Today’s question is

When a volunteer member of the NSW RFS has been stood down as per service standards  is there a requirement on the part of the RFS to start an investigation in a given time frame ,IE one week,  3 weeks ,etc.

There is no specific time frame set out in Service Standard 1.1.2 Discipline (v. 4, 21 September 2016).  This service standard refers to

• Service Standard 1.1.7 Code of Conduct and Ethics
• NSW RFS Fact Sheet Natural Justice
• Managing Volunteer Discipline*; and
• Conducting a Volunteer Discipline Investigation*

I cannot review the RFS Fact Sheet Natural Justice, Managing Volunteer Discipline* or

Conducting a Volunteer Discipline Investigation as they don’t appear to be on the RFS webpage.  I would be surprised if they gave specific time limits.

The RFS Code of Conduct says (Service Standard 1.1.7 Code of Conduct and Ethics, (v. 4.1, 2 December 2016), [3.5]) says:

… all members must:

• act honestly, in good faith, reasonably and with integrity at all times when dealing with members of the community, stakeholders and fellow members;

Discussion

The reason why any agency would be reluctant to impose time limits is that eveyr case is different. A very serious allegation of an immediate and serious risk to an individual or community may require a member to be suspended pending detailed investigation and consideration of whether matters should be referred to police.  Other matters may be clear cut.  Where it may be appropriate to start formal proceedings within a week in some cases, it would not be appropriate in others.

Equally one has to consider availability of witnesses, other demands on the RFS (eg senior officers, during the 2019/2020 summer probably have other things on their minds) and the request from the affected member for time to allow evidence gathering and legal advice.

The normal rule would that these have to be done in a timely way.  The critical issue from the Code of Conduct and Ethics is the need to act ‘in good faith’ and ‘reasonably’.  If proceedings are delayed for improper reasons, eg by not resolving an issue a member remains suspended then that would be a breach of that Code of Conduct.

Accordingly an officer responsible for managing disciplinary proceedings should be acting to move the matter along in a ‘reasonable’ timeframe.

 

A state of emergency has been declared pursuant to the Emergencies Act 2004 (ACT) 156.  Details can be found on the Emergency Services Agency’s website at https://esa.act.gov.au/state-emergency-place-act or you can read the formal declaration here – Emergencies (State of Emergency) Declaration 2020 (No1) (31 January 2020).

The ACT Chief Police officer has been delegated to exercise emergency powers under s 160A (see Emergencies (Emergency Controller) Delegation 2020 (No 2) (31 January 2020)).  The ACT Chief Police Officer has, in turn, delegated his authority to all police and protective service officers (Emergencies (Chief Police Officer) Delegation 2020 (No 2) (31 January 2020)).  That means all ACT police and protective services officers can:

(2) For the management of the declared state of emergency…

(a)            direct the movement of people, animals or vehicles within, into or around the area to which the state of emergency applies (the emergency area); and

(b)           give directions regulating or prohibiting the movement of people, animals or vehicles within, into or around the emergency area; and

(c)            direct, in writing, the owner of property in or near the emergency area to place the property under the control, or at the disposal, of the emergency controller; and

(d)           direct a person to give information, answer questions, or produce documents or anything else, reasonably needed; and

(e)            take possession of any premises, animal, substance or thing in or near the emergency area

 

 

Today’s correspondent says:

A FRNSW officer recently told me that Fire and Rescue Act (NSW) allows him ‘ to go wherever and whenever he wants to protect life, property, and environment, and that the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District.

The Fire and Rescue Act seems to have two sections of relevance with respect to FRNSW attendance at fires in Rural Fire Districts;

5A   General functions of Commissioner
(3)  The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved and, in the case of a fire, it does not matter whether or not the persons are, or the property is, within a fire district.

And;

20   Fires outside areas to which Act applies
(1)  The Commissioner may permit any members of a fire brigade, with engines and appliances, to go beyond the limits of any fire district for the purpose of extinguishing any fire.
(2)  In such a case the provisions of this Act apply to the fire and to anything done at the fire as if the fire were within a fire district.

However, Rural Fire Districts are constituted by section 6 of the Rural Fires Act, and that Act has this to say;

38   Functions of fire control officers
(1)  A fire control officer appointed under this Part has all the powers and immunities conferred on an officer in charge of a rural fire brigade.
(2)  A fire control officer:
(a)  has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and
(b)  has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, ….

Now my questions…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

At a fire or other applicable incident in a Rural Fire District, if first arriving, I understand a FRNSW appliance may commence operations as per the Fire and Rescue Act, however I also understand that once the RFS arrive and assume incident control, the incident as a whole will fall under the Rural Fires Act and the Fire and Rescue Act will then only be relevant to internal matters to the FRNSW members present (eg discipline, liability)?  If the RFS are first arriving at the fire or other applicable incident in a RFD, I understand that the RFS will always have control as per the Rural Fires Act and that subsequent attending FRNSW appliances are subject to that control?

Anything further on this that I may have overlooked?

The fundamental position is that agencies should work together. Any FR(NSW) officer who says ‘the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District’ has missed the memo on inter-agency cooperation.

Sections 5A and 20 of the Fire and Rescue NSW Act 1989 (NSW) quoted above are permissive; that is, they give Fire and Rescue NSW (FRNSW) permission but not necessarily authority. Section 5A sets out the functions of the Commissioner and s 5A(3) says that he or she can perform those functions anywhere in the state and s 20 says that the Commissioner can do that by despatching FRNSW brigades outside a Fire District.  Section 5A(4)(d) says that the Commissioner ‘is also authorised to … (d) assist, at their request, members of … the NSW Rural Fire Service … in dealing with any incident or emergency’.

When I say a section is ‘permissive’, recall a comment that I have made previously: as a rule of thumb (that is, a rough guide, not 100% accurate), a natural person can do anything they like unless there is a law that says they cannot. On the other hand, government agencies cannot do anything unless there is a law that says they can. The Fire and Rescue Act 1989 (NSW) s 5 defines Fire Districts. Section 5A(1) says (emphasis added) ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district.’ A retained firefighter who is also a lawyer would, rightly ask if despatched outside a fire district’ ‘can we do that?’; and ss 5A(3) and 20 says ‘yes we can’. But it does not give any explanation of what they are to do in that area.

The Fire and Rescue Act has to be read in context which includes the existence of the Rural Fires Act 1997 (NSW) and the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).  The SERM Act provides for the creation of the NSW Emergency Management Plan (the EM Plan). ‘The State Emergency Management Plan has effect in the event of an emergency whether or not a state of emergency has been declared’ (s 13(2)). The EM Plan says (at [705]-[706]):

Individual agencies are identified in relation to specific hazards (known as a Combat Agency) and are responsible for controlling the response operations. Controlling the response involves the overall direction of activities being undertaken by participating agencies and individuals.

Combat Agencies have specific provisions within their governing legislation to carry out their respective functions. EMPLAN serves as a mechanism to facilitate support to such agencies. A Combat Agency Incident Controller is the single person/entity that is responsible for the control and coordination of emergency response measures undertaken within the extent of the authority of the agency as defined in the relevant Act and EMPLAN. They are the final authority in decision-making in relation to the incident or emergency within their area of responsibility…

The Rural Fire Service is the combat agency for fires within a rural fire district (EM Plan, Annexes 3 and 9; Rural Fires Act 1997 (NSW) s 9(1)(a)).

Now my answers…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

It’s not that the Rural Fires Act has ‘precedence’ over the Fire and Rescue Act, they have to be read together.  Together (along with EM plan) they say that the Rural Fire Service is the combat agency for fires in a rural fire district.  They can call on FR(NSW) for assistance and FR(NSW) can move out of a fire district to provide that assistance. (FR(NSW) can also move out of a Fire District to perform its other, non-firefighting tasks such as controlling a HAZMAT incident or providing rescue services where they operate the relevant accredited rescue unit).

FR(NSW) may be despatched to a fire outside a fire district because they are the closest and most appropriate fire service. When they turn out the brigade captain can exercise all of the powers that he or she would have within a fire district (Fire and Rescue NSW Act 1989 (NSW) s 20(2)). As first (and perhaps only) brigade on scene the FR(NSW) commander will necessarily be the IC for that fire. FR(NSW) may also be despatched to assist a RFS brigade, for example an RFS brigade may be called to a house fire in a village and call on the local FR(NSW) brigade to assist with structural firefighting. The RFS commander will be the IC for that fire and the FR(NSW) brigade are there to assist subject to the IC’s control and set objectives.

One would hope that if FR(NSW) are first on scene and have commenced firefighting one would hope that the commander of an RFS brigade would report to the FR(NSW) IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (even if legally that is the case). I would hope the same would apply in reverse, if RFS are first on scene and have commenced firefighting one would hope that the commander of an FR(NSW) brigade would report to the RFS IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (noting that he or she would not legally be in charge in any event).

As a fire escalates and incident control is moved from the brigade on scene to an IMT then the RFS IC will be ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the operations conducted by FR(NSW). Should the Commissioner make a declaration under s 44, then the Commissioner ‘is to take charge of bush fire fighting operations and bush fire prevention measures’ and (s 45):

… may give such directions as the Commissioner considers necessary to fire control officers, deputy fire control officers, officers of rural fire brigades, local authorities, officers or members of Fire and Rescue NSW, members of the NSW Police Force and other persons in connection with the prevention, control or suppression of any bush fire in the area or locality in which the Commissioner has taken charge or is taking measures under this Division.

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

Section 38 is quoted above. Critically it says (emphasis added):

(2) A fire control officer:
(a) has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and
(b) has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land.

Section 38(2)(a) is limited to ‘rural fire brigades’ so does not give that FCO authority over FR(NSW) brigades; but s 38(2)(b) does.

Section 38(2)(b) refers to any fire fighting appliance other than those operated by State Forests, National Parks and Wildlife Service, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation or a water authority’ (Definition of ‘managed land’). It follows that the FCO has the right to ‘use’ fire fighting apparatus owned by FR(NSW) but presumably no FCO is going to commandeer the appliance, rather he or she will assign a task to FR(NSW).

Conclusion

The Fire and Rescue NSW Act 1989 (NSW) does not allow a FR(NSW) officer ‘to go wherever and whenever he wants to protect life, property, and environment’. It allows the officer to respond outside a fire district when authorised to do so by the Commissioner.

The response is subject to the Rural Fires Act, the State Emergency and Rescue Management Act as well as the Fire and Rescue NSW Act. When responding to a fire in a rural fire district, it is the Rural Fire Service that is the combat agency. The FR(NSW) commander may be the IC for that fire, either by default (they are the first, perhaps only, brigade one on scene and are exercising control) or by appointment. Where an RFS officer is the IC then it is the RFS officer who is ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the tasks assigned to the FR(NSW). There is nothing in ss 5A or 20 that says the FR(NSW) officer can do whatever he wants or exercise any control over an RFS controlled fire. The RFS are in ‘control’, the FR(NSW) commander is in ‘command’ of the FR(NSW) resources.

• For a related answer, but going the other way (ie RFS into a Fire district, see Rural Fire Service operating within a Fire District (amended) (January 25, 2015); see also
• FRNSW responding to a s 44 fire (March 19, 2018).

Today’s question comes from a volunteer who is facing disciplinary proceedings.  On this blog I do not give specific legal advice but can answer generic questions though no-one should act on the information here in a specific case without obtaining legal advice on their own position.  I have edited the question to make it sufficiently general. I provide the answer as I’m sure it is of general interest but as I say cannot or should not be relied on in specific cases, other than as a starting point.  The question is:

I note that in the public media there any number of fire service personnel who have spoken in a way or behaved in a way that may have breached service standards on public comment.

Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Or is the service required to apply the law {service standards} to all?

If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”?

The question needs only to be stated – ‘can a member rightly claim unfair treatment –that is “you prosecuted me but not them”? – to realise the answer has to be ‘no’.

Let’s use the criminal law as a starting point.  We all know that many crimes don’t get punished.  Sometimes because police cannot find the offender and sometimes they chose not to prosecute.  One person gets a speeding ticket; the next gets a warning.  Before the court the question is ‘did the accused commit the offence charged?’ and the fact that someone else, somewhere else, may also have committed the same offence but was not charged is irrelevant to answering that question.

One problem with the suggestion that ‘a member rightly claim unfair treatment –that is “you prosecuted me but not them”’ is that it sets the member up as ‘judge in their own cause’.  They are acting as judge to say what they have perceived as similar or the same to their own case is indeed similar or the same.

An investigating officer, whether a police officer or a service officer, has to look at a what happened or what was done, and the rule that may have been breached and ask ‘does that conduct breach the rule?’  That involves all sorts of questions (depending on the rule) of intent, context and in the case of media, a balance of free speech rights against other rights and interests.  A person may say ‘that case appears to me to be a possible breach’ but the investigating officer who has indeed investigated and therefore knows more that there was no breach.

Even if there is a breach every enforcement officer has discretion. Police don’t have to arrest everyone who commits an offence, they can (in some cases) issue an infringement notice, or a caution, or take no action.  In deciding what to do they of course weigh up the seriousness of the alleged offence, the circumstances of the offending and the offender, what other factors suggest that the person may not do it again.  (Many young people will have learned that the real offence is ‘not show proper respect’.  If you have a ‘good family’ or come from a ‘good school’ there may be more lenience shown as police think your family or school will set you on the straight and narrow).  All of that is considered when making a decision.  Again the person who wants to say it’s ‘unfair treatment –that is “you prosecuted me but not them”’ is necessarily saying ‘and our cases are relevantly similar’ when he or she may not know that – again being judge in one’s own cause.

In criminal law what has been done to others is relevant in sentencing, so courts do look at sentencing decisions to give parity – the judge’s talk about the ‘tariff’ for a particular offence.  Judges do not have to give the same penalty to each offender because each offender and each offence is different, but they do have to spell out their reasons and in particular if they are giving  a penalty that appears tough, or lenient, compared to the accepted ‘tariff’.

But that is the issue. Every case is different. To set up the argument that it’s ‘unfair treatment –that is “you prosecuted me but not them” would be to force the decision maker to investigate those earlier, allegedly similar cases to determine whether it is in fact unfair.  Whether that applies in a Service or in the criminal law the system would grind to a halt in irrelevant investigations.

I’m reminded of a joke that I’ll try to retell.

 Joe is speeding down the highway and is passed by several cars travelling even faster.  The last car in the line is a police car. The driver activates the lights and sirens and Joe pulls over and is issued a speeding ticket.  He says to the officer ‘but what about all those other cars that were going even faster?’ 

The constable sees the fishing rods on Joe’s roof and the fishing kit on the back seat. He says ‘you like to go fishing I see’. ‘Yes’ says Joe.  The constable asks ‘and do you ever catch them all?’

The fact that those other drivers were committing a more serious offence, on the same road, on the same day, in front of the same officer, will be no defence for Joe when he thinks about paying or contesting the traffic infringement. If Joe takes the matter to court the only question will be ‘were you speeding?’ not ‘were others speeding and did they get charged too?’

Of course rules have to be interpreted and understood. If there is a pattern of tolerating certain behaviour then that could form an argument that it has been accepted that conduct of this sort is not a breach of the rule; but that is a question of what the rule means which is not the same as the question I was asked.

Conclusion

Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Answer ‘Yes’.

If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”?  Answer ‘No’.

If that argument were to succeed authorities would have to prosecute everyone, or no-one.  And they’ll never ‘catch them all’ and not all breaches are the same.

Today’s question comes from a volunteer firefighter who often speaks:

… to salaried staff on the phone on all manner of issues.

On the conclusion of the phone call I will then send an email to the staff member in point form confirming the substance of the conversation.

Is there a legal requirement for the staff member to reply to the email, regarding the conversation, or can it be ignored?

One would think the answer would be ‘there is no legal requirement to reply; the email can be ignored’ but it’s actually not that straightforward.

First I’ll make an assumption that we’re talking about a contentious issue, that is the phone call is not merely a social call.  Second, I’ll also assume that the result of the conversation is that someone agrees to do, or not do, something or there is some other form of anticipated follow-up action promised or expected as a result of the call.

It is always wise to make contemporaneous notes of conversations over contentious issues.  Legal Practice 101 tells all new lawyers always write a file note.  A contemporaneous record can be used later when someone asks: ‘and how is it that you can recall the details of a conversation you had 10 months ago?’.  The answer is ‘I’ve looked at the notes I made at the time and that allows me to recall the conversation’ (see The value of file notes (June 10, 2016) and Record keeping and report writing (February 14, 2019)).  Having written a file note you need to keep it somewhere.  Attaching it to, or putting it in, an email is not a bad storage system.

The email gets sent (and another assumption – I assume it is sent to the correct email address and is actually received) then what?  The recipient has three options; they can:

1. Respond positively – “yes I agree that your notes accurately reflect our conversation and what each of us promised to do”;
2. Respond negatively – “no I do not agree that your notes accurately reflect our conversation, I did not promise to do X or not do Y, I still expect you to do A and not B”; or
3. They can choose to not respond at all.

I’ll now invent a scenario.  Suppose a member speaks to a senior salaried officer because there is a shortfall of money in a brigade account for which the member is responsible. During the conversation the member denies any wrongdoing but admits there is a shortfall.  The member agrees to make up the shortfall (let’s say $100) but says ‘but I don’t admit I did anything wrong and I understand you are going to do a further investigation and if you are satisfied that I did nothing wrong you’ll give me my $100 back’.  The salaried officer says ‘yes that’s right, I’ll look into it and if it is as you say it is, we will give you that money back.  I’ll get back to you within a month’.  The member makes notes of that conversation, sends them to the salaried officer and also deposits the $100.  Then suppose, a month later, the member receives notice, from that same salaried officer, that he is satisfied that the shortfall was not due to any misbehaviour by the member and the circumstances that caused it to arise were as the member said it was in that phone call and recorded in the notes, but the salaried officer says ‘but the account was your responsibility and even though you did nothing wrong, we’re not going to refund the money’.

Let us return to the email notes.

(1)        If the salaried officer had replied saying ‘yes I agree with your conversation’ that would be strong basis to demand the refund of the money.  There was an express agreement that the money would be refunded “if it is as you say it is.”

(2)        If the original salaried officer had replied saying ‘no that is not what we agreed to’ then the member would know that there was a different understanding and would know to act accordingly. Presumably in that case he or she would not deposit the $100 but would wait to see if the service could establish that he or she owed a debt.

(3)        What happens if the salaried officer does not reply to the email?  Silence is not acceptance (Felthouse v Bindley [1862] EWHC CP J35) so the absence of a reply does not mean that the salaried officer is deemed to have accepted the contents of the note are true and accurate or that their silence creates a binding agreement. But the absence of reply could give rise to the doctrine of equitable or promissory estoppel (fancy language to say the salaried officer cannot now deny the contents of the email (ie they are ‘stopped’) because it would be unfair (inequitable) to do so.

In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 the parties were in negotiations for lease.  Whilst the terms of the lease were agreed upon there was no formal exchange.  The conduct of proposed tenant led the owner to believe that exchange would occur and the owner changed its position, to its legal detriment, based on that belief.  Brennan J said (at [12] of his judgment):

A party who induces another to make an assumption that a state of affairs exists, knowing or intending the other to act on that assumption, is estopped from asserting the existence of a different state of affairs as the foundation of their respective rights and liabilities if the other has acted in reliance on the assumption and would suffer detriment if the assumption were not adhered to

(For latest case on estoppel see Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 ).

How does that apply here? The agreement to repay the money ‘induces’ the belief in the member that a state of affairs exists – if the investigation confirms that it was not the member’s fault, they will refund the that the $100.  Depositing $100 is acting to the member’s detriment; not only do they lose the $100 they also lose the position of being able to deny that they owe a debt.  If they did not pay the money and their fire service claimed there was a debt due they would have to sue for that money. By depositing the money, if the member wants it back, he or she would have to sue.  A clear legal detriment.

The member has acted on ‘an assumption that a state of affairs exists’ and the salaried officer ‘knows’ that the member was acting on that assumption because the email he or she received told them that.  In the circumstances it would be wrong to now deny that there was an agreement to repay the money in the very circumstances that have arisen.  And it would be wrong to argue that the notes do not reflect what was said because the officer had the chance to reply and say ‘no you misunderstand my position – the state of affairs you believe exists do not exist’.

Now it’s not a clear cut argument, just as silence is not acceptance a failure, or a choice not to respond may not ‘induce’ the member to believe that their version of the conversation is correct (in the way a positive reply does) but it is at least argument – ‘You knew that I was depositing the money because I was relying on your promise to repay it and you knew that was my assumption because it was in the notes I sent you and you did not reply to tell me that my understanding was wrong.  I acted on that assumption, you knew I was acting on that assumption, you cannot now deny that the agreement that I recorded was in fact the agreement we reached’.

Where it’s just a file note of the conversation, mere silence would not be seen as endorsement of what the note says.  In those cases the member may have their version of the conversation, the salaried officer their own version (perhaps recorded in their own file note) and the mere fact that the member sent a version that the officer disagreed with would not put the officer into a position of being able to deny the conversation. An email that say ‘you agree you are a degenerate jerk who has abused your position to harm me’ would not warrant a response, even if the recipient does not agree with it.  Mere silence is not acceptance.

The test is that the party (in this context the salaried officer) must induce (and proving silence was an ‘inducement’ would be more difficult than a positive reply, but I suggest not impossible) another (in this context the member) to make an assumption that a state of affairs exists, knowing [the member] would act on that assumption to the member’s harm or detriment.  It has to induce the member to do, or not do something that he or should would otherwise have not done, or would have done, if they did not believe that the relevant ‘state of affairs’ did exist.

Conclusion

There is no legal obligation to reply to an email that contains a summary of a conversation but depending on the nature of the conversation, particularly where the notes indicate that the author is going to do something, or not do something to their detriment because they believe there has been a promise or commitment from the other person, then there could be legal implications arising out of the response, including a failure to respond.

I’ve written on the massive fundraising that was lead by Celeste Barber and led to a $51m donation to the NSW Rural Fire Service Brigades and Donations Fund – see

• Disaster fundraising for government or charity? (January 5, 2020);
• Diverting Facebook donations (January 6, 2020);
• Further complicating the issue of diverting Facebook donations, and perhaps an ‘out’
  (January 7, 2020);
• Donations to RFS trust on hold (January 13, 2020); and
• Trust operations 101 (January 16, 2020).

I note that today the Rural Fire Service has made an announcement about how they plan to use the money – see Rural Fire Service Donations Update (January 24, 2020).  In that update they say:

Through the NSW RFS and our Donations Trust, we’ve identified four key areas to focus on. These are:

• Rebuilding – taking immediate action to rebuild and replenish, including the establishment of the $10 million fund for volunteer brigades, and providing emergency funding for brigade items which have been damaged or destroyed.
• Supporting – enhancing and extending our support of our members including volunteer welfare and their mental health, and consideration of a dedicated memorial for fallen volunteer firefighters.
• Equipping – ensuring our brigades are equipped to protect the community, property and the environment, including improving technology and connectivity.
• Improving – improving service delivery for members and the community such as education and training, emergency response and processes for volunteers.

These are a starting point and we’re looking forward to consulting with our volunteers on meaningful initiatives that will make a difference for our brigades and the community.

While donated funds may be used to accelerate or supplement existing programs, we want to make it clear that donation money won’t be used to replace funding that is normally provided by Government or usual funding sources. This is about delivering money to where it’s most wanted and delivers the best value for our members.

As for expectations that money would be diverted to other charities or other services they say:

We are still working through the details of some donations, including large online campaigns. Some of these involve complex issues and everyone is working hard to ensure the money goes where it was intended. Once these issues are worked through, we’ll have a better idea of how much money is available and what kinds of initiatives can be carried out.

In my earlier posts, listed above, I have noted (with input from professional colleagues) what some of those complex issues are, not least the limited nature of the trust deed. Certainly the 4 priorities that they have listed appear to be consistent with the trust deed. One hopes those that have donated see this is a worthwhile use of their contributions.

For those still hoping to see the money more widely distributed it remains the case, as the RFS admits, that these are complex issues. Whether they find a way to do that remains to be seen.

Today’s question is:

What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?

Here’s the specific scenario-

Pt presented to their GP with nystagmus, vertigo and nausea. GP surgery called for an ambulance. The crew then had the patient attempt the Epley manoeuvre.

The local clinical practise guidelines don’t cover vertigo nor the Epley manoeuvre.

The Royal Australian College of General Practitioners describes the Epley manoeuvre as a non-drug treatment for ‘posterior canal benign paroxysmal positional vertigo’. They say ‘General practitioners, patients, other medical practitioners and physiotherapists can administer the Epley manoeuvre’.  They also say ‘No serious adverse effects have been reported. Common side effects include vertigo and nausea (and sometimes vomiting) during the manoeuvre’.

To answer this question, however, the exact treatment in question is not really the issue.  The paramedic is providing treatment for a condition that ‘the local clinical practise guidelines don’t cover’.  The paramedic is not providing treatment that is contrary to the CPGs, but treatment for a condition that is absent from the CPGs.

The implications are that a registered health professional has to take responsibility for his or her decisions. There is no legally ‘defined scope of practice’ for paramedics. Good paramedic practice requires ‘recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time’ (Paramedicine Board Code of Conduct (Interim) June 2018, [2.2](a)).  But the ‘scope of practice’ is not solely defined by the employer.

Maintaining and developing knowledge, skills and professional behaviour are core aspects of good practice. This requires self-reflection and participation in relevant professional development, practice improvement and performance-appraisal processes to continually develop professional capabilities. (Code of Conduct [7.1]).

Clinical Practice Guidelines are guidelines and won’t cover every situation and sometimes paramedics will have obtained extra knowledge and training that they can use to deliver patient centred care (Code of Conduct [2.2](b)). If the paramedic knows what the Epley (or some other) manoeuvre is, can recognise when it is indicated and is competent to perform it then it is within ‘the limits of a practitioner’s competence and scope of practice’. But he or she is responsible for the decision making and if it turns out that they were not competent or that the treatment was not indicated (or worse, was contra-indicated) and the patient suffers a harm, then he or she will have to be prepared to justify why their decision was a reasonable decision in the circumstances.

In terms of the person’s employment he or she may be subject to internal discipline regardless of the outcome for the patient, though hopefully an ambulance service wants a good outcome for the patient. If it turns out it was a good outcome that meant the patient did not need transport to hospital, then that is providing ‘good service’ and probably everyone’s happy.  The implications then are the paramedic gets a pat on the back for using initiative and delivering good care.

In terms of liability I would suggest that if the patient suffered a harm the employing ambulance service would be liable.  And don’t start the rhetoric that they would not be because the paramedic did not follow the scope of practice.  The issue from the plaintiff/patient’s point of view is:

I called an ambulance; an Ambulance came; a person who was clearly an employee of the ambulance service provided health care which is the very job he or she is employed to do; he or she was negligent; I suffered harm; the employer is vicariously liable.  How do I prove they were negligent? They acted outside their practice guidelines when a reasonable paramedic would not have done that.

The departure from the CPGs is the proof of negligence and the employer is vicariously liable when the employee is negligent (see Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019; noting this case is making its way to the High Court) and State of Queensland STILL liable for paramedic negligence (October 25, 2017).  The departure is what makes the employer liable, not what allows them to get out of liability.

It is only if the departure was so gross and extreme that it could be said the paramedic was on a frolic of their own (eg by charging the patient a fee to provide an alternative service) that vicarious liability can be avoided.  But do remember that schools are being held liable for the sexual abuse of students by teachers when that is clearly not part of the job description.  In Prince Alfred College Incorporated v ADC [2016] HCA 37, French CJ, Kiefel, Bell, Keane and Nettle JJ said (at [39]-[41] and [81]):

Vicarious liability is imposed despite the employer not itself being at fault…

The traditional method of the common law of confining liability … is the requirement that the employee’s wrongful act be committed in the course or scope of employment…

Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment.

… the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.

When a person calls for an ambulance it is the employing ambulance service that despatches the paramedic and particular features are that paramedics are in authority, exercise power, rely on trust and have the ability to be in intimate position with the patient.  What we’re describing here is not sexual assault of the patient, but the analogy is still good.  The paramedic arrives, the patient trusts the paramedic to provide good care and by being in uniform with the word ‘paramedic’ on their shirt they are being held out as a person who can be trusted, the paramedic is there in response to a call to the employer and is placed in that position of authority and trust by the employer.  If they harm the patient it is the employer (which, in every case other than NT and WA, is the state) that has the funds to pay; the paramedic does not.  The employer will be liable for the departure by the paramedic even though ‘the employer not itself being at fault’.

Conclusion

What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?

The paramedic has to take responsibility for his or her decision making. If there are no adverse consequences for the patient that may not mean much; it may even mean a nice thank you letter! However, regardless of the outcome, he or she may be subject to internal discipline and if their conduct is not good paramedic practice, he or she may be subject to professional discipline. One may think that’s unlikely if there are no adverse consequences but that is not the sole test. Sometimes a departure from procedure has to be sanctioned even if by sheer dumb luck it works out for the best.

If the patient is harmed, I suggest that the employer would be vicariously liable for any harm done, that’s not to deny that there may not be some push and shove between the employer’s insurer and the paramedics insurer, if he or she has one.

Where the treatment is something that can be done by patients and where ‘No serious adverse effects have been reported’ the risk of any adverse ‘implication’ would, I suggest, be very low.

Today’s question revisits an earlier post – Paramedics and mandatory reporting (May 29, 2019)  where my correspondent says that I:

… suggested that under the current reporting arrangements. a student paramedic who was found by paramedics suffering a drug overdose may be subject to a mandatory notification.

Given the new guidelines for treating practitioners announced for 2020, https://www.paramedicineboard.gov.au/Professional-standards/Mandatory-notifications.aspx, would the scenario play out the same way? My reading is that the paramedics would need to establish a direct risk to the public, or intoxication while practising to meet the burden for a mandatory notification. So, hypothetically, if the student was found suffering a drug overdose during their University break, while not on placement or even studying, can a credible risk to the public be established from a single interaction with paramedics. Likewise, would this same scenario apply to a student who sought treatment from their GP for an addiction-related issue.

How would you suggest people apply the test of establishing a “risk to the public”?

The Paramedicine Board has announced that

In 2020, the requirements to make a mandatory notification are changing. The changes aim to support health practitioners to be able to seek professional advice about their health without fearing a mandatory notification…

The changes apply to the mandatory notification requirements for treating practitioners – they do not affect the obligations of other registered practitioners (like colleagues), employers or education providers.

Under the changes, a treating practitioner only needs to make a mandatory notification about their practitioner-patient if there is a substantial risk of harm to the public from impairment, intoxication while practising, practice outside of accepted professional standards or where there is sexual misconduct.

This means that health practitioners who do not pose a substantial risk of harm to the public can seek professional advice without fear of a mandatory notification.

The new guidelines are not yet in place.  A consultation paper was released on 11 September 2019 and the consultation period ended on 6 November 2019.  As part of that process Draft revised Guidelines for mandatory notifications about registered health practitioners and Draft revised Guidelines for mandatory notifications about health students were released.

Although this question is about a student, it is the Draft revised Guidelines for mandatory notifications about registered health practitioners that is relevant. The ‘… notifications about health students’ guideline is about ‘students who, by undertaking a clinical placement with an impairment, are placing the public at substantial or very high risk of harm’.  It specifically does not include reporting by treating practitioners (eg a paramedic who is called to assist a person who, by coincidence, is a paramedic student ‘suffering drug overdose during their University break, while not on placement or even studying’).

The ‘… notifications about registered health practitioners’ does deal with treating practitioners.  It says (p. 11-14):

The conditions for treating practitioners to make mandatory notifications are more limited than they are for other people…

You must make a mandatory notification as a treating practitioner if, while treating another practitioner as your patient, you form a reasonable belief that they are:

• practising with an impairment
• practising while intoxicated by alcohol or drugs
• practising in a way that significantly departs from accepted professional standards, and
• engaging in sexual misconduct in connection with their practice…

With the exception of concerns about sexual misconduct, you should make a notification only if you believe there is a substantial risk of harm. A substantial risk of harm is a very high threshold for reporting risk of harm to the public. This allows practitioner-patients to seek and have treatment for conditions without fearing mandatory notification…

You may also need to make a mandatory notification about a student only if the student, doing clinical training with a serious and unmanaged impairment, is placing the public at substantial risk of harm…

If an impairment is related to or is a major cause of intoxication or departure from professional standards, consider how effective the practitioner-patient’s treatment is when you are deciding if it meets the very high threshold for reporting…

You must make a mandatory notification if you form a reasonable belief that your practitioner-patient is placing the public at substantial risk of harm (a very high threshold for reporting risk of harm) to the public by practising while intoxicated by drugs or alcohol.

The critical first question is ‘Do you have a reasonable belief that, by practising while under the influence of alcohol or other drugs the practitioner is detrimentally affecting their practice?’.  The second question (see flowchart, p. 14) is ‘Do you have a reasonable belief that the intoxication is placing the public at risk of harm?’

Every situation is different but if a paramedic is called to a person who happens to be a paramedic student, and who is ‘suffering a drug overdose during their University break, while not on placement or even studying’ has to ask those questions and consider the factors in the guideline and shown below:

If you have no reason to think that the student has practised whilst intoxicated, if there is no reason to think that this anything other than an isolated short term incident rather than evidence of chronic persistent drug dependency then one might conclude there is no reason to believe that the person is or has practised whilst intoxicated or that their current intoxication is placing any patients at harm (given that, at the time, they are not practising).  In that case as a treating practitioner you would not be required to report the person to AHPRA.

The same questions and risk assessment would indeed also apply to a GP who was treating a paramedic student for drug dependency. If the GP was satisfied that the student was ‘highly reflective and insightful’, was complying with prescribed treatment, was not intoxicated when at work, then he or she would not need to report the student to AHPRA.  That conclusion would be consistent with the policy objective that ‘health practitioners who do not pose a substantial risk of harm to the public can seek professional advice without fear of a mandatory notification’.

I’m not sure if this conclusion is different to my earlier post.  In that earlier post I said:

I shall assume, without debating it, that identifying the student paramedic has deliberately overdosed does give rise to a reasonable belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.

In my answer I did not address the question of whether a ‘a suspected [voluntary] drug overdose’ would or could give rise to the necessary belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.  If the treating practitioner did not form the view that the patient’s intoxication gave rise to a belief that he or she was putting the public at risk, then there was no need to report the person to AHPRA. I did not address that question because I was addressing the question of whether a patient’s right to privacy was trumped by the mandatory reporting obligations where that belief did exist.  In that earlier post I concluded that the obligation to report took precedence over the obligation to maintain patient confidentiality.

The draft guideline, when adopted, raises the bar to give greater weight to patient confidentiality and gives significant detail on how to assess that risk.  It is still the case, however, that if the threshold belief of risk to the public is met, the obligation to report trumps the obligation to maintain confidentiality.

Conclusion

Remember that the draft guidelines are just that. When they are finalised and come into force, we are told sometime this year, people will need to familiarise themselves with the final version.

Assuming that the ‘in force’ guidelines will mirror the draft then a treating practitioner, GP or paramedic, will only need to report where he or she has a reasonable belief that,

• by practising while under the influence of alcohol or other drugs the practitioner is detrimentally affecting their practice; and
• that the intoxication is placing the public at risk of harm.

Can a credible risk to the public be established from a single interaction with paramedics?  I would suppose that would depend on the history taken, what was said by the patient and others at the scene and the paramedic’s observations.  It certainly could be possible if the student made admissions to practicing whilst intoxicated.

How would I suggest people apply the test of establishing a “risk to the public”? That question is answered, in detail, in the draft Guideline complete with examples.  I would suggest people study that and refer to it should the need arise.

Today’s question is:

The New South Wales Rural Fire Service (RFS)  was formed by an act of Parliament, I believe the Rural Fires Act 1997. Does the Commissioner of the RFS have the power under the legislation to change any or all of the following or do they need to be changed by an act of Parliament, that is to say change the law.

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

The short answer is ‘yes the RFS Commissioner can change those things otherwise the RFS would be run by Parliament and that would be impossible’; but let’s look at more detail.

The Rural Fire Service is indeed created by an Act of Parliament (Rural Fires Act 1997 (NSW) s 8).  ‘The Commissioner is responsible for managing and controlling the activities of the Service’ (s 12).

The NSW Parliament does not want to be involved in the daily running of the RFS (or any other government department).  The legislature puts in place the architecture to establish the service, set out its functions and powers but then leaves it to the chief executive, in this case the Commissioner, to actually run the service.

With respect to service standards, s 13 says

(1) The Commissioner may from time to time issue written policy statements to members of the Service for or with respect to procedures to be followed in connection with the operation, management and control of the Service.

(2) Without limiting the matters with respect to which statements may be issued under this section, statements may be issued in respect of standard operating procedures, including procedures in respect of the following:

(a) fire reporting,

(b) operational co-ordination,

(c) operational planning,

(d) bush fire risk management planning,

(e) fire fighting assistance planning,

(f) standards of fire cover reporting,

(g) implementation of training standards,

(h) communications,

(i) brigade management,

(j) community education,

(k) protocols on relevant matters,

(l) health and safety.

(3) The Commissioner is, wherever practicable, to consult with the Advisory Council before issuing policy statements under this section.

The Commissioner is for all intents and purposes the relevant authority responsible for creating, managing and disbanding brigades (ss 15, 17, 20; Rural Fires Regulation 2013 (NSW) r 4; Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades and Service Standard 2.1.2 Brigade Constitution).  It is up to him, and not the Parliament to determine matters of procedure and policy within the RFS.

Conclusion

Standard operating procedures give effect to service standards and the Commissioner’s directions by indicating how the policy statements are to be made effective.  Creating Service Standards, SOPs and policy statements is fundamentally how the chief executive is ‘managing and controlling the activities of the Service’.

It follows that the Commissioner of the RFS has the power under the legislation to change any or all of the following:

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

Today’s correspondent says he is

… a member of a large research society and late last year I suggested they purchase a defibrillator.  I got the ‘ostrich head in the sand’ response – public liability, no one trained and similar excuses.  I am in the process of drafting a letter to the Committee pleading for them to reconsider.

I was wondering if you have any material that would be useful in levering their obligations to getting for their office space in the Melbourne CBD. I have noted the provisions of the Wrongs Act (Vic). It appears that unfortunately it is not a statutory obligation unlike hygiene, fire extinguisher, safety lighting etc to have one.   This aspect of a lack of legal obligation warrant me approaching my local member in the near future to have the relevant work care legislation amended to include defibrillators, of course conditional perhaps on the venue, number of people, distances etc

I have written a lot on the use of defibrillators.  On issues to do with the ‘ostrich in the sand’ attitude see:

• Fear of legal risk for installing AEDs is misplaced (September 17, 2019);
• Liability for installing, or not, an AED in a retirement community (December 1, 2018) and
• Choosing not to install an AED for spurious reasons (September 10, 2018).

But, for my view on why I don’t think AEDs will be made compulsory see Making the installation of AED’s compulsory (September 27, 2015) and Liability for failing to install an AED? (April 7, 2016).

Having said that there is a Bill before the SA Parliament to make AEDs compulsory (see A Bill to require installation of AEDs in South Australia (October 29, 2019)).  That Bill has not yet got past its first reading (see details on the Parliament web page) and I personally doubt it will ever see the light of day.

I don’t think Parliaments will ever make AEDs compulsory as it is against the current trend to ensure that people make their own risk assessment.  There is an obligation to provide first aid equipment and facilities (see Model Work Health and Safety Regulations (as at 15 January 2019) r 42)).  Victoria (and Western Australia) have not adopted the Model Act and Regulations so you need to look at the Occupational Health And Safety Act 2004 (Vic) and Occupational Health And Safety Regulations 2017 (Vic).  Neither of these have a general duty to provide first aid and first aid equipment that equates to r 42 of the Model Scheme. However a duty to ensure that there is first aid facilities can be implied by the general duty to provide for the health and safety of works (s 21).

WorkSafe Victoria says (Compliance code: First aid in the workplace (1st ed, 2008), p. 2):

4. The law requires employers to provide, so far as is reasonably practicable, a safe working environment and adequate facilities for the welfare of their employees. Section 21(2)(d) requires that, in meeting their duty under section 21(1), an employer must provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control.

5. This needs to include having appropriate first aid measures in place, including first aid kits and suitably trained first aid officers.

6. Employers owe the same duty to any independent contractors and their employees who are working at the workplace, but only for matters over which the employer has, or should have, control.

That equates both to my conclusion and the general duty in r 42 for an employer (not a PCBU in Victoria) to do a risk assessment and consider what is appropriate.

What will make AEDs compulsory is not legal rules but a situation where AEDs become so common place that they became part of standard first aid equipment.  Victoria still adopts a rather old-fashioned approach identifying the number of first aid kits required based on the number of employees (p. 8). The list if minimum kits contents (p. 8) is pretty basic, to say the least.   The compliance guide does say (p. 9) that

The employer needs to assess whether additional first aid kit modules are required where particular hazards exist. Some examples of commonly needed additional modules are those dealing with eyes, burns and remote workplaces.

The list of ‘Additional modules for first aid kits’ set out on pp. 25-26 does not refer to AEDs or oxygen or other resuscitation assistance.

WorkSafe Victoria acknowledge that this guide is out of date. They say:

… on 18 June 2017, the OHS Regulations 2017 replaced the Occupational Health and Safety Regulations 2007, which expired on this date. This compliance code has not yet been updated to reflect the changes introduced by the OHS Regulations 2017. Complying with a compliance code made in relation to the old regulations may not necessarily mean compliance with a duty under the new regulations.

Nor, I would suggest, has it been updated to reflect changing technology and expenses.

Conclusion

I do not think any Parliament will move to require AEDs because to do so would be contrary to modern trends to require an employer or PCBU or building occupier to do a risk assessment and ensure that they have in place facilities to adequately deal with reasonably foreseeable risks.   I have previously made the argument that whilst the risk of someone suffering a sudden cardiac arrest is 1; the risk of it happening at any given place is very low.  Equally we’ve all seen workplaces where the first aid kit cannot be found and when it is, all the contents are out of date. It follows that many employers or others may quite reasonably think there is little need to buy an AED.

Doing a risk assessment that leads to a conclusion that an AED is required equipment will depend, I suggest, on the enthusiasm of the first aid officer and the respect that he or she, and the office are held by management.  In terms of regulation it will not be an Act of Parliament but the development of guidance by agencies such as WorkSafe Victoria.  When compliance guides (and see also the Model Code of Practice: First Aid in the Workplace) start discussing AEDs and when they should be considered then employers and PCBU’s will be under legal pressure to install them.

POSTSCRIPT

In response to this post, Adj. Assoc. Professor Alan Eade ASM, Victoria’s Chief Paramedic Officer wrote and said:

Thanks for the work on these posts

These might be of interest and related to this topic:

https://www.bettersafercare.vic.gov.au/reports-and-publications/providing-first-aid-in-emergencies

https://www.worksafe.vic.gov.au/news/2019-07/call-more-life-saving-defibrillators-workplace

https://www.worksafe.vic.gov.au/use-automated-external-defibrillator-aed-workplace

Two of those links are to publications by WorkSafe Victoria. Whilst they do not compel an employer to install an AED but they will form part of the progressive steps that will one-day make AEDs a normal part of first aid equipment.

 

Today’s correspondent says:

The Prime Minister should be shortly making a determination as to whether or not PTSD deaths in the ADF will be reviewed by a Royal Commission.  Given the findings from a Commonwealth Senate Inquiry (2019) and NSW Parliamentary Inquiry (2018) into PTSD in first responder agencies, and the lack of Government action.  My thoughts were, if you viewed the ADF as international first responders, and AFP as national first responders down the line to the RFS and other support agencies, then this would be a good time to have a Royal Commission into PTSD deaths in First Responder Agencies…

My question is: Does the State or Federal Government have a definition for a ‘first responder’.

The only definition, in law, of ‘first responder’ that I can find is in the Health (Drugs and Poisons) Regulation 1996 (Qld) r 174A .  That regulation defines first responder as a:

… person who—

(a) is appointed as an honorary ambulance officer under the Ambulance Service Act 1991, section 14 ; and

(b) is classified as a QAS First Responder by the Queensland Ambulance Service.

There is no definition of ‘first responder’ in the Ambulance Service Act 1991 (Qld) or its Ambulance Service Regulation 2015 (Qld).  This is a very specific definition for a specific purpose.

Conclusion

In context of his question, we can say that no, the federal and state governments do not have a legal definition of ‘first responder’ other than the one from Queensland quoted above.

 

Today’s question is:

Is the RFS required by law to feed fire fighters working on a large fire?

If so, is there a requirement that the meal should arrive in a timely manner i.e. lunch at 1200Hrs and not 1500Hrs.

Is there a time frame involved meaning that past a certain hour another meal must be provided for example past 1700hrs an evening meal must be provided?

I’m going to assume we’re only talking about volunteer firefighters, not employed staff (whether employed by the RFS or another agency but working at a fire where the RFS is providing the incident controller/IMT). The reason for that limitation is that, for employees, there may be conditions on a relevant award or Enterprise Agreement that sets out meal entitlements and the question for them should be directed to a relevant trade union.

For volunteers there is nothing in the Rural Fires Act 1997 (NSW) or the Rural Fires Regulations 2013 (NSW) regulations that say anything about meals to firefighters.   RFS Service Standard 3.1.11 Application of Food Safety Standards (2007) says:

The RFS provides food during the course of, and in conjunction with, operational and training activities and to members of the public during fundraising or similar activities. The preparation, handling and distribution of food must be in accordance with applicable safe food handling practices, outlined in the Code and the Standards.

SOP 3.1.11-1 Framework for the Provision of Catering, published with the Standard (above) says:

1.1 The NSW Rural Fire Service provides catering during the course of its operational and training activities and to members of the public during fundraising or similar events. The RFS recognises that across the state there is a diverse capability in the delivery of catering…

1.3 Catering is the responsibility of the Senior Management Team (“SMT”) in each area. In the case of coordinated fire fighting, these arrangements should be agreed to by the Bushfire Management Committee…

2.1 The SMT will produce a plan that covers the provision of catering for training, hazard reduction and operations and will agree on the circumstances that trigger the provision of catering for each of these.

2.2 In the case of coordinated firefighting (class 2 and 3 fires), each Bushfire Management Committee will agree on the arrangements and include it in their Plan of Operations.

2.3 The SMT will agree on the type of catering that will be provided in each of these circumstances, e.g. light refreshments or full meal and what these should consist off.

2.4 The SMT will agree on who will provide the catering in each circumstance, e.g. brigade provisions, canteen or external provider.

2.5 The SMT will agree on the individual or individuals who are responsible for ensuring that catering is provided, e.g. individual brigade officers, operations officer, nominated logistic officer etc.

That documentation is a recognition that catering is to be provided but it does not give rise to a legal obligation nor does it address the matters raised by my correspondent.

The legal obligation will come from the Work Health and Safety Act 2011 (NSW) and its regulations.  Although volunteers are not employees, they are workers for the purposes of that Act and the WHS obligations the RFS owes its staff, it also owes its volunteers.  The Act imposes the primary duty on the RFS to (s 19):

… ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

The Work Health and Safety Regulation 2017 (NSW) says (r 41(1)):

A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities.

One can see that is an obligation to provide water (see Supplying water to firefighters (October 10, 2018)) but it is not an obligation to provide meals even though it is an obligation to provide a place to eat meals.

When considering what is required to meet a PCBU’s obligations under s 19 regard is given to (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

In this case the ‘hazard’ is the risk to firefighter safety if they are not adequately fed. Given the obvious risk to health and safety if people are fighting fires but are not adequately fed there would be an obligation to ensure that firefighters do get food. Given the nature of rural firefighting where people cannot stop work and step out to the local coffee shop, it would be easy to infer that there is a legal, not just a moral obligation to provide meals to firefighters.  The obligation cannot however be expressed in the sort of fine detail that my correspondent suggests.  It has to be a reasonable response; in some cases it may be issuing firefighters with a meal pack to take with them to eat when they want to and when they can. Other times it may be returning firefighters to a central logistics area for food, other times it may involve delivering food to the fire ground. There could not be a rule that says ‘lunch at 1200Hrs and not 1500Hrs’ because what is ‘timely’ would depend on, amongst other things, the time the firefighters’ started work.  If they started at midday, 3pm may be a great time for a meal break, but not if they started at 9am.

With respect to the provision of meal facilities (r 41) regard is given to (r 41(3)):

(a) the nature of the work being carried out at the workplace,

(b) the nature of the hazards at the workplace,

(c) the size, location and nature of the workplace,

(d) the number and composition of the workers at the workplace.

Again, given the nature of firefighting the best that might reasonably be provided might be hand washing facilities on the fire truck and not much else.

Conclusion

I cannot locate any specific legal obligation on the RFS to feed volunteer fire fighters working on a large fire.

A general obligation to do so would exist by virtue of the Work Health and Safety Act 2011 (NSW).  The WHS Act requires the PCBU to respond to a risk to health and safety with measures that are ‘reasonably practicable’. The Act has moved away from detailed rules to an obligation upon the PCBU in consultation with workers to manage the response to the risk. What follows is that although there may be a requirement to provide food, there can be no requirement that sets out the hours of meals. Such a requirement would be inappropriate and impossible to manage given the nature of rural firefighting.  It could not, and should not, be a breach of a legal obligation if the meal cannot be delivered on time because the delivery vehicle can’t get past the fire and the firefighters can’t eat it anyway as they cannot put their hoses down mid-fire and call ‘smoko’.

This conclusion is reflected in SOP 3.1.11-1 which does not set out details on what meals are provided when, but requires the SMT to plan for catering, recognising that different events will create different needs.

In short there has to be a general obligation to ensure firefighters have access to food but no, there is not and could not be a requirement:

… that the meal should arrive in a timely manner i.e. lunch at 1200Hrs and not 1500Hrs [or] …a time frame involved meaning that past a certain hour another meal must be provided for example past 1700hrs an evening meal must be provided.

The obligation is to address, as far as reasonably practicable, the risk to firefighter health and safety that arises if they are not adequately fed.

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Today’s correspondent says:

I know that you have previously explored questions around the responsibility for damaged caused by NSW RFS (https://emergencylaw.wordpress.com/2019/12/01/recovering-the-cost-of-damage-by-rfs/) and by Fire + Rescue NSW’s Rescue Squads (https://emergencylaw.wordpress.com/2016/12/15/who-pays-for-damage-done-by-the-rescue-squad-in-nsw/), but what about NSW SES crews?

I know that the State Emergency Service Act 1989 (NSW) s 25A states that damage caused in good faith by a “senior emergency officer”, or “a person acting on or in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency for the purposes of any policy of insurance … that covers the property.”

Which brings me to the scenario I want to explore. If a crew attending a job cause accidental damage to property not already damaged, does this section cover that?

I note that section 22A (1) deals with shutting off utilities, or moving/removing/destroying property if needed, but it is not so clear on damage which is not deliberate.

I am sure you have explored the definition of “senior emergency officer” within the scope of NSW SES before, so I will try and find that, but it is also not clear on how detailed the direction given by the Commissioner or senior emergency officer would need to be to satisfy this rule. Is working within the Commissioner’s Intent sufficient, or would a direct order be required to invoke this rule?

The Rural Fires Act 1997 section 28 seems much clearer in comparison:

“Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.”

What are your thoughts?

Should accidental damage to a property, caused by an SES member, acting in good faith, be covered by insurance held by the homeowner?

It’s true that I have made some comment on ‘the definition of “senior emergency officer” within the scope of NSW SES before’ see

• NSW SES Emergency and Senior Emergency Officers, and the police (July 10, 2014);
• NSW SES Emergency and Senior Emergency Officers, and the police – Part 2 (July 15, 2014); and
• Confusing titles of “emergency officer”, “senior emergency officer” and “emergency services officer” in NSW (November 15, 2019).

Let me then turn to the sections relevant to this question.  Section 22A(1) says:

(1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following:

(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

One can immediately see how this can cause damage.  If the electricity is cut off frozen goods perish, cut off fuel and kitchens close.  And of course taking possession of an destroying things costs the owner.  It must be noted, as my correspondent does, that the section is quite limited.  It’s about turning off gas and other utilities and ‘taking possession of and removing’ things that pose a danger.

Section 25A(1) says:

Any damage to property caused by the exercise in good faith of functions under section 22A (1) by:

(a) the Commissioner or a senior emergency officer authorised by the Commissioner during an emergency to which Part 5 applies, or

(b) a person acting on and in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency to which Part 5 applies, is taken to be damage by the happening that constitutes the emergency (being flood, storm, tsunami or other risk, contingency or event) for the purposes of any policy of insurance against the risk, contingency or event concerning an act or omission that covers the property.

Let me then turn to the questions:

It is … not clear on how detailed the direction given by the Commissioner or senior emergency officer would need to be to satisfy this rule. Is working within the Commissioner’s Intent sufficient, or would a direct order be required to invoke this rule?

It would be my view that a direct authority would be required. To go back to s 22A, it says “

The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following…

Clearly that has to be specific. The Commissioner has to direct a senior emergency officer to take the action listed in subparagraphs (a), (b) and (c).  It’s not some ‘general’ direction or authority to do whatever he or she thinks fit.  Given the senior emergency officer is ‘authorised’ to take the action under s 22A a direction to another member must be a specific direction to do the things listed in s 22A.

Presumably a senior emergency officer would not direct a member of the SES to cut off the gas or electricity, that direction would be given to an plumber or electrician.  The direction to remove a hazard may be given to, say Fire and Rescue NSW (given their expertise in HAZMAT) but depending on the nature of the ‘thing’ and the hazard, it may be given to an SES crew – “remove that thing out of the emergency area…”

Section 22A requires a specific authority or direction. Further this is conduct that is known will cause harm or loss to others. A right to interfere with the private rights of others will always be strictly construed.  It would be my view that a direction under s 22A would have to be a specific direction. Working within the Commissioner’s Intent would not be sufficient given the need for specific authority.

If a crew attending a job cause accidental damage to property not already damaged, does this section [s 25A] cover that?

The answer to that is clearly ‘no’. Section 25A is very specific.  It only applies to conduct under s 22A(1); that is a decision to disconnect gas or other utilities (s 22A(1)(a) and (b)) and taking and removing or destroying anything that causes a hazard (s 22A(1)(c)).  There is no logical way to extend s 25A to other damage.

The difference between the RFS and the SES is that a fire brigade is authorised to do much more damage in the course of their duties – they can cut fences, create fire breaks, set back burns, destroy buildings etc.  The insurance provision is still only applies when the firefighters are exercising a function under the Act.

Should accidental damage to a property, caused by an SES member, acting in good faith, be covered by insurance held by the homeowner?

That’s not for me to say.

I have written a lot on the Celeste Barber fundraiser that has raised in excess of $50m for the Trustee of the NSW Rural Fire Service & Brigades Donations Fund.  I write now to respond to many comments that have been made on the Facebook donations page for the fundraiser.  There are thousands of comments so I’m not going to try to quote them or acknowledge the authors as, having read them, I’ll never find them again.  It means that some of the response may be based on my impression of and inaccurate recollection of what was said or implied rather than the exact words.

Let me also add that nothing written here implies or is intended to imply that Ms Barber has done anything wrong in setting up this fundraiser.  If people’s comments reflect their understanding or expectations that is not a reflection on Ms Barber.

Facebook fundraiser

On 3 January 2020 Celeste Barber set up a Facebook Fundraiser page asking people to donate to the Trustee of the NSW Rural Fire Service & Brigades Donations Fund.  She said:

Want to join me in supporting a good cause? I’m raising money for The Trustee for NSW Rural Fire Service & Brigades Donations Fund and your contribution will make an impact, whether you donate a lot or a little. Anything helps. Thank you for your support.

Who the recipient was to be was clear.

The Facebook donations page says that to set up a fundraiser the person must

1. Click Fundraisers in the left menu of your News Feed.
2. Click Raise Money
3. Select Nonprofit or Charity.
4. Select a charitable organization, choose a cover photo and fill in the fundraiser details.
5. Click Create.

Presumably Ms Barber did this and at step 4 nominated The Trustee of the NSW Rural Fire Service & Brigades Donations Fund.

To donate, people:

1. Click Donate on the post.
2. Enter the amount you’d like to donate.
3. Select a payment method or enter your payment information.
4. Click Donate [Amount].

Facebook distributes the funds in accordance with the directions from the donor (ie the person giving the money, not the person who established the fundraiser).

An organization’s location and enrollment status determine how donations made through Facebook are paid out. Facebook covers payment processing fees so that 100% of donations made on Facebook are distributed to the organization…

Charities based in Australia … can receive donations through PayPal Giving Fund Australia …

All fees are covered by Facebook.

First conclusion

The first conclusion is that Ms Barber never received and was never going to receive any of the donations.  People who ask her ‘when are you going to distribute the money?’ have missed the point.  It is not her money to distribute.  The person donated money to the PayPal Giving Fund Australia when they pressed ‘donate’ and at the same time they gave PayPal instructions to give the money to the Trustee of the NSW Rural Fire Service & Brigades Donations Fund once PayPal had confirmed that this was indeed a charity eligible to receive the donation (see Trust Deed for PayPal Giving Fund Australia and PayPal Giving Fund Donation Delivery Policy).

Second Ms Barber is given credit for PayPal not charging fees associated with the donation.  In a video that I have seen she says words to the effect that she asked them to waive the fee and they said they don’t charge fees.  She doesn’t say ‘they waived them’ but comments I have read do infer that some people think it was her intervention that led to no fees.  Facebook says:

We cover all fees for donations made on Facebook to charitable organizations. For personal fundraisers, payment processing fees are deducted and, in some countries, additional taxes when the money raised is distributed.

This is not something unique to this fundraiser or a response to Ms Barber’s request.

Trusts

The PayPal Giving Fund and the NSW Rural Fire Service & Brigades Donations Fund are both trusts.  Trusts represent a particular legal relationship.  There is the trustee, the trust property (in this case the $51m) and the beneficiary.   The trustee is the legal owner of the property but can only use the property for the benefit of the beneficiary.  This is not a silly legal rule, it guarantees the interests of beneficiaries against unscrupulous trustees.

In essence when a trustee receives money the trustee must use the money for the purpose for which it was received.  The purpose of the trust will be set out in a trust deed or will or other document that creates the trust.  In this case there are two relevant trust deeds – the deed that governs the PayPal Giving Fund and the deed that governs the NSW Rural Fire Service & Brigades Donations Fund.

The PayPal trust deed says that the trustees have discretion on where to distribute the money.  The donor’s instructions when they pay the donation is a factor to consider but they can diver the money elsewhere but as they say in their public document they only redirect the money where the gift fails or the nominated charity is not eligible to receive the benefit (see the Trust Deed and Delivery Policy cited above).

Given neither of those circumstances will be true in this case there is no reason for PayPal to redirect donations.  If they did they would frustrate those that did donate with the correct understanding that their donation was to go to the NSW Rural Fire Service & Brigades Donations Fund for the purposes of that fund.  It would also put at risk PayPal’s standing as a trustworthy way to donate.

Assuming PayPal pass the money, as instructed, to the NSW Rural Fire Service & Brigades Donations Fund then the trustees of that trust will have to use the money in a way consistent with that deed (Trust deed cl 3.3).

Second Conclusion

Although there is a theoretical option of PayPal to redirect the money that is unlikely given the criteria that they set out to explain when they will redirect funds will not be made out.  It is not PayPal’s role to reallocate funds if they think people did not understand who they were donating to. It is there role to honour their instruction, made when the donor pressed ‘donate’.

If there was a decision to reallocate any of the money it would be the decision of the trustees, not Ms Barber. She is not the trustee; she does not hold the money.

The NSW Rural Fire Service & Brigades Donations Fund

The New South Rural Fire Service is created by the Rural Fires Act 1997 (NSW). It is a government operated service just like Fire and Rescue NSW and NSW Police.  It depends on volunteer firefighters to operate, but the service itself is part of the NSW Government.  If the Rural Fire Service is sued, it is sued as ‘The State 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 litigation alleging negligence by the RFS in its management of the fires that ultimately burned into the Australian Capital Territory and Canberra).

The various brigades are established by the Commissioner (Rural Fires Act 1997 (NSW) s 15; acting on delegated authority from local governments -RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades).   Brigades are an administrative unit of the Rural Fire Service in the same way that a fire brigade is part of Fire and Rescue NSW (Fire and Rescue NSW Act 1989 (NSW) Part 2). The brigades do have some existence; each brigade is created (s 15) so it makes sense to talk about the ‘Kickatinalong Rural Fire Brigade’ being the Brigade established by the Commissioner for the area of operations defined by the Commissioner (s 18) and made up of the members listed in the register maintained by the Commissioner (s 20). It therefore makes sense to say someone has donated money for the Kickatinalong brigade but the beneficiary of that donation is in law the Rural Fire Service (or, more accurately, the State of NSW).

The trust deed says that the trustees can apportion money to brigades (so they can earmark the amount of any donation intended for a particular brigade for the use of that brigade (cl 4)) but if that brigade ceased to exist the beneficiary is the RFS so the trust can use that money to give to the RFS Central Fund or allocate to another brigade.

Assuming this donation is not earmarked for a single brigade, it will go into the Central Fund and the beneficiary will be the Rural Fire Service represented by the Commissioner but the trustees can still only spend the money for the purposes of the trust. It will be up to the Commissioner to nominate what he would like to spend the money on, and the trustees to determine if that meets the purpose of the trust.

The trust was established (2017-2018 Annual report):

… 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.

The trust was set up to obtain Deductible Gift Recipient States so that if someone wanted to donate to their local brigade they could give the money to the trust, receive a receipt to allow them to claim a tax deduction and the trustees would ‘earmark’ the amount equal to the donation as being available for the named brigade (Trust deed cl 4).

This fund is a ‘Fire and Emergency Services Fund’. To obtain and maintain Deductible Gift Recipient status is has to be

A public fund that satisfies all of the following requirements:

it is established and maintained by a non-profit entity or an Australian government agency

• the principal activity of the entity is providing volunteer-based emergency services that are regulated by a state or territory law
• it is established and maintained solely for the purpose of supporting the volunteer-based emergency service activities of the entity.

The NSW Rural Fire Service & Brigades Donations Fund meets those criteria – it is a public fund (Trust Deed cl. 2.6), it is established ‘Australian government agency’, which means:

• the Commonwealth, a state or a territory
• an authority of the Commonwealth, a state or a territory.

The RFS is established by the State of New South Wales as an authority of that state.

It is ‘established and maintained solely for the purpose of supporting the volunteer-based emergency service activities of the entity’ (Trust deed cl 2.3).

Having received the money the trustees are only allowed to spend it for the purposes of the trust – (Trust Deed cll 2.3 and 3.3). If they used the money for other purposes they not only risk personal liability for breach of trust, they would threaten the funds Deductible Gift Recipient status.   The only use that they can make of the funds is (Trust Deed cl 2.3):

(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.

The trust fund is not the sole income of the Rural Fire Service.  I saw one comment to the effect that 95% of the RFS budget comes from donations. That is not correct.  95% of the funds in the NSW Rural Fire Service & Brigades Donations Fund come from donations but that is because it is a donations fund.  The budget for the RFS in 2017-18 was $424 million provided by the Government (see Diverting facebook donations (January 6, 2020)).

Third conclusion

Under the current trust deed the trustees cannot redistribute the money to other charities for other purposes or to fire brigades in other states and territories. Money donated to this fund was never for direct payment to firefighters or to those affected by the fire or for animal welfare.  That is not what this trust was set up to do.

There may be ways to allow for a diversion of some of the $51m. Some suggested ones are:

1. A special Act of Parliament
2. An order from the Supreme Court (but on what basis I don’t know as the trust has not failed and the deed is not ambiguous)
3. Wind up the trust and allow the trustees under cl 11 to redistribute the funds (see Donations to RFS trust on hold (January 13, 2020)).

Whether any of those options are pursued or whether the RFS lawyers think of any other option, the outcome will depend on the RFS, not Ms Barber.

Administrative costs

Many people complain that donations are eaten up in administrative costs.  In this case there was a trust fund used to receiving small donations to support local brigades – a hundred dollars here or there.  To give them $51m, particularly when it comes with expectations that it will be spent in a way that the trust has never operated will incur expenses that have to be met.   It is like a church auxiliary run a fund raising effort to collect $30 000 to repair the church roof and someone gives them $51m and then asks ‘why aren’t you spending that money or welfare for the poor etc?’  The answer would be ‘we don’t know how to spend $51m and what’s more we promised to spend all the money you gave us on the roof’.

Giving this sum of money to the NSW Rural Fire Service & Brigades Donations Fund with expectations that they will spend it in ways that they are not authorised to do and is outside their experience might be described as a nightmare (Diverting facebook donations (January 6, 2020)) or more charitably as ‘a challenge for the organisation, but … a “nice challenge to have”’ (Donations to RFS trust on hold (January 13, 2020).  Either way it is going to incur administrative expenses to set up systems to manage the donation and, if the RFS wants to distribute the money to meet (at least some) expectations, dealing with the legal issues caused by this donation.

If people are worried about delays in releasing the funds to the RFS or how it might be spent, remember this challenge was something delivered to them (albeit with a very nice potential cheque for $51m).  It will cost money to set up and manage this sum of money no matter what is done with it.

Where will it go

People have all sorts of ideas what the money will be used for.  It won’t be used for fire appliances – the Commissioner has promised

… that I’ve had the conversation with the Minister and the Premier and there won’t be any cuts to money for this. As a matter of fact I’m very conscious that whatever we spend here is not to be what Government would normally provide for.

It is unlikely to be used for facemasks.  Firefighters have been calling for different masks but these have not been issued by the RFS.  The RFS is the Person Conducting the Business or Undertaking (the PCBU) for the purposes of the Work Health and Safety Act 2011 (NSW).  It owes the same duty to provide a safe work place for both volunteers and paid staff.  Issuing personal protective equipment requires an assessment of various items and a balancing of costs and benefits.  I understand that the RFS issues P2 masks as other masks haven’t been assessed and require considerations of being fit for purpose.  Where equipment is issued there is an obligation to ensure it is maintained and those that use it are trained.  There are many reasons, other than money, why the RFS might determine that the best solution taking everything into account is P2 masks.  The issue has not been money so giving this money won’t ensure that the RFS now spend it in that way.  Another charity has got around that by buying masks and handing them out rather than giving money to the RFS in the hope that they’ll spend it in a particular way (see Donated respirators for RFS firefighters (updated 12 January 2020) (December 29, 2019).

A prudent trustee would not spend all this money.  If they do buy new equipment they need to ensure that there is money for training and maintenance and to meet future needs.  I would suggest that a prudent trustee would invest a large part of the money in order to secure a future and ongoing supply of money into the future.  That is permitted by the Trust Deed (cl 5.1).

Conclusion Four

People who expect this money to be used to fund the immediate relief of those affected by bushfires have donated to the wrong fund. This is not ‘governments’ taking their share off the top, or misappropriation by the charity, or lawyers getting in to take their share.  Ms Barber’s not pocketing any money; PayPal’s not pocketing any money. The NSW RFS will get the benefit of the money because it was donated to a trust fund established so people could make tax deductible gifts to the RFS to be used to support the RFS brigades and volunteers.  That is what is was for.  But the RFS is likely to recognise that there is a weight of expectation that the money may be used in other ways. They may be looking at how to do that.  Whatever they decide, they will need to take time to consider how they will manage this donation.  If people have expectations that the money will be used for purposes other than those set out in the trust deed, and if those expectations are not met, it will not be the fault of either the RFS, the trustees or PayPal.

Conclusion

• Ms Barber set up a fundraising page and that was great.
• Over 1 million people donated and that is awesome.
• The total donation is over $50m, people’s generosity is staggering.
• The money is earmarked for the NSW Rural Fire Service & Brigades Donations Fund so every donor can get a deduction (at least if they pay tax in Australia) and that’s great.
• The RFS is a wonderful organisation staffed by great people – employed and volunteer alike. The trustees and the Commissioner will no doubt use the money to enhance the capability of the service into the future.  They are deserving recipients.
• Expectations that the money was to be, will be or can be distributed to other charities for other purposes are and have always been misplaced. If the RFS finds a way to do that the credit will belong to the RFS and its lawyers.
• Ms Barber did not collect the money; she did not donate the money; she did not ‘persuade’ Facebook or PayPal to waive fees as they don’t charge fees when collecting for not for profits. (And let me add here, I don’t for a moment suggest that she has claimed to have done those things; but comments on the donations page imply people think she did those things).
• Ms Barber may have some moral say in what happens to the money as it was her call for donations that raised the money and she has a large and loyal following so she carries a large weight of public opinion – a constituency if you like – but legally the allocation of the money has nothing to do with her.  Donors allocated their money when they pressed ‘donate’ – she asked donors to donate to the NSW Rural Fire Service & Brigades Donations Fund and they did.   The responsibility for what to do with the money lies first with PayPal and then with Trustee of the NSW Rural Fire Service & Brigades Donations Fund and they must, first and foremost, act in accordance with the governing trust deeds.  Anything else would, literally, be a breach of trust.

I have previously written on calls for an inquiry following the current fire emergency – see Next comes the inevitable inquiry (January 7, 2020).  The Prime Minister continues to float the idea of a Royal Commission and others are now publicly questioning the value of yet another inquiry:

• Kevin Tolhurst, ‘We have already had countless bushfire inquiries. What good will it do to have another?’ The Conversation (16 January 2020) (republished on ABC News (Online) (16 January 2020);
• ‘Firefighters are urging Scott Morrison to rethink federal royal commission into bushfires’ SBS (Online) (15 January 2020); and see also
• Michael Eburn and Stephen Dovers ‘What sort of inquiry should come after these fires?‘ Pearls and Irritations (7 January 2020).
• For commentary on the value of a Royal Commission see Scott Prasser, ‘How Royal Commissions can both help and hinder’ Australian Financial Review (14 January 2020).

I again join in these calls to reconsider the value of a Royal Commission.

In research that I did with my colleague Prof. Stephen Dovers we looked into why firefighters reported concerns about potential liability for their action.  We discovered that it was not liability (as a lawyer would use the term) that was the problem, it was the legal process that was the issue (‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire 488-497).  The legal process is often, if not always, adopted in modern Royal Commissions so it can further traumatise those that have been involved in the fires.

In our research and published papers we have argued that there needs to be a better way to learn lessons without sacrificing the good will of those involved in the emergency.  An inquiry, like litigation, is necessarily retrospective rather than a tool to help communities recover from the event (see Eburn, M., ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13.

In our CRC report (Learning for Emergency Services: Looking for a new approach (2017)) we said:

After a significant hazard event there are pressures to call an independent inquiry. Hopefully the driving force is a desire to identify what happened and identify lessons that may better inform future practice, but the reality is that there are multiple ‘other’ considerations that influence the decision to establish an inquiry. Royal Commissions and coronial inquiries have a tendency to fall back on tried and true legal behaviour with lawyers seeking to protect their client’s interests; witnesses are required to answer questions rather than tell their story; fact finding and recommendations are limited by the particularities of the event, the terms of reference or the governing legislation. Each inquiry makes recommendations to avoid the last event, but the next event will not be the same as the last event – ‘a tendency … to spend the peace time studying how to fight the last war’.

Recommendations are necessarily counterfactuals, they are predictions that some other approach or some reform will work better but the future possibility is being judged against a past, known outcome. What implementation of the recommendations will actually achieve is unknown until the next event and sometimes diligent application of one inquiry’s recommendations will produce a result that is subject to a contrary-recommendation after the next event.

Identifying areas of improvement and making recommendations may not help. Recommendations may not be implemented, may be impracticable or may conflict with other social and policy concerns. The agency required to implement them may reject the inquiry’s balance or not accept the quality of the evidence that the inquiry relies upon.

Royal Commissions are great when you want to get information from people who do not want to share (corrupt police, bankers or abusive aged care providers).  A Royal Commission is not the best way to learn lessons from an event such as this.  The government should avoid the temptation to call a Royal Commission in order to be seen to be doing ‘something’.  There has been extensive research and action on bushfire management, the development of community resilience, fire warnings and the like.  The Commonwealth has been part of that research through the Bushfire and Natural Hazards CRC and before that the Bushfire CRC.  The Commonwealth has developed and been implementing policy statements such as the National Strategy for Disaster Resilience (2011) and the National Disaster Risk Reduction Framework (2018).

The fact that these fires have occurred does not mean that there has been any failure in planning for or responding to the fires (though it may imply a failure in steps to prevent or mitigate the risk of fire).   A response plan (such as the various state emergency management plans and the Commonwealth’s disaster plan – COMDISPLAN) are activated when there is a disaster.  The fact that the disaster occurs does not mean the plan failed.  Communities are resilient to fire when they are able to survive and recover after the fire, the fact that the fire occurs or that property or lives are lost does not meant that work to enhance resilience has failed.  As Tolhurst says ’Another royal commission will only reiterate what we have known for decades’.

Today’s correspondent asks

What protection do Civilian volunteers have when assisting the NSW RFS on a fireground?

One group officer told me that if —‘the neighbours and anyone else shows up to help fight the fire write their names down and they are covered [by insurance]’.

Is their protection/compensation available for machinery and or personal injury sustained by a volunteer helping the NSW RFS on a fire ground fight a fire?

The short answer is ‘yes’.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) provides for compensation for injuries and other losses suffered by firefighters and other emergency workers.  For the purposes of that Act a firefighter is (s 5):

(a)          an official fire fighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades,

(b)          any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire:

(i)            with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or

(ii)           in conjunction with any civil authority, and

(c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be a fire fighter.

If ‘the neighbours and anyone else shows up to help fight the fire’ and act as part of a coordinated firefighting effort with the RFS they are, for the purposes of this Act, a ‘firefighter’.  They are then eligible for personal injuries compensation (ss 10-11) and for loss of personal property (ss 12-14).

Today’s correspondent is

… a volunteer firefighter in the NSW RFS . I am the subject of a formal complaint and have been stood down.

How do I get a copy of the formal complaint made against me . I note the Service standard requires the complaint to be made in writing and signed.

Service Standard 1.1.2 Discipline says (at [3.4]) ‘A member may make an allegation of a breach of discipline (allegation)…’  Clause [3.5] says:

An allegation must be:

1. Made in writing; and
2. Signed by the person making the allegation.

Once the allegation is made, it is to be investigated following the procedures set out in SOP 1.1.2-2.

If the investigating officer determines that there is a case to answer, a report must be made to the appointing officer ([2.6]) that includes:

… the original allegation unless there are special circumstances that justify the identity of the person making the allegation being kept confidential and the withholding of the identity of the person making the allegation does not prejudice the respondent.

It does not follow that the member must receive the initial allegation.  There may be good reasons why that should not happen. And the original allegation may give rise to an investigation that produces evidence of misconduct such that the initial allegation is irrelevant.

Issues of access to the initial complaint were discussed in Speer v NSW State Emergency Service [2018] NSWCATAD 226 and report in my post Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

Conclusion

The answer to the question is that if the RFS won’t release the original signed allegation, the respondent (my correspondent) should make an application under the Government Information (Public Access) Act 2009 (NSW).  If that is unsuccessful then consideration could be given to appealing that decision to the NSW Civil and Administrative Tribunal.  In each case one would have to argue that there was actual prejudice in not having access to that document as opposed to the nature and substance of the alleged grounds of misconduct in any other document provided.

 

An article in The Australian (Deborah Cornwall, ‘Celeste Barber $50m donations in limbo as legal solution sought’ The Australian (Online) 11 January 2020) reports that:

Lawyers for Barber and the RFS have spent the past few days trying to find a way around the limitations of the trust so the money could be spent as donors intended.

The dilemma for the RFS was that Barber had made it clear to her 6.5 million Instagram followers that the money was intended to go to the country’s hero volunteer firefighters and the families of volunteers who had been killed as well as bushfire victims and ­injured animals…

A spokesman for PayPal told The Weekend Australian on Friday night that the company was holding on to the money at this stage only to allow the RFS to ­resolve the “challenges they are encountering”…

He said the near $50m ­donation posed a “unique” challenge for the RFS, and PayPal had agreed to wait until it had resolved the issue…

“They (the RFS) are working through the challenges they are encountering, and the moment they have a solution we are ready.

“We are very mindful they have a day job, a massive day job.

“We just don’t want to make things any harder for them.”

There must indeed be massive challenges.  The trustees that are responsible for the RFS Brigades and Donations Fund are used to having a budget of around $1m. Where a charity grows from $1m to in excess of $50m, the processes and procedures would grow with it. To manage this sum of money would necessarily require investment in systems to ensure the money can be received and accounted for. To grow from $1m to $50m overnight does not allow that sort of growth. According to Commissioner Fitzsimmons (quoted in Ben Doherty, ‘Bushfire donations: where will the millions that have been given be spent?’ The Guardian (Online) (7 January 2020)

… allocating the “extraordinary” influx of donations from the public, now into the tens of millions of dollars, would be a challenge for the organisation, but that it was a “nice challenge to have”.

It is no surprise that the RFS trust has asked PayPal to hold the money until they can get in place the systems they need to manage the money.

Added to that is the complexity that the trust can only use the money for the purpose of the Trust (The Trustee for NSW Rural Fire Service & Brigades Donations Fund, Trust Deed, 6 March 2014 [2.3]), that is to give, or spend the money:

… 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…

Many donors appear to have believed that the money would be available for other purposes, even though the call for donations specifically said (emphasis added):

Want to join me in supporting a good cause? I’m raising money for The Trustee for NSW Rural Fire Service & Brigades Donations Fund and your contribution will make an impact, whether you donate a lot or a little. Anything helps. Thank you for your support.

Nothing there said the money was going anywhere else or for any other cause.  Details of the beneficiary were given as shown below:

The link from her page (not active in the screen shot, above) takes readers to the relevant record held by the Australian Charities and Not-for-Profits Commission. It lists ‘Who the charity helps’ as ‘People in rural/regional/remote communities; Victims of disaster; General community in Australia’.  That may be ambiguous, but it is open to interpretation to say it does those things by helping to ensure those communities have a funded rural firefighting service.  That list is followed by a more detailed statement that says ‘Funds are utilised to purchase equipment for use by NSW Rural Fire Brigades across the State.’

It’s hard to know how people did not understand where the money was going and what it was for.  Even so, one has to conclude that it is indeed the case that many people did donate and they did not understand that they were donating to a single beneficiary, a trust fund established to support the NSW Rural Fire Service (a government operated fire service).  They did not understand that they were not giving money to Ms Barber to distribute.

Save for that list of ‘Who the charity helps’ it could not be said that the RFS trust contributed to anyone’s erroneous beliefs in what a donation to the fund was for.  On that view the RFS and the Trustees could say that if people’s expectations were unrealistic, it is not up to them to meet those expectations.  But the size of the donation, the number of donors and the political harm both to the RFS and to government means that ignoring those expectations is not really an option.

Doherty (in the article cited above), says Commissioner Fitzsimmons ‘… pledged to spend the donations [then standing at $33m] “where it was intended”, directing the money towards fire victims as well as the fire service itself.’  The reference to ‘directing the money towards fire victims’ is not identified as a quote so it’s not clear if that’s Doherty’s interpretation of ‘where it was intended’ or what the Commissioner said, but we can assume, for the sake of the argument that this is the Commissioner’s intention.   That does not however address how that might be achieved.

Justin Choveaux, general manager of the Rural Fire Brigades Association of Queensland, is reported to have said, when told of a $200 000 donation (Kym Agius, ‘Kylie Jenner donates $200,000 to Queensland’s firefighters’ ABC News (Online) (9 January 2020)):

‘are you sure it’s us?’…

‘we are the Rural Fire Brigades Association, we support brigades and volunteers in Queensland, if you want your money to help people who have lost everything that’s not us, we don’t do that’.

Equally the RFS Brigades Donations fund does not (or at least did not) do ‘that’ (ie help people who have lost everything or wildlife) but the donations have already been made and were made explicitly to the Trust so they cannot ask the question ‘are you sure it’s [for] us?’ They certainly cannot ask Ms Barber because, to make the point I have made in earlier posts, she is not ‘the’ donor.  She set up the page and asked people to donate, but it is the individuals who are the donors and they all pressed a button to donate to the charity she had nominated. They did not give money to her to distribute.

In another interview quoted on the Facebook page of the Public Service Association of NSW, Commissioner Shane Fitzsimmons is quoted as saying:

“What we’d really like is things like modern electronic resource tracking systems… There’s technologies into vehicles, there’s technologies in the air, there’s satellite programs that would assist us with live intelligence. Goodness knows where this will go, and we’ll work very closely with our Rural Fire Service Association and the volunteers and the members and get as much feedback as we can. What are their priorities? What are their thoughts? There might be multiple different things we can do to help them.”

Sarah Macdonald – “I hope this doesn’t mean the Government thinks it can cut some money though because it’s getting so much money from elsewhere.”

Shane Fitzsimmons – “You can be assured Sarah that I’ve had the conversation with the Minister and the Premier and there won’t be any cuts to money for this. As a matter of fact I’m very conscious that whatever we spend here is not to be what Government would normally provide for.”

The RFS is an excellent organisation, run by an inspiring commissioner and dependent on extraordinary volunteers.  No one should begrudge them the donations nor doubt for a minute that they money won’t be well spent.  But reading the social media comments of donors one cannot help but think this is not where they thought the money would be going.  If it’s not to be used to provide ‘…what Government would normally provide for’ it won’t be buying new tankers or water bombing aircraft.

As one correspondent to this blog says:

… the RFS cannot use the money to purchase trucks or stations as they provide these under capital expenditure- the fund acts as a conduit for brigades to access funding to pay for everyday items such as paying phone bills, buying items such as TVs etc for training and other run of the mill operational expenses ie P.O. Box fees etc

No one could reasonably expect the RFS to keep, and use, $50m to buy TVs and pay for the rent on post office boxes.

A possible solution?

A correspondent to this blog, on Facebook wrote “surely the RFS could set up another trust fund so this amazing money could be spent as donors & Celeste would like.”  That may be an option.

The RFS could, I suppose, create a new trust – let’s call it, for the sake of the argument ‘the RFS Bushfire Relief Fund Trust’ – with more expansive purposes allowing the trust to grant money to those involved in bushfire relief etc.  Setting up that trust could involve setting up a corporate entity, appointing a board, drafting a trust deed and given the amount of money involved employing staff.   Once it is established, trustees of the RFS Brigades Donations fund could ask PayPal to release the donated money.

Once they have the money the trustees of the Brigades Donations Fund could vote to wind up or dissolve the trust.  When the trust is wound up (cl 12.1):

… any surplus assets of the Trust … shall be paid or transferred to such one or more entities, funds, authorities or institutions that are Deductible Gift Recipients as the Trustees think fit and shall be nominated by the Trustees in writing, in such proportions and at such times as shall be determined by the Trustees …

The trustees could then nominate the new trust, the RFS Bushfire Relief Fund Trust to receive the funds.  The new trust could then use the funds in accordance with their new trust deed. At the same time, or alternatively, on winding up the Trustees could nominate other, existing, charities to receive the money.

Whether that is part of the ongoing discussion between PayPal and the RFS I don’t know.  The lawyers working on these problems will know much more about trust law than I do and have, based on instructions, their own view of what a reasonable response looks like and how it might be achieved. They are, no doubt, doing what they can to ensure that the RFS trust can receive the money and try to meet peoples’ expectations even though those expectations were not created by either PayPal, the RFS or the trustees of the Brigades Donations fund.  For those complaining about the involvement of lawyers remembers that the lawyers are trying to deal with a complex situation that their clients – PayPal, the RFS and the trustees – did not create.

Finally, I have seen it reported on that great source of knowledge, social media, that Facebook and PayPal are allowing people who have donated, but did not realise the limited nature of the beneficiary, to obtain a refund of their donation so they can re-allocate their money should they wish to do so.

On 29 December 2019 the Prime Minister announced ‘New Payments to Support NSW Volunteer Firefighters’.  At the time I wrote ‘The details, not surprisingly, are not fleshed out in a news report …’ (Commonwealth to pay NSW to reimburse firefighters (December 29, 2019)) nor were they set out in the Prime Minister’s media release.

The NSW call for volunteers to Register interest in the Volunteer Firefighters’ Financial Support Program also provides little detail.  It says:

Eligibility

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 (a business with less than $50 million turnover in the 2018-2019 financial year and/or less than 250 employees).

That gives little detail of what will be paid to whom.  South Australia has also joined the scheme and it has been announced, today, that the ACT will also take part but I cannot find details of eligibility or how the payments will be managed in either of those jurisdictions.

Queensland Fire and Emergency Services (QFES) have provided explanations in a set of detailed Frequently Asked Questions, and answers.  The Fassifern Guardian claims that the ‘Firefighter compensation [is a] government sham’ (Wendy Creighton 8 January 2020).  The argument is, I infer, based on a claim that the details set out by QFES are inconsistent with the Prime Minister’s statement. The Prime Minister’s announcement says:

Rural Fire Service Volunteers in NSW who are self-employed or work for small and medium businesses, and who have been called out for more than 10 days this fire season, will be able to apply for the payments.

The payments will provide for lost income of up to $300 per day up to a total of up to $6,000 per person.

These payments are tax free and will not be means-tested, but are targeted to those most likely to suffer lost income by volunteering for extended periods of time.

For most, this will represent the equivalent of at least 20 days’ emergency leave for employees of small and medium sized businesses and volunteers who are self employed.

The Prime Minister says this will include farmers, small business owners, tradies and contract workers in rural and regional areas who have been hit especially hard by this fire season…

“This is not about paying volunteers. It is about sustaining our volunteer efforts by protecting them from financial loss…”

The Fassifern Guardian says this is a sham because it does not meet expectations.  It lists the apparent contradictions as:

The promise

Eligibility criteria: 10 days or more volunteering as a Rural Fire Brigade member fighting fire

Compensation: $300 per day up to a maximum of $6,000

The reality in Queensland

Eligibility criteria:

• Volunteer becomes eligible to claim for days on the fire line after fighting fires for 10 days – cannot claim for first 10 days, can only claim for days after the first 10
• Can only claim for those hours fighting the fires within normal working hours e.g. if a firefighter fought fire for 18 hours on one day and only 4 of the 18 hours were within the volunteer’s normal working day, then can only claim for those 4 hours
• If a firefighter made up the hours away from work by working at night or on the weekend, or received payment from their employer, then cannot claim those hours
• Must prove loss of income

Compensation:

• Volunteer can only claim a daily rate commensurate with their normal daily wage, after tax, up to a maximum of $300
• If a volunteer works part time and they fought a fire on days that they do not normally work, then they cannot claim for those days
• If a volunteer is retired, then they cannot claim any days
• If a volunteer is a primary producer then they must be able to prove that if they had stayed home on the days they fought the fire, they would have made money.

I agree (for what it’s worth) with one of their claims.  As I read the initial announcement, I too understood that a firefighter who served 11 days could claim the $300/day for the full 11 days.  That would, however, raise an inequity in that a fire fighter who lost income over 10 days got nothing, where one who served 11 days got paid for 11 days.  The QFES however gives this example of eligibility:

For example, Mark has volunteered for 15 days, in an eligible role, so can claim lost income for the 5 additional days he volunteered, over the 10 days minimum.

That reduces the inequity.  It means those volunteers that are losing their income are asked to give 10 days on their own ‘coin’.  It means a person who volunteers for 10 days gets nothing and a volunteer who serves for 20 days gets paid for 10, but both have lost 10 days income. It does equate to 20 days paid emergency services leave, but only after 10 days initial service. I’ll leave it to others to decide whether that is actually inconsistent with the Prime Minister’s announcement.

As for the need to prove loss of income, that is inherent in the initial announcement. The announcement said ‘The payments will provide for lost income of up to $300…’ it did not say it was a per day payment of $300.  It is to cover lost income up to but not necessarily $300.  Their claim that the promise was ‘$300 per day up to a maximum of $6,000’ is clearly not what was in the PM’s announcement.

Because it is about loss of income it stands to reason that a person has to demonstrate that they did lose income. Equally it stands to reason that a person who was volunteering when they would not otherwise be working or has been paid by their employer is not eligible for the payment as they have not lost income.  It also stands to reason that volunteer who ‘works part time and they fought a fire on days that they do not normally work, then they cannot claim for those days’ and ‘a volunteer [who] is retired …cannot claim any days’.  If the Fassifern Guardian thinks that is inconsistent with the Prime Minister’s promise then they did not read the media release.

One controversial claim is the claim that a firefighter:

Can only claim for those hours fighting the fires within normal working hours e.g. if a firefighter fought fire for 18 hours on one day and only 4 of the 18 hours were within the volunteer’s normal working day, then can only claim for those 4 hours.

A firefighter who normally works 9am to 5pm but volunteers from 3pm to midnight, but then doesn’t go to work the next day in order to return to the fireground at 3pm has surely lost income as a result of volunteer.  I don’t however see that the QFES says that person is not eligible.  There is no statement that relates to ‘normal working hours.’  The phrase ‘normal working hours’ doesn’t appear in the FAQs at all.  The FAQ’s provide details of how to prove a loss of income including for those that that are casual or part-time workers or who work different hours across the financial year but the assertion that a firefighter ‘Can only claim for those hours fighting the fires within normal working hours’ is not expressly stated nor, from what I can read, is it implied.

Conclusion

Like the Fassifern Guardian I was surprised to see that eligibility did not go back to day one once a volunteer had been on duty for more than 10 days, but that seems fair and does not strike me as being actually inconsistent with what the Prime Minister said.

The claim that the promise was ‘$300 per day up to a maximum of $6,000’ is clearly wrong.  The announcement was always that compensation was for lost income up to a maximum of $300/day.  Because it was compensation for lost income the demand that claimants must prove their loss is to be expected as is the fact that people who have not lost income, either because they would not have earned income or because they were paid by their employer, are not eligible.  That was clear in the Prime Minister’s announcement.

It is not clear where the claim that a firefighter can ‘only claim for those hours fighting the fires within normal working hours’ comes from. It is neither expressly stated, nor implied, in the QFES details.