre-defined.  That is in many jurisdictions the state controller is an office holder, for example the Commissioner of Police. In the ACT the Chief Minister can appoint whoever is the most appropriate person given the nature of the emergency.

An emergency controller appointed under s 150 is taken to be the emergency controller unless another person is appointed to that role (s 159(2) and (3)).

The emergency controller is ‘required to manage the response to, and the recovery from, the emergency by ensuring that entities dealing with the emergency are appropriately deployed’ (s 160). The emergency controller may exercise various emergency powers (s 160A).  Interestingly s 167 says:

During an emergency for which an emergency controller is appointed, a person must not deploy Territory resources outside the ACT, in relation to an emergency outside the ACT, without the approval of the emergency controller.

In other words if, for example, a state of emergency were declared the Chief Officer – Rural Fire Service could not deploy ACT resources to assist in NSW without the emergency controller’s approval.

 

 

 

 

 

I have previously reported on the Commonwealth’s scheme to compensate firefighters for lost income during the current fires in New South Wales – see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019).

It has been reported that this is not the first time this has happened. 9News said (‘Morrison under pressure to offer income payments to volunteer firefighters’ (27 December 2019)), before the announcement was made:

Prime Minister Scott Morrison is under pressure to follow in the wake of former Prime Ministers by offering relief payments to volunteers fighting the country’s bushfires.

Under the Social Security Act of 1991, an Australian government can provide a form of income support for firefighters if a major disaster is declared.

In 1994, then-PM Paul Keating used the law to pay firefighters after bushfires in Sydney saw more than 200 home lost and four people killed.

In 2001, Liberal PM John Howard used the law to compensate volunteers who suffered a loss of income following the devastating Black Christmas fires.

I have tried to find some reference to those earlier payments.

1994

In an interview on 10 January 1994, then Prime Minister Keating said:

The Government has today substantially increased the disaster relief payment under the social security system, which will triple it in many cases for families, to just under $2000 and over $1000 for a single person. Now, this will be paid to people who have had their homes damaged or whose income has been severely dislocated – for instance firefighters who’ve not been paid by their employers would qualify.

During the interview he was asked:

J: How will people be assessed?

PM: This payment is not income tested or asset tested. It Is only on the basis of whether their homes have been damaged or destroyed, whether they have suffered material income loss in the course of the fire or fighting the fire. So, for instance, it won’t be paid to somebody who has simply been evacuated and is coming back t0 their house which is undamaged. But it would be paid to others who have suffered an employment loss or loss of Income.

J: will this include volunteer firefighters who have lost income?

PM: It will include volunteer firefighters who have lost income. Volunteer firefighters who’ve income or have not been paid by their employer – we would be able to pay them this payment.

(I infer “J”, in infer, means ‘journalist, as the person conducting the interview is not named).

The Disaster Relief Payment was provided for in the Social Security Act 1991 (Cth). In 1994 the Act provided a person qualified for a disaster relief payment if, as a result of a major disaster, ‘there is a significant interruption to a person’s source of livelihood’ (s 1061K; as at 10 January 1994). As the Prime Minister noted, the value of the payment was based on ‘a formula and It would depend on whether someone is single, married or with children and it rises accordingly. With two children under 13 it’s about $ 2000, roughly.’

It would appear that in 1994 there was no a specific move to ‘extend’ payments to firefighters. Once the fires were declared to be a major disaster, firefighters were eligible to claim the money if they could show a significant interruption to [their]… source of livelihood’. In the interview cited above, the Prime Minister was announcing an increase in the value of the payment, not an extension of who was eligible.

2001

The only reference I can find to these payments is in a ruling, issued on 13 June 2003 by the Australian Tax Office (the ATO), on whether benefits paid under the Volunteer Firefighters Emergency and General Assistance payment were taxable. That ruling says (emphasis added):

Ex gratia payments were made by the Department of Family and Community Services, through Centrelink, under a Volunteer Firefighters Assistance Package.

These payments were made as Emergency and General Assistance payments and were paid at the rate of $160 per day. They were paid to compensate volunteer firefighters for the loss of income they sustained while fighting bushfires in New South Wales.

The payments were made to those firefighters who met the following criteria:

• they were a member of a recognised firefighting organisation
• they suffered a loss of income while fighting the fires, and
• they fought the fires during the ‘declared period’ of 24 December 2001 to 16 January 2002.

The taxpayer was a volunteer firefighter who met these criteria and received an Emergency and General Assistance payment from Centrelink.

The ATO’s ruled that payments received by firefighters were counted as taxable income.  The ruling said:

As an Emergency and General Assistance payment made under the Voluntary Firefighters Assistance package is paid as compensation to replace income, the payment acquires the character of income.

Accordingly, a Voluntary Firefighters Assistance payment is ordinary income and is therefore assessable.

I cannot find a reference to the legislation now, or at the time to ‘Emergency and General Assistance payments’ so it’s not clear what those payments were.

Today Social Security Act

Under the current version of the Act the Commonwealth pays a Disaster Recovery Allowance and a Disaster Recovery Payment.

Disaster Recovery Allowance

The Disaster Recovery Allowance is an ongoing payment to deal with lost income (and would appear to replace the Disaster Relief Payment discussed by Prime Minister Keating).  Both in 1994 and today, a major disaster is an event that the Minister has declared is a major disaster (ss 36 (1994 and current) and 36A (current)). Today a person has to demonstrate that they have ‘suffered a loss of income as a direct result of the’ declared major disaster (s 1061KA(1)(f)) and that they meet any other eligibility requirements in the Minister’s declaration (s 1061KA(1)(i)).

I cannot find the current declaration from the Minister but the Departmental website says that to be eligible a person has to:

• get an income by working in an affected Local Government Area or live in an affected Local Government Area
• lose income as a direct result of the NSW Bushfires in August, September, October, November and December 2019

A firefighter responding in the local government area where he or she lives, or works may be eligible for this benefit, but it would not extend to those providing out of area assistance.

Disaster Recovery Payment

The Disaster Recovery Payment is a one-off payment for a person adversely affected by a major disaster. The payments are $1000 per adult and $400 per child (s 1061M). To be eligible a person has to meet the definition of ‘adversely affected’ as set out in the Minister’s declaration (s 1061L).  Again I cannot find the current declaration but the Departmental website says that to be eligible a person has to:

… have been adversely affected by the fire. For example:

• you have been seriously injured
• you’re the immediate family member of an Australian citizen or resident who died
• your principle place of residence has been destroyed or must be demolished
• the interior of your principal place of residence has sustained major damage
• damage from the fire has exposed the interior of your principal place of residence to the elements
• your principle place of residence has been declared structurally unsound
• the interior of your residence has been affected by sewerage contamination
• you’re the principal carer of a dependent child who has experienced any of the above.

That could extend to firefighters who have been injured and the families of those firefighters who have tragically lost their lives.

It should be noted that these payments are not state specific.  Declarations have been made for fires in many states – see https://www.humanservices.gov.au/individuals/help-emergency.

Crisis payments

The Social Security Act 1991 (Cth) provides for crisis payments (as did the version of the Act in force in early 2003).  Qualifications are for a crisis payment are (ss 1061JG to 1061JI) release from gaol or psychiatric confinement, extreme circumstances forcing departure from home, remaining in home after removal of family member due to domestic or family violence or a humanitarian entrant to Australia.  A person eligible for a disaster relief payment is not eligible for a crisis payment (s 1061JJ).  Crisis payments do not equate to ‘Emergency and General Assistance payments’ as described in the 2003 ATO ruling.

The current payments to firefighters

In my post Commonwealth to pay NSW to reimburse firefighters (December 29, 2019) I said:

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

There are now some more details available on Services NSW website and the Commonwealth’s Disaster Assist website.  That now says that to receive the payments an applicant needs to be:

A volunteer firefighter who:

• is from a recognised firefighting organisation in NSW
• has been volunteering as part of an operational response to bushfires for more than 10 days since 1 July 2019. This can include reasonable travel and recovery time but does not include training or participating in non-emergency operations (for example, hazard reduction burns).
• is self-employed or employed by a small or medium business, and has lost income.

I cannot find a definition of ‘recognised firefighting organisation in NSW’ which is troubling as it is a phrase that I’m sure I have seen before. Even so I cannot find a definition in current or repealed NSW or Commonwealth legislation or regulations, the NSW EM or Bush-Fire Plan or on the RFS website. It may be that the term has just been picked up from the 2001 scheme.  If anyone can point me (and the readers of this blog) to a definition that would be most helpful (and please don’t just suggest what it means, I’m looking for a definition in a legal instrument).

In my post I suggested that this payment may be made by way of tied grant to the States (Australian Constitution s 96).  I can still find no definitive statement as to how the grants are being managed.  In the Prime Minister’s media release (New Payments To Support Nsw Volunteer Firefighters (29 December 2019)) NSW Premier Gladys Berejiklian is quoted as saying:

 “We are now pleased to provide administrative support to the Commonwealth to compensate our brave volunteers for loss of income.”

The reference to administrative support could suggest that it is still a commonwealth payment to individuals just managed by the states.  I suppose speculation doesn’t help and the exact legal arrangements don’t really matter at this time.  In due course the details of how the payments are being managed will become clear.

Another interesting quote from the NSW Premier is the statement that:

“The NSW Government already provides unlimited paid leave to all state public service employees who volunteer with the RFS or the other emergency services.

“On top of that, NSW public service employees are able to take rest leave to allow time for their recovery before returning to work….

I understand that SA has signed off for the same benefits for its firefighters (Cathy Van Extel, ‘SA signs off on compensation deal to pay volunteer firefighters up to $6000’ ABC Radio National Breakfast, 30 December 2019) and Victoria has ruled it out (Rebecca Urban ‘Victoria CFA chief slams plan to compensate volunteer firefighters’ The Australian (Online) 29 December 2019).

 

There has, naturally, been lots of bushfire news lately and with that lots of commentary on this blog.  Today however I return to paramedics and paramedicine in Western Australia.  Today’s question is about:

 … an inter-hospital transfer. I was tasked to transfer a patient [from a small outer metro ED to a larger city ED] with a “?drug induced psychosis” who had been sedated and was not on forms [a reference to the forms used for involuntary admission / transfers under the Mental Health Act].

The originating doctor was wanting me to transfer under a ‘Duty of Care’ as we would a head injured patient as he didn’t think the patient needed to be on forms. The police bought the patient in to ED under the Mental Health Act and were still in attendance at the hospital. The patient had been sedated in the police van by hospital staff then taken into the department for further IV sedation.

Where do we stand legally with sedated patients (whose capacity to consent has been removed) and a ‘Duty of Care’ transfer? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am I putting myself at risk of assault and battery and deprivation of liberty? The patient was eventually put on forms and police came with me-happy days.

Where do we stand with sedated patients and ‘duty of care‘ transfers? The doctor wants clarification. So do I.

I’ve previously discussed the WA mental health legislation- see Trauma or mental illness – WA (June 19, 2019) and Detaining the non-compliant in WA (July 21, 2019).

I do not understand what is meant by ‘a ‘duty of care’ transfer’.  Either the patient needed to be transferred for definitive care or he or she did not. I will put that comment aside as it doesn’t mean anything.  All patients should be transported when their care requires it, and not when it does not.

Here the patient has a problem, in this case let us accept that it was a drug induced psychosis, but it could be a head trauma, hypoxia or anything else.  If they are competent, they can refuse treatment.  If they are not competent treatment that is reasonable and in their best interests can be administered without consent (Collins v Wilcock [1984] 3 All ER 374; Guardianship and Administration Act 1990 (WA) s 110ZI).

If the patient presented with a drug induced psychosis and as a result of that psychosis they were unable to ‘understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision’ then they were not competent.  If sedation is a clinically indicated treatment, provided to advance the best interests of the patient, then it can be administered.  Once sedated they can be provided with other medical care that is reasonable in the circumstances and in their best interests, including transport by ambulance to another ED for more definitive care.

So far, the Mental Health Act has not entered into it nor should it if they have a physical issue.  If they need a physician not a psychiatrist, then the Mental Health Act is not relevant.

The Mental Health Act 2014 (WA) allows for involuntary treatment.  It says (s 26):

A medical practitioner … may refer a person under subsection (2) or (3)(a) for an examination conducted by a psychiatrist if, having regard to the criteria specified in section 25, the practitioner reasonably suspects that —

(a) the person is in need of an involuntary treatment order; or

The inference from this story however is that the patient was not being sent or assessment by or treatment by a psychiatrist.

There is an overlap between physical and mental illness in that mental disturbances can have physical causes (eg head trauma, drugs etc).  Section 6 of the Mental Health Act 2014 (WA) says:

A person has a mental illness if 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.

The fact that those disturbances are caused by drugs does not deny that those criteria are met.  But, as noted in my earlier post (Trauma or mental illness – WA (June 19, 2019)):

Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.”  The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):

(a)        the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;

(b)         the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.

I also said in that earlier post:

I don’t think a heavily intoxicated patient is mentally ill.  I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’.  Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)).  The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.

I’m not a clinician so I cannot answer the question, but I can pose the question that should be asked.  It is this:

Does the doctor, honestly believe that the patient’s symptoms meet the criteria in s 6 and that it is attributable to a mental illness as defined in the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation and/or the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association and that the person needs to be assessed by a psychiatrist?

If the answer to that question is ‘yes’ then the Mental Health Act is relevant and steps can be made to provide involuntary treatment to the patient even though he or she remains competent to and is refusing treatment.

If the patient is competent and consents to treatment, no problem.

If the patient is not competent then treatment can be given on the basis of the doctrine of necessity and the Guardianship and Administration Act 1990 (WA) s 110ZI.

If the answer to the above question is ‘no’ eg the patient has a drug overdose and needs to be treated for the physical effects of the drugs, either by being sustained until the drugs are broken down or otherwise dealt with by the body or active treatment is given, then the issue of involuntary treatment under the Mental Health Act does not arise as there is no genuine attempt to get the patient assessed by a psychiatrist (ss 26 and 55).

Presumably if, in this case, the doctor did not think the patient should be ‘on forms’ it was because the doctor did not think the patient was mentally ill.  The patient was physically ill and need more definitive care at another ED, just like any other patient.  The description ‘as we would a head injured patient’ sounds perfectly reasonable.  If a person suffered a head injury and was a danger to themselves or others and not competent to consent or refuse consent to treatment would be sedated and transported to definitive care without any need to refer to the Mental Health Act.  I can see no difference here.  The Mental Health Act is not a tool to impose any treatment on people just because it is for their own good.

The question was:

Where do we stand legally with sedated patients (whose capacity to consent has been removed…? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am, I putting myself at risk of assault and battery and deprivation of liberty?

If the patient recovers consciousness and has capacity they can refuse treatment but one has to put that in context, if they are in the back of an ambulance probably not fully aware of where they are, how they got there, and what’s happening they are probably not competent (and read the many posts on this blog on what that means – see https://emergencylaw.wordpress.com/?s=gillick).

If on the other hand a paramedic collects a patient that is undergoing active treatment (sedation) and continues treatment en route how is that any different to maintaining any other drugs that have been prescribed to the patient by the treating doctor?  If the first doctor has determined upon examination that the patient’s condition warrants sedation and transport, the paramedic is not required to cease the treatment to ensure that in his or her view it was correct.

Conclusion

I have no idea what is meant by a ‘duty of care’ transfer.

If a patient is not competent to refuse treatment, then treatment that is necessary and in his best interests can be given which can include sedation and transfer to higher level care.  The Mental Health Act is not relevant even if the cause of the patient’s loss of competence is a drug induced psychosis.

The Mental Health Act provides for the involuntary treatment of a mental illness.  It does not provide or justify involuntary treatment of a physical illness by someone who refuses consent.

From what I can infer from the information provided the assessment that this was just like treating a patient with a head injury would be an appropriate way to look at it.

 

A person who is raising funds to provide respirators to volunteer firefighters wrote and asked:

I’ve been crowd funding for masks for the volunteers. I bought them the best masks that meet all AUSnz standards.

There are posts circulating saying that if the masks are used, without approval from the RFS, ppl will not be eligible for compensation.

Please help me. I’ve handed out four hundred masks and intend on issuing one to every volunteer.

I’ve got my facts on masks now. I just need the laws

My response was to direct my correspondent to an earlier post – Choosing your own PPE (June 5, 2019).  They then came back to me with this question:

Can they force them to not wear the masks? When they were buying them individually there was no drama. Now it’s a big deal because we are handing them out?

That’s  more complex question.  As I noted in my original post both the RFS and volunteers have obligations to comply with Work Health and Safety requirements (Work Health and Safety Act 2011 (NSW) s 19 and s 28). Section 28 says that a worker (which includes a volunteer) must:

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

It would beg the question of whether any direction not to wear the mask was ‘reasonable’.  It would be ‘reasonable’ (ie based on reason) if the RFS actually had some grounds to suggest that the masks being supplied did pose a risk to health and safety over and above the masks issued by the RFS.  I do note that in a news report – Lucy Thackray, Luisa Rubbo, Bridget Murphy and Peta Doherty ‘NSW firefighters crowdfunding upgraded face masks amid claims RFS gear insufficient’ ABC News (Online) 11 December 2019 –

… the RFS said P2 masks are currently the safest method of protection and that P3 masks could even make breathing more difficult while fighting fires.

The RFS said P2 masks are “certified and tested rigorously”…

The RFS said it would take a long time to change safety equipment protocols.

“For the service to consider changing any of its provided firefighting equipment and apparel would require a full and compressive scientific research and evaluation process,” it said.

In another story – Jenny Noyes, ‘Why the RFS won’t pay for ‘game-changing’ respirator masks’ Sydney Morning Herald (Online) 12 December 2019:

… a spokesman for the RFS insisted disposable P2 masks remain the most appropriate respiratory protection for volunteer firefightings – and he said P3 masks, by design, can pose risks such as an increase in the likelihood of heat stress.

The disposable P2 masks are “a practical solution for managing exposure to bushfire smoke when taking into account other risks such as the displacement of metabolic heat,” the spokesman said.

P3 masks, on the other hand, can “interfere with the correct fitment of goggles, helmet and flash hood, as well as retain metabolic heat by the volume of the firefighters face being covered” which “contributes to heat exhaustion”…

For the RFS to consider changing any of its provided firefighting equipment and apparel “would require a full and compressive scientific research and evaluation process,” he said.

There lies the issue. If the RFS have not done a full assessment and decided that a mask is safe in the circumstances in which they will use it that may be good grounds not to issue it but that’s not a very strong argument.  Context has to be considered.  If the masks are manufactured to relevant industry or Australian standards, that would go a long way to saying that they are fit for purpose.  In an ideal world you might explore multiple brands and styles, issue them to members for feedback, discuss unique operating requirements with manufacturers to come up with a decision to buy and issue a particular item.  But that sort of detail may not be required if, as a firefighter quoted in the ABC story is correct when he says ‘”In defence of the RFS, these are unprecedented conditions on a scale no one could have anticipated,” he wrote’ and the circumstances warrant prompt action.

On the other hand, the RFS do say there is a safety risk and if there is that sort of evidence eg that these masks are in fact not the best for bushfire fighting even if short term reports are favourable then at least the RFS has to warn its firefighters and depending on the science, perhaps ban them.

But what are the consequence? WHS laws are criminal laws.  Assume the RFS does ‘ban’ them. If there’s really no good reason for that, even if they say ‘we haven’t tested them we can’t be sure’ then it would hardly be a ‘reasonable direction’.  If there really is good science behind it and a firefighter still wears it then arguably the firefighter is going to breaking his or her obligation under s 28 but the idea that a work place inspector is going to turn up on a fire ground and issue a notice to comply seems extremely unlikely.  Equally it would seem unlikely that the RFS would take disciplinary action against members any more than it would for members carrying pocketknives they’ve bought themselves.

Conclusion

I think it’s reasonably for the RFS to say at least initially, ‘we’re not supplying them’ on the basis that they have not considered and assessed the various items and there are government purchasing processes that have to be followed. If, however, the evidence coming back to RFS is that ‘these are unprecedented conditions on a scale no one could have anticipated’ and in these circumstances the standard issues masks are not adequate, there could and should be ways to fast track the implementation of a solution even if it has to be revisited once the fires are over.

The only legitimate reason to ban the wearing of the masks that have been purchased by members or donated by communities is if there is sound evidence, not mere speculation, that the masks actually increase the risk to firefighter health and safety.  That may be hard to establish if they are built to industry or Australian standards for wildland firefighter respiratory protection.

It is being reported that the Prime Minister has announced that the commonwealth will make money available to pay $300/day to NSW Rural Fire Service volunteers involved in the current extended fire campaign, to a maximum of $6000 per person –  Jade Macmillan, ‘Scott Morrison announces compensation payments for New South Wales volunteer firefighters’ ABC News (Online) 29 December 2019.

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

Working on supposition, I would infer that the payments will be made to the states in the form of a ‘tied grant’ (Australian Constitution s 96). That section says:

During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

The Parliament has not provided to stop tied grants and this is a key feature in the federal relationship. The Commonwealth can give money to the states subject to ‘terms and conditions’ that it is spent in a particular way, in this case on providing the compensation to the RFS volunteers.  That would be consistent with the report that ‘payments will be administered by New South Wales’.

The form of funding would also explain why the payments are currently limited to New South Wales but that ‘… other states and territories could request a similar scheme based on their level of need’.

Arguably the Commonwealth cannot discriminate against citizens on a state-by-state basis (Australian Constitution s 117; though ‘The question whether section 117 limits the lawmaking power of the Commonwealth Parliament has not yet been conclusively resolved by the High Court’ Commonwealth of Australia, Australia’s Constitution: With Overview and Notes by the Australian Government Solicitor (2010) p. vii). In any event making the payment to New South Wales and not to individuals would avoid that issue. That is the Commonwealth would be in some difficulty if it made an allowance that said ‘Residents of NSW get this money but not residents in other states…’ but it has no such difficulty making a grant available to NSW and to other jurisdictions on request.

The problem with all schemes is that will involve arbitrary lines and with arbitrary lines, someone always falls on the wrong side.

We are told these payments will be made available ‘to NSW Rural Fire Service (RFS) volunteers who are self-employed or working for small or medium-sized businesses and who had been called out for more than 10 days this fire season.’  Mr Morrison is quoted as saying “We expect larger companies to provide their employees with 20 days of emergency services leave.”

The Fair Work Act 2009 (Cth) s 108 provides that employees are to have community service leave for, amongst other things, emergency service work, but it does not say that the leave must be paid except where it is to serve on a jury (https://www.fairwork.gov.au/leave/community-service-leave).  Section 772(1) says:

An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons: …

(h)       temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

It may be that large employers ‘provide their employees with 20 days of emergency services leave’ but it does not follow that it must be paid leave and so employees may miss out.  Of course the current publicity and the decision of the Commonwealth to give Commonwealth employees 20 days paid leave will certainly bring moral pressure to large employers to behave has, and to be seen to behave as, good corporate citizens – James Hall ‘Woolworths extends paid leave for volunteer firefighters’ news.com.au (27 December 2019).

The other arbitrary line is that the payments are limited (we are told) to RFS volunteers.  There have been declared states of emergency in NSW and even without a declaration the NSW Emergency Management Plan comes into play (ie it does not need to be formally ‘activated’ (State Emergency and Rescue Management Act 1989 (NSW) s 13). Under the State EM Plan the following agencies, which I infer rely on volunteers, have functional roles and may be involved in the current emergency include:

• Ambulance Service of NSW (Honorary Ambulance Officers appointed under the Health Services Act 1997 (NSW) s 67H));
• NSW Police Force (see Volunteers In Policing);
• State Emergency Service;
• New South Wales Volunteer Rescue Association Inc; and
• Volunteer Marine Rescue NSW.

The NSW response has also been assisted by interstate volunteer firefighters.

Add to that the Participating and supporting organisations.  A participating organisation includes;

 … volunteer organisations … [that] have either given formal notice to Agency Controllers or Functional Area Coordinators, or have acknowledged to the SEMC, that they are willing to participate in emergency response and recovery operations under the direction of the Controller of a Combat Agency, or Coordinator of a Functional Area, or an EOCON, and with levels of resources or support as appropriate to the emergency operation.

A supporting organisation is an organisation that has ‘… indicated a willingness to participate and provide specialist support resources.’

Participating organisations in the Welfare Services Functional Area Supporting Plan (June 2018) that I understand are likely to use volunteers are:

• ANGLICARE;
• ADRA (Adventist Development and Relief Agency);
• Australian Red Cross (NSW);
• The Salvation Army; and
• Uniting Church in Australia (Synod of NSW and ACT)

St John Ambulance Australia (NSW) is a participating organisation in the New South Wales Health Services Functional Area Supporting Plan (NSW HEALTHPLAN) (2013) and there are a large number of volunteer organisations listed as participating and supporting organisations in the Agriculture and Animal Services Functional Area Supporting Plan (2017).

It follows that there are likely to be many volunteers, currently engaged away from work and no doubt losing income that will not be covered by a scheme that only compensates RFS volunteers.

Discussion

Of course, one has to start somewhere and given the growing pressure on the Federal government to be seen to be doing something this is not an unsurprising start. Arbitrary lines – eg $300/day for a minimum of 10 days, maximum of 20, and only paid to RFS volunteers – make for easy administration.  It would be much more complex if it was compensation payable to anyone who could show that they had been involved in a volunteer response and had lost income as a result. But, as noted above, whenever arbitrary lines are drawn, deserving people are going to fall on the wrong side.  No doubt there will be plenty of hard cases to be found where someone can say ‘it’s unfair that my neighbour got $6000 because he/she had an RFS uniform on when I was also deployed, but in a different uniform’.

Making policy on the run will also lead to arbitrary outcomes.  Hopefully in the wash up to these events, having established the precedent, the Commonwealth and the States and Territories will develop a more comprehensive scheme to be used in the next long term emergency whether that’s heatwave, flood or fire.