The comment below, was posted as a comment to my post, ‘NSW SES Emergency and Senior Emergency Officers, and the police’ (10 July 2014) but I thought it warranted a post in its own right. Further by putting it up as a post it is automatically sent out to subscribers who I thought would be interested in the further development of the ideas and who may not see it if it appears as a comment to the previous post. (And on that point, if you are interested in ‘Entering private land to extinguish a fire in Melbourne‘ but have missed the discussion that appears in the comments to that post, you should go back and have a look at how the discussion has refined the issues and clarified our thinking).

Now to the issue: my correspondent was referring to the State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’) when she said:

S50(3)(b) states “…which results from an emergency..”

If the SES is responding to a flood situation in which they have not engaged other agencies, ie managing within the capabilities of their own organisation locally, and hence not a “significant and coordinated” response….how does that section apply or not apply?

A scenario may include that a causeway is swollen with water caused by heavy rainfall. However the river has not breached its banks. The SES is responding within its capabilites to the rain event and not requiring the engagement of other agencies to assist them. A car becomes trapped on the causeway and the occupants require rescue.

It is accepted that rescue agencies will be responded and work together to achieve the best outcome as a matter of course, however….

Is this a situation where s50(3)(b) and other references apply with SES having responsibility to coordinate as the river is not in flood (under the definition of a flood)? Is SES still determined as the coordinating agency though it may not be an emergency in the context of definition under the SERM Act?

The SERM Act s 50 says “The NSW Police Force is responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations” but not if the rescue operation results “from an emergency and which is subject to the control of another agency” which, in the case of a flood or storm, is the SES (see ‘NSW SES Emergency and Senior Emergency Officers, and the police’, 10 July 2014).

Rescue “means the safe removal of persons or domestic animals from actual or threatened danger of physical harm” (SERM Act, s 3).  And “emergency”:

‘means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.’ (SERM Act, s 4).

Some interesting things about the definition of ‘emergency’; first it is circular, it starts by saying ‘“emergency” means an emergency …’and the most basic grammar tells you not to use the word you are defining in the definition.   Putting that aside it also means many things that the emergency services go to, a heart attack, a small fire etc are not an ‘emergency’ as they don’t require a ‘significant and coordinated response’.   The term can’t be universal (ie mean the same each time it is used) because it would have silly implications if it did.  For example to go back to a favourite topic, the Road Rules 2008 (NSW) where an emergency vehicle is a vehicle driven by an emergency worker and an emergency worker is amongst others, a member of the ambulance service, SES, Rural Fire Service or NSW Fire and Rescue ‘providing transport in the course of an emergency’ (Road Rules 2008 (NSW) rule 4 and Dictionary).  If ‘emergency’ meant the same as it does in the SERM Act, an ambulance officer could not claim any exemption from the road rules when proceeding to assist someone with a heart attack as that’s not an ‘emergency’ as defined here.  Clearly that’s a silly outcome and ‘emergency’ in the Road Rules must have a different meaning to the definition here.

Putting those issues aside, a flood is defined in the New South Wales State Flood Sub Plan (June 2008, x) as:

 Relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences.

That definition is adopted in the State Rescue Board Flood Rescue Policy (August 2009, [2]).  ‘Storm’ is not defined in the NSW Storm Emergency Sub-Plan (September 2013).

Taking these definitions into account, and the role of the SES as the lead agency for the response to floods, storms and tsunami, we can rewrite s 50 to read:

“The NSW Police Force is responsible for co-ordinating the safe removal of persons or domestic animals from actual or threatened danger of physical harm and for determining the priorities of action to be taken when organising the safe removal of persons or domestic animals from actual or threatened danger of physical harm but not if the safe removal of persons or domestic animals from actual or threatened danger of physical harm results from an actual or imminent occurrence (such as relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences, storm or tsunami) which: (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response’ and which is the subject to the control of the SES.

Let me now return to the comments, above.  If the SES is responding to a flood situation in which they have not engaged other agencies, ie managing within the capabilities of their own organisation locally, and hence not a “significant and coordinated” response’ then it’s not an emergency (as defined in the SERM Act s 4) so arguably s 50, and in particular s 50(3) does not apply and the rescue is the responsibility of the police; but I don’t think that’s correct.  If the SES turn out and do the rescue entirely on their own then the whole issue does not arise.  If however, the police decide to coordinate the safe removal etc then by definition it is requiring a coordinated response as at least the SES and police are involved and also, presumably, ambulance.  I think it would be splitting hairs to says it’s not a ‘significant’ response.  If there is a flood then it’s a flood rescue and the SES are in charge and having that clearly set out is the very point; so that everyone knows, or should know, who is in charge and avoid turf wars.

But what if it’s not a flood – my correspondent suggests a ‘causeway swollen with water’ which could be a flood if it is ‘local overland flooding associated with drainage before entering a watercourse’.  Alternatively if the causeway is swollen due to ‘heavy rainfall’ that may be a rescue caused by a storm; in either case the SES are in charge.

Let us consider another scenario: a car that’s run off the road into a creek where the rescue requires the sort of capability that the SES have developed to respond to floods but there is no actual flood or storm.  In that case you would have to say s 50(3) does not apply.  That’s a motor vehicle accident.  The police are in charge of the coordination and would normally call the primary accredited rescue unit but given the fact that the people are trapped in water, they may decide the specialist flood rescue skills are required even though there is no flood.  It would then be up to them to call the SES even if NSW Fire and Rescue or the Volunteer Rescue Association provide the primary rescue service.  I think again that is the whole point of s 50 to put someone in charge of making the decision of who should do what. (For a related discussion, see ‘Meaning of ‘marine’ and ‘land’ rescue in NSW’, 18 June 2012).

If there’s a dispute about whether the car is trapped in a swollen river and is it a flood, or a storm or just a motor vehicle accident hopefully wise heads will prevail to ensure that the person is rescued and the police and SES are not standing about arguing over jurisdiction.   Nice debate of law may resolve that issue later – but not at the time that rescue is required.

“Black Saturday bushfire survivors secure $500 million in Australia’s largest class action payout” is  the heading of a story appearing today on ABC Online.  The story says “Survivors of Victoria’s devastating 2009 Black Saturday bushfires have secured a $500 million payout, in what lawyers have called the biggest class action settlement in Australian legal history.”

A settlement means the parties reached an agreement on the damages rather than having a judge determine the legal and factual issues.   This would appear to reflect past history, that actions against the electrical authorities settle because causing devastating bushfires is just part of the cost of running a profitable electricity business in Australia (see ‘Bushfires; the price we pay for electricity’, 20 May 2014; see also ‘First of the Black Saturday cases settled’ 23 November 2011; ‘Further settlement of Black Saturday claims’, 17 May 2012; ‘Canberra bushfire litigation settles against the ACT’, 20 September 2012; ‘More on the Canberra litigation’, 21 September 2012   ‘South Australian litigation ends’, 13 November 2013).

An interesting aspect of this case is that the defendant SP-Ausnet joined various state authorities including the CFA and Victoria Police (see ‘Kilmore East litigation Update’, Country Fire Authority, 9 November 2011; ‘Two important cases start in court this week’, 5 March 2013 and ‘‘Black Saturday’ litigation’, 11 May 2011).  The ABC is reporting that:

SP AusNet has agreed to pay $378.6 million, while Utility Services Corporation Ltd will pay $12.5 million.

State parties, which included Victoria Police, the CFA and the Department of Sustainability and Environment, have agreed to pay $103.6 million.

A settlement occurs without admission of liability so the payment by Victoria does not mean they believe that they were at fault (just as SP AusNet continues to deny negligence).  There are however lots of pressures on litigants to settle including ‘uncertainty, complexity and scale of the case’ and in the case of a government, political pressure and an obligation to act as a ‘model litigant’ (see Victorian Model Litigant Guidelines, 2012).

Other litigation arising from these fires will continue, but experience might suggest that they, too, are likely to settle.

This comes for a NSW SES Deputy Region Controller who asks:

1.         The SES act refers to the Emergency Officer and Senior Emergency Officer, for example in S22 there is reference to emergency officer, then in 22A it refers to Senior Emergency officer.  What is the difference?  I know in the SERM act they are called Emergency Officers but it the SES act there are both references.

2.         Under Section 22A it provides for a Senior Emergency Officer to direct the doing of various things.  I know the Commissioner appoints Emergency Officers (basically anyone at and or above Unit Controller rank, although it’s not really rank) is this the same as the Senior Emergency Officer?  Is the interpretation that the SEO would not need to be on scene to use their emergency powers?  In my interpretation however the exercise of this power only is conditional upon an area being declared an emergency area which we really don’t record anywhere internally that I’m aware of.

3.         Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?  I have been told that anyone working under the direction of an EO (appointed by Commissioner in writing) has the ability to exercise the EO powers but I’m not convinced.  What is your interpretation?

4.         Senior Emergency Officers under the SES act include other agency representative above a certain rank, do they each need to be appointed by the Commissioner to have the ability to exercise the powers during storms, floods and tsunamis?  Or is this covered in their respective acts already?  What powers does a fire fighter station officer from FRNSW have at a storm job where there is threat to life?

‘Emergency officers’ are appointed by the Commissioner of the SES. They may be appointed individually or as a class (eg all members who have completed a particular course or of a certain rank).  Emergency officers do not need to be members of the State Emergency Service (State Emergency Service Act 1989 (NSW) (‘the SES Act’) s 15).

Part 5 of the SES Act deals with ‘Emergencies and Emergency Powers’.  For the purpose of Part 5, a ‘Senior emergency officer’ is

(a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit controller,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer (SES Act s 18A).

These positions are defined by the Act, that is they do note need to be appointed by the Commissioner, they are senior emergency officers by virtue of their appointment to that office or rank.

The State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’) does not refer to ‘emergency officers’.    The Act used to refer to Local and Regional Emergency Management Officers (LEMO and REMO respectively) but those references were removed by the Emergency Legislation Amendment Act 2012 (NSW) (Schedule 3, page 11, paragraph [24] and Schedule 3, page 13, paragraph [31]).  The effective date of that change was 26 November 2012.

References to the REMO and LEMO are now contained in the State Emergency Management Plan (page 15, paragraph [412] (REMO); page 17, paragraph [422] (LEMO)).  The REMO/LEMO have no specific operational role, they are the officers providing executive support to the Regional and Local Emergency Management Committee and Regional and Local Emergency Operations Controller, respectively.  A Regional Emergency Management Officer is a Senior Emergency Officer but during the 2013 Blue Mountains Bushfires, when a State of Emergency was declared and specific authority to exercise emergency powers was granted, the REMO’s were specifically excluded from the grant of power to order an evacuation (see ‘Who is an authorised “emergency services officer” during the current NSW disaster?’ (3 November 2013).).

Part 5 of the SES Act provides for emergency powers when dealing with emergency caused by floods, storms, tsunami or any other emergency where the SES Commissioner has been directed by the State Operations Controller to take charge.  (The State Operations Controller is the Commissioner of Police or another person appointed to that officer under the SERM Act s 18).

During these emergencies the SES Commissioner is to ‘have overall control of operations’ (SES Act s 20) and:

(1) Every member of the NSW Police Force and all other members of emergency services organisations are to recognise, in connection with operations in response to an emergency to which this Part applies, the authority of the Commissioner and emergency officers acting under the Commissioner’s orders or the orders of the region controller or local controller.

(2) It is the duty of every such member to assist the Commissioner or other emergency officer in connection with those operations. (SES Act s 21).

The Commissioner can direct or authorise emergency officers to take various actions under s 22 (‘Power to evacuate or to take other steps concerning persons’) and may direct or authorise senior emergency officers to take various actions under s 22A (‘Power to take other safety measures’).   A senior emergency officer authorised to take action under s 22A can also authorise people to assist, so the senior emergency officer may authorise someone else to enter premises to give effect to his or her directions (see ss 22B-22F).

Let me return to the questions:

1.         The SES act refers to the Emergency Officer and Senior Emergency Officer, for example in S22 there is reference to emergency officer, then in 22A it refers to Senior Emergency officer.  What is the difference? 

Emergency officers are appointed by the Commissioner of the SES;

Senior emergency officers hold that office by virtue of their rank or appointment to a position listed in s 18A.

2.         Under Section 22A it provides for a Senior Emergency Officer to direct the doing of various things.  I know the Commissioner appoints Emergency Officers (basically anyone at and or above Unit Controller rank, although it’s not really rank) is this the same as the Senior Emergency Officer? 

No, senior emergency officers hold that office by virtue of their appointment BUT they are not allowed to exercise their authority under s 22A or ss 22B-22F unless they have been authorised by the Commissioner of the SES to do so.    Sections 22 and 22A both refer to an ‘emergency area’ being ‘the area affected by an emergency to which this Part applies’ but there is no formal process of ‘declaration’.

Is the interpretation that the SEO would not need to be on scene to use their emergency powers?  In my interpretation however the exercise of this power only is conditional upon an area being declared an emergency area which we really don’t record anywhere internally that I’m aware of.

The Senior Emergency Officer (SEO) doesn’t need to be on scene any more than the Commissioner does.  If we assume that the SEO has been authorised to take action under s 22A and the SEO decides to order that the electricity supply in the emergency area is to be cut off (s 22A(b)) then he or she can direct that to be taken.  The electricity supply authority must send someone to disconnect the power (s 22A(2)) but it would seem silly to expect the SEO also has to go to the sub-station or other area where the electrician is to do his or her work.

3.         Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?  I have been told that anyone working under the direction of an EO (appointed by Commissioner in writing) has the ability to exercise the EO powers but I’m not convinced.  What is your interpretation?

An emergency officer, appointed by the Commissioner and authorised to exercise powers under s 22 may order that people leave premises or an emergency area. Presumably the emergency officer could ask someone else, eg a member of the SES to communicate that message so for example the EO could arrange for SES members to door knock within the emergency area and tell people that they are required to evacuate.

A senior emergency officer, authorised by the Commissioner, may ‘direct’ other people to shut off utilities, disconnect gas and electricity and take possession of dangerous material (s 22A).  The section specifically says that the SEO may ‘direct’ others to do that for the obvious reason that the SEO cannot personally disconnect the gas or electricity or take possession of hazardous material.  Sections 22D-22F then give powers to various people directed by the SEO to do things.

So do “Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?”  The answer has to be ‘no’; the EO or the SEO has the power to make decisions on certain actions.  They can then use others, so if the EO decides to order an evacuation he or she can get SES volunteers to communicate that message, but that is not the same as saying those volunteers can make the decision whether evacuation is or is not required.  Equally a SEO may order that electricity is disconnected but that does not allow an SES volunteer who is not an SEO to make that decision.  If that decision was required, presumably the SES volunteer would need to contact the operations centre to ask for them to arrange for the necessary services to come and the SEO could make the necessary decision so it’s hard to see that is a problem.

In any event there EO’s and SEO’s are not given a power to delegate their decision making and this makes sense as the Commissioner is the one who appoints EO’s and authorises action under ss 22 and 22A.  If EO’s and SEO’s could delegate then the Commissioner’s powers, and the quality control that they imply, would be irrelevant.

So it is my view that no, team leaders working under the remote direction of an Incident Controller (who is an appointed EO) do not have the ability to exercise the EO’s powers to make decisions about evacuations or the SEO’s powers with respect to utilities but they can be used to give effect to those decisions.

Finally question 4; Senior Emergency Officers under the SES act include other agency representative above a certain rank, do they each need to be appointed by the Commissioner to have the ability to exercise the powers during storms, floods and tsunamis?  Or is this covered in their respective acts already?  What powers does a fire fighter station officer from FRNSW have at a storm job where there is threat to life?

Yes, they do need to be authorized to exercise their powers under s 22A.  The Commissioner must be ‘satisfied that there are reasonable grounds for … the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency’ and he or she may then ‘direct, or authorise a senior emergency officer’ to exercise their powers.  Without that authorization, the SEO cannot exercise their powers under s 22A.

A fire brigade station officer has no specific authority at an emergency caused by a flood or storm, and in the absence of hazardous materials.

My correspondent also wrote, when setting out why he thought these questions are important:

Flood Rescue operations see many of our senior volunteers (Deputy Local Controller and above) wrestle with taking control from another agency, particularly the NSW Police especially when they don’t recognise their authority.

That raises further issues.  As noted, s 20 says every police officer is to recognize the authority of the SES. The SERM Act says, at s 50:

The NSW Police Force is responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations.

But the section goes on to say:

(3) This section does not apply to a rescue operation if the control of the rescue operation is vested by law in another agency, such as:

(a) a rescue operation in which the person or property is endangered by fire and at which a member of a Fire Brigade is in charge, or

(b) a rescue operation which results from an emergency and which is subject to the control of another agency in accordance with Part 2.

Part 2 deals with the State emergency management arrangements and the State Emergency management plan (s 13).   The SES is to

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities (SES Act s 8; see also Emergency Management Plan [202] and Annexure 3).

So is ‘flood rescue’ a ‘rescue’ or a response to an emergency from a flood?  The matter is not really open for debate in part because the State Rescue Board says, ‘The NSW State Emergency Service is the legislated combat agency for dealing with floods, which includes flood rescue’ (State Rescue Board, State Rescue Policy (3rd ed, 2013), [1.36]).   The Flood Rescue Policy also says.

The SES is responsible for Flood Rescue Operations as per Displan arrangements in NSW. SRB Policy at Section 1.34 affirms the SES as ‘the combat agency for floods, which includes flood rescue. (State Rescue Board, Flood Rescue Policy (2009), [4]).

The policy goes on to say:

The SES will utilise the RCO within NSW Police VKG Centres to provide an initial coordinated response to flood rescue operations in NSW. Such flood rescue operations are to be conducted in accordance with priorities established by the SES Operations Controller.

Flood rescue responses post the initial coordination provided by the RCO are to be managed in accordance with the SES Controller’s direction, which may include the establishment of a specific Flood Rescue coordination mechanism. The SES controller will control all assigned flood rescue assets from all Agencies.  (State Rescue Board, Flood Rescue Policy (2009), [9] and [10]).

There can’t really be any doubt that the appropriate SES member in charge is in charge of relevant flood rescue operations.  As my correspondent has noted however, convincing a career police officer that they are required to ‘recognise … the authority of [volunteer] … emergency officers … or local controller’ may not be easy.

Emergency Management Act 2013 (Vic)

In my post ‘Emergency Management Act 2013 (Vic)’ (24 January 2014) I discussed this Act that was passed by the Victorian Parliament on 3 December.  The Act says that the Act comes into force on a date to be proclaimed, but if no date is proclaimed it will commence on 1 September 2014.

The Government has commenced the Act with effect from 1 July 2014 (Special Gazette (No. 148) 13 May 2014 page 1).  With that proclamation, Emergency Management Victoria is now in place, the offices of Fire Services and Emergency Services Commissioner have been abolished and replaced by the Emergency Management Commissioner and the Inspector General for Emergency Management.

Public Safety Business Agency Bill 2014 (Qld)

In my post ‘Passage of the Public Safety Business Agency Bill 2014 (Qld)’ (8 May 2014) I said

When does the Bill take effect?
The answer to that is not obvious; there is no section that says ‘This Act commences on…’. Presumably therefore the Act will commence operation when it receives Royal Assent (that is when it is approved by the Governor).

Indeed that is correct, an Act without a prescribed commencement date commences on Royal Assent.  This Act received Royal Assent, and commenced operation on 21 May 2014.  With that commencement the administrative roles of Emergency Management Queensland are taken over by the Public Safety Business Agency and the operational responsibilities, in particular running the SES, are transferred to Queensland Fire and Emergency Service (formerly Queensland Fire and Rescue Service).

Ambulance Service Amendment Bill 2013 (Tas)

In my post ‘New law for ambulance services in Tasmania – Update’ (7 September 2013) I discussed the Ambulance Service Amendment Bill 2013 (Tas) that amongst other things would protect the title ‘paramedic’. That law came into effect on 1 July 2014.  Now, to call yourself a paramedic in Tasmania you need to an employee of Ambulance Tasmania who holds ‘a Bachelor of Paramedic Science’ (Ambulance Service (Paramedic) Regulations 2014 (Tas) reg 3) or who has ‘a qualification and experience that the Commissioner is satisfied demonstrates a satisfactory level of understanding and competence ‘ of equivalent standing.

Health Practitioner Regulation National Law (South Australia) (Protection of Title—Paramedics) Amendment Act 2013 (SA)

The ‘Health Practitioner Regulation National Law (South Australia) (Protection of Title—Paramedics) Amendment Bill 2013 (SA)’ (29 October 2013) has been passed, and received Royal Assent on 21 November 2013. The Act has not yet been commenced so it is not yet effective or current law.

A correspondent writes:

Watching an episode of ‘Bondi Rescue’ shot on Australia. In the episode a lifeguard confiscates the camera of someone that was found taking photos of women sunbathing topless.

The lifeguard:

a) Seizes the camera

b) Proceeds to look at the photos and after telling the person he is not allowed to take these photos, starts deleting them

c) Decides there are too many such photos and removes the memory card from the camera,

d) Uses sheers to destroy the memory card

My understanding is that the lifeguard had no authority to do any of the aforementioned and should have called the police.

It is my understanding that the lifeguard could expose him and Bondi SLS to criminal damage.

Absolutely, but first my understanding of ‘Bondi Rescue’ is that the lifeguards depicted there are employees of Waverley Council, not volunteers with Bondi Surf Lifesaving Club so it would be the council that would have some liability, not Bondi SLS.

There is no property in a spectacle (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479) that is you can photograph what you can see so anyone can go to Bondi Beach and take photos even if you are taking photos of women sunbathing topless; in fact it would be completely bizarre if people couldn’t take photos at Bondi! If there’s an objection to taking photos on Bondi, how could they film Bondi rescue?

There are offences relating to ‘child abuse material’ which includes ‘material that depicts …  the private parts of a person who is, appears to be or is implied to be, a child’ (Crimes Act 1900 (NSW) s 91FB).  ‘Private parts’ means a persons genital area or the breasts of a female person so that could be relevant if the person photographed was a child.  But it’s only an offence if the depiction is what ‘… reasonable persons would regard as being, in all the circumstances, offensive’ so that might be a photo where the child is the clear subject of the photo, but not a photo of the beach where the child is one of many persons on the beach.

There are also offences related to voyeurism but they won’t apply here as bathing topless on one of Australia’s most popular beaches is hardly being engaged ‘in a private act’ (as defined in the Act).  It is an offence to film a persons ‘private parts’ but in the context of that section, ‘private parts’ means “”means a person’s genital area or anal area, whether bare or covered by underwear”, not a woman’s breasts (Crimes Act 1900 (NSW) ss 91I and 91L).

So the assertion that  the person ‘is not allowed to take these photos’ is wrong; but let us assume that it’s right, eg that it constitutes ‘offensive conduct’ (Summary Offences Act 1988 (NSW) s 4) so what?

I assume that Bondi’s lifeguards are not ‘special constables’ (under the Police (Special Provisions) Act 1901 (NSW)) so they have no special law enforcement powers.  As citizens they could detain a person they thought had committed an offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100) but that requires the citizen to ‘take the person, and any property found on the person, before an authorised officer to be dealt with according to law’, not to destroy the property.

The lifesavers may be council rangers but that would give them power to enforce council by-laws and there are no relevant by laws on the council’s website.  There are provisions requiring a permit for commercial photography (see http://www.waverley.nsw.gov.au/business/regulations,_policies_and_permits/filming_and_photography) but I infer that the photography here was not ‘commercial’ and even if it was, it still wouldn’t authorise the lifeguard to seize and destroy the memory card.

Even a police officer would not have lawful authority to seize and destroy the card.  If the officer believes an offence has been committed then she or he could seize the card to use as evidence and present it before a court where the court could make orders as to what is to happen to the card.

So neither the life guard, nor a police officer, would have the authority to take the action described and yes, they would be exposing themselves to criminal and civil liability (if anyone could be bothered for the price of a memory card).

This question from a Victorian paramedic concerned about rising violence in that industry.  This question is about:

… the legal responsibility of an employer to provide personal protective equipment (PPE) to its employees.  Specifically, with the increase in assaults towards paramedics across all states and territories I am interested in the employers responsibility to issue protective vests to frontline staff.  I purposefully use the term protective vests as opposed to stab vests as the majority of assaults are of blunt force nature, although threats with weapons are also on the increase.

Who decides the level of perceived or actual threat/risk needed before PPE can be issued?

If an employee feels the need to use extra PPE (in this case a protective vest) is the employer under any obligation to provide this? or is it up to the employee to personally provide such an item for their own use?

If an employee does choose to wear such PPE can the employer order them to not use or wear said PPE even if it is not visible above their issued uniform?

… I have already made enquiries in the state of Victoria surrounding the legalities of purchasing and owning such equipment due to it being restricted and have written confirmation from the Department of Justice that I would be within the law to own and wear a vest for the purpose of carrying out my legal duties.

The starting point is the Occupational Health and Safety Act 2004 (Vic) (Victoria has not come on board with the adoption of the uniform Work Health and Safety laws that most of the other states have adopted). The Act says (at s 21):

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

That is not an obligation to guarantee safety, but to provide a safe work place ‘so far as is reasonably practicable’.  In deciding what is ‘reasonably practicable’ regard must be had to:

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk. (Occupational Health and Safety Act 2004 (Vic) s 20).

It is not obvious that the risk of violence to paramedics requires the provision of what I shall, for ease of reference, call a ‘stab vest’. To determine that would require an actual study of the risks – is violence actually increasing? If so is it the sort of violence that they would help protect the wearer? How much does it cost? What other solutions are there (in the hierarchy of OHS solutions PPE is the last solution (see NSW WorkCover ‘Hierarchy of Controls’ (http://www.workcover.nsw.gov.au/formspublications/publications/Documents/yw_heirarchy_controls_2089.pdf).

So who’s to decide? At first instance it has to be the employer as they have the duty under s 21 but to fulfill their duty they have to consider the matters listed in s 20 and they need to consult with their employees (s 35).   If employees feel that a ‘stab vest’ is warranted then they should look to use the consultation processes (s 36) to bring the matter to the attention of ambulance management.  The matter could be raised with an occupational health and safety representative or via the OHS Committee. (Naturally it would help if the staff could point to the issues in s 20 to show that the issue of PPE is a reasonably response to a real risk.)

If the parties cannot reach an agreement (eg if the staff want stab vests and management refuse to countenance them) then an inspector may be required to attend the workplace (ss 73 and 75).  The WorkCover Authority ‘may give advice to a person who has a duty or obligation under this Act or the regulations about complying with that duty or obligation’ so the Authority could give advice to the Ambulance Service about whether it should provide stab vests or at least the process it should go through to consider the issue.

An inspector who believes that there is a contravention of the Act may issue an improvement notice requiring that the contravention is remedied, so the inspector who attends could, if satisfied that the issue of stab vests, all things considered, was required to comply with the duty under s 21 could issue a notice requiring that the vests be issued.

Finally it is an offence to fail to provide a safe workplace so if the employees felt that it was the only reasonable response to the risk and the ambulance service refused to provide the vests, the staff through their union, or WorkCover could prosecute the ambulance service. Tragically that course of action would probably require someone to be stabbed first.

In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) [2001] NSWIRComm 90, NSW Police was prosecuted following the shooting deaths of two officers in an incident at Crescent Head.  One of the allegations was that the police failed to provide a safe workplace as it failed ‘to provide a speed loader that contained six rounds of ammunition which allowed for the ammunition to be loaded directly into the service revolver’ and/or failed to provide police with  ‘a self loading firearm handgun with magazine’ [3].  The gist of the argument was that the then standard issue police revolver was not adequate when faced with a heavily armed offender so that if the officers had this equipment they would have been better able to defend themselves.   Both the charges were dismissed as there was no evidence that in the circumstances the speed loader or ‘glock’ automatic weapon would have made a difference to the outcome or the risks that the officers faced when confronted by a heavily armed offender who was willing to use those firearms with fatal effect.

The point of that story is that here is (or was) a safety issue that had been the subject of negotiation.  The police did not provide that equipment (though I think most police services now issue operational police with automatic pistols rather than revolvers) and who ultimately decided the issue? The court, because the obligation to comply with the law must always, ultimately, be judged by a court.  A prosecution can be brought under OHS law without a death or injury but it is much easier to prove there was a risk that need to be dealt with when it has eventuated.

So let us return to our questions:  Who decides the level of perceived or actual threat/risk needed before PPE can be issued?

At the first instance it is the employer in consultation with employees, but ultimately it is a relevant court.

If an employee feels the need to use extra PPE (in this case a protective vest) is the employer under any obligation to provide this? Or is it up to the employee to personally provide such an item for their own use?

An employer is not obligated to provide whatever PPE an employee wants.  That may be quite unreasonable – a police officer may want a M16, a fire fighter a different model of fire appliance or BA etc.  As a university academic I may decide the students are getting too close so I want a gun.  The employer is required to provide that PPE that is reasonably required to ensure a safe workplace taking into account all the factors listed in s 20 and also taking into account that PPE is the safety control of last resort.

If an employee does choose to wear such PPE can the employer order them to not use or wear said PPE even if it is not visible above their issued uniform?   You do have to obey the reasonable instructions of your employer so the issue would be whether that was reasonable. The critical point though from the preceding discussion is that there are OHS consultation procedures and like all consultations they may lead to compromise, so if the discussion starts in the OHS committee it may come down to the service saying they will not provide a stab vest but won’t stop staff wearing one if they want to buy one.

This question from a firefighter with the Metropolitan Fire Brigade in Melbourne and it raises an interesting issue that I hadn’t thought of before.  Assume you are at home, having a bon fire.  It’s all controlled and safe – can the MFB enter and put the fire out?  This is how my correspondent put the question:

I am a professional firefighter in the MFB, Victoria. We regularly get called out to extinguish rubbish and other bonfires in people’s backyards. My questions is, what (if any) legal authority does a firefighter have to enter a private residence and extinguish such a fire, assuming the fire is safe and not causing harm to persons or property. This is obviously during a non fire ban period – as we can extinguish all fires during that period.

We understand that we have delegated powers of the Chief Fire Officer, which allow us to enter properties for various purposes – such as to check for fire hazards, use resources to extinguish a fire nearby and the like, but we are unsure of our actual legal footing if someone were to refuse entry, or not allow us to extinguish the fire if it is safe. Is it covered under environmental legislation, due to smoke, or does it come under the local council’s bylaws? If it is one of the latter, how are these powers transferred to the fire officer on the ground? Does it come down to the fire officer’s definition of what a safe fire is?

At present, we generally get by with the assumed authority that the organisation receives from the public – but we are keen to know what legal basis we have to extinguish otherwise safe fires/rubbish burn offs on private land.

The answer will lie in the Metropolitan Fire Brigades Act 1958 (Vic).  That Act says in s 32B:

(2) On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.

(3) At the scene of an alarm of fire the senior member of the operational staff—

(a)     shall endeavour by all practical means to have any fire suppressed and any person or property in jeopardy saved…

and:

(c)     may, for the purposes of dealing with any alarm of fire, cause—

(i)     any land building structure vessel or vehicle to be entered upon or into (if necessary by force), taken possession of, shored up, pulled down, otherwise destroyed or removed;

There are things to be observed here.  First s 32B(3)(c) give the power to enter to deal with ‘any alarm of fire’ not just ‘any fire’.  This makes sense as the brigades have to have the power, having received an alarm of fire, to enter land etc to see if there is actually a fire. Imagine an automatic fire alarm has gone off, if they only had the power to enter to deal with a fire there would be a question of whether there is, or is not, a fire.  Section 32B(3)(c) resolves that issue.

Section 32B(3)(a) says that the brigade shall ‘have any fire suppressed and any person or property in jeopardy saved …’ The phrase uses an ‘and’ that is they have to suppress the fire AND save persons and property.  On one view that could suggest there is no power to deal with the fire unless persons or property are in jeopardy as they have to do both (hence the ‘and’) but I don’t think that’s a reasonable reading of the section.  The section is listing things they can do and it would make no sense to use ‘or’ (that is they can deal with the fire or save the people).  Rather the brigade is there to suppress the fire and save people and property that are in danger (if any) but I don’t think there is any reasonable way to read that as they may only to take steps to suppress the fire if there are also people and property in danger.  In any event the fire must be burning fuel and the fuel will usually be the property of someone, so it’s almost axiomatic that any fire is posing a danger to property.

That reading would also make sense in that the fire brigades are established for the common, not private, good (Capital and Counties v Hampshire Council [1997] QB 2004).  They need to be able to enter property to deal with fire in order to protect neighbouring properties and they need the power to suppress a fire before it becomes a danger.  They also need to be able to suppress a fire regardless of the wishes of the person who lit it.

So having been alerted to the fire the MFB must (and do) have the power to force their way onto the property to investigate if there is a fire and what if anything needs to be done to suppress it.  They may (not must) take action to suppress the fire.   One would hope that the fire they suppress is indeed a fire posing a threat (and not say, the fire burning safely in the fire place) but the Act doesn’t say that.  There may be some reason why assistance is needed to extinguish a ‘safe’ fire and the fire brigades, being equipped with the equipment, have the authority to deal with it.

This raises the question why are they ‘regularly … called out to extinguish rubbish and other bonfires in people’s backyards … [even where the] fire is safe and not causing harm to persons or property’?  Who calls them?  If it’s the neighbours because they don’t like the smoke then the MFB presumably don’t want to get involved in sort of dispute but, to return to an earlier point, the MFB isn’t there for the individual but the common good.  If the fire is posing a threat to people or property they can take steps to extinguish it.  It may be a threat to people or property if it is being smoky or there are inadequate provisions to contain it.

If fire fighters do use force to enter the property, damage the property and extinguish a camp fire or bar b q fire that’s burning in a proper fireplace because of a complaint by a neighbour, there could not doubt be arguments that they are not acting in good faith to exercise their powers (as required to obtain legal protection under s 54A).  Where however the fire officer thinks the fire should be extinguished because it is, or may, pose a danger to life or property, then she or he can take that action regardless of the property owner’s wishes.

In short, yes I do think it comes down to ‘the fire officer’s definition of what a safe fire is.’

For a similar discussion on issues raised in the context of rural fires in NSW see ‘Entering private land to fight a bushfire in NSW‘ (June 16, 2013).

This query came via Twitter (which I confess I don’t really understand or follow, so it’s not a good way to try to contact me but it worked this time).  The question is:

Do HCP’s have a duty of care or obligation to report drivers who may have caused an accident causing injury to roads & traffic authority?

I asked for clarification as to what they had in mind.  My correspondent gave this example (edited from twitter speak into English):

An elderly person with eye problems hits the patient that you are attending and causes him to be hospitalised. I’m curious about Doctors, paramedics and nurses.

There can’t be any obligation to ‘report’ the driver to the licensing authority.  First, the appropriate body to report the matter to would be the police as they would be investigating the accident to determine what happened and if any criminal offences had been committed.

Putting that aside, what could the doctor or nurse or paramedic report?  In this context it doesn’t actually matter whether the patient had eye problems or just can’t drive.  If your treating the person that was hit, rather than the driver, you’re not in a position to assess the driver’s situation or what actually happened.  You may have one side of the story but that is all.  The HCP certainly can’t, without examining and entering into a therapeutic relationship, make a determination as to whether the other driver is medically fit to drive, or not.

If you have relevant evidence as to what happened (and see here Lithgow Council v Jackson [2011] HCA 36) then you could give a statement to the police but no-one is under any obligation to assist police with their inquiries so you are under a duty to report what you know, but you may chose to.  (There are offences such as ‘Concealing serious indictable offence’ (Crimes Act 1900 (NSW) s 316) but, without going through it in detail, that’s not going to apply here.  Here the suggestion is reporting a person for being unfit to drive not that they committed a serious indictable offence.  Further if they have committed an offence it’s hardly concealed if it’s a road traffic accident with ambulance in attendance, the police know about it, so the sections not relevant).

One would have to be careful though to ensure that one didn’t breach any confidence.  If, for example, a paramedic asks the driver if they had been taking any drugs and that question was asked for therapeutic reasons (ie to facilitate treatment) and the driver gives an honest answer, there is no obligation to tell that to police. There may even be an obligation not to answer a police officer’s question if the officer asks ‘what did the driver say?’ as there is the need to protect patient confidence.  That would be even stronger in the case of a registered health professional where the ethical duty to keep information confidential is supported by standards of professional practice and established legal privileges.  The answer should however be recorded on the case notes as it forms part of the relevant history and those records must be produced in response to a search warrant or subpoena.

In terms of ‘duty of care’ that refers to the common law of negligence but to whom would the duty be owed? Not the patient you are treating as they’re already injured, reporting that the other driver appears to be unfit to drive will do nothing to protect injuries to your patient.  There is no duty of care to the world at large, that is the unidentified class of people who could possibly be exposed to danger if the other driver is allowed to continue.

So in the context of the question asked, where a health professional is treating someone who was injured in a motor vehicle accident and believes that the accident was caused by another driver (for whatever reason) there is no obligation or power to report to the RTA – who wouldn’t know what to do with the report anyway.  They couldn’t act on it as the report isn’t coming from the person’s treating doctor, it would be just unsubstantiated gossip.   I’m sure anyone would, rightly, object if they got asked to ‘show cause’ why they should keep their licence just because someone reported that, in their view, they were not fit to drive. Nor is there any obligation to report one’s suspicions to police.   You could and perhaps should give a statement to police that sets out what one saw and observed but one should be careful to ensure that professional standards, in particular with regard to protecting patient confidentiality, are maintained.

‘AFP may be forced to ignore crime on work breaks due to a compensation law loophole’ is the headline of an article appearing in the Melbourne Herald Sun (12 June 2014, ) and which has been sent to me for comment.  The correspondent who sent it me asks ‘Are things getting out of control and out of touch with reality?’

I think they are, but it’s not the law, it’s the Australian Federal Police Association that’s ‘getting out of control and out of touch with reality?’  We are told that the Association has:

… sounded the alarm over the federal government’s Safety, Rehabilitation and Compensation Amendment Bill, which would alter the current Commonwealth compensation arrangements for injuries sustained by employees while they are on a designated “recess” break.

The proposed amendments would also wind back compensation arrangements for AFP employees who “voluntarily and unreasonably submitted to an abnormal risk of injury” — which police claim, could include most of their day-to-day work.

The article goes onto say “it is understood the government will argue it is highly unlikely that police officers discharging their duties would be seen as ‘voluntarily and unreasonably submitting to an abnormal risk of injury’”, and that has got to be correct.

The Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for workers compensation for Commonwealth employees including members of the Australian Federal Police (AFP).   Workers compensation is ‘no fault’ that is you don’t have to prove anyone was negligent, only that the injury arose out of or in the course of employment.   Section 6(1) of the 1988 Actcurrently says:

… an injury shall, for the purposes of this Act, be treated as having … [arisen out of, or in the course of, his or her employment] if it was sustained:

(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

Section 6(3) says:

Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

As the Act currently reads, if you are at your place of work, or temporarily absent during an approved recess, perhaps you’re walking across the road to get a coffee, and you get injured then that injury arose out of your employment and you’ll be entitled to workers compensation (provided of course you meet all the other requirements set out in the Act).  That rule will not apply however if, whilst at the place of work or during the approved recess, the employee ‘sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury’.

The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) will amend these sections.  If and when the Bill is passed into law the sections will say:

… an injury shall, for the purposes of this Act, be treated as having … [arisen out of, or in the course of, his or her employment] if it was sustained:

(b) while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment;

And

Subsection (1) does not apply if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

In his second reading speech, Mr Pyne (Leader of the House and Minister for Education) (Hansard, 19 March 2014, p 2380) said:

Currently workers’ compensation is payable for injuries that occur during recess breaks, even if the employee is not at the place of work when the injury occurs, contrary to the position in South Australia and Tasmania.

… workers’ compensation could be payable, for example, where an employee sustains an injury while shopping, at a restaurant or playing sport away from the employee’s place of employment during a lunch break. This is despite the employer having no control over the activities of the employee or the environment in which the employee engages in such activities. The proper avenue for people to seek recompense for injuries under such circumstances is through the owner of the premises where an injury occurred, not through their employer who has no control over the matter.

This bill addresses this unfair arrangement. Workers who are injured at work, even while having a recess or lunch break, will remain fully covered. Injuries that occur while the worker is away from the workplace undertaking activities associated with the employee’s employment or at the request or direction of the employer will also still be covered.

That’s true.   The amended s 6(1) says an injury arises out of one’s employment if it occurs at the place of work even during a recess break. The place of work ‘includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment’ (Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4).  Some people work all over the place, in other people’s homes and business and on the street, others have very defined ‘places of work’.

The amendment to s 6(3) reflects that change.  It used to disqualify an employee who ‘voluntarily and unreasonably submitted to an abnormal risk of injury’ at their place of work or whilst on a break even if not at their place of work.  That second condition will no longer be required so has been removed.   If, at your place of work where ever that is, you ‘voluntarily and unreasonably submitted to an abnormal risk of injury’ you don’t get compensation.

The police association, we are told, say this is problematic because ‘most of their day-to-day work’ involves both voluntary and unreasonable submission to abnormal risk of injury but that is, to put it bluntly, rubbish or it should be.

First note that this is not a new clause or test.  It’s simply being limited so that Commonwealth employees don’t get compensation when away from work on a rest break.  The test about ‘voluntary and unreasonable submission to abnormal risk of injury’ is already in the Act.  If it was a problem because police activities are dangerous then it would have caused a problem before now.  This is nothing new.

Second police may be exposed to a high risk of danger but not an unreasonable submission to an abnormal risk when what is normal and abnormal and what is reasonable and unreasonable has to be judged in the circumstances.  Police are trained and equipped to face dangerous situations.   That is not ‘abnormal’ but hopefully they are trained not to make ‘unreasonable’ submissions to that risk.

There is plenty of case law too that police who put themselves in harms way when executing their duty are not acting ‘voluntarily’ and are therefore not defeated by the common law defence of voluntary assumption of risk.  From Haynes v Harwood [1935] 1 KB 146 where a police officer stepped in front of an escaping  horse to Hirst v The Nominal Defendant [2005] 2 Qd R 133 where a police officer was injured in a high speed pursuit, the courts have refused to find such actions were ‘voluntary’,  In Hirst, Keane JA said (at [24])

In my view, the position of a policeman responding to the call of a legal duty to prevent unlawful conduct on the highway and to protect the safety of those making lawful use of it, must afford a stronger illustration of this point than the rescue cases. In such a case, the “free choice” of the police officer as to his conduct is constrained by the twin circumstances of his legal duties as a police officer, and the occurrence of the unlawful conduct which it is his or her duty to prevent.

In those circumstances the officer was not voluntarily accepting the risk of injury any more than a police officer who faces danger in the course of his or her duties is voluntarily submitting to an abnormal risk of injury.

As for having to respond whilst on a recess, the obvious implication is that the recess stops.  If a police officer is having a coffee across the road from work and sees a crime and intervenes, at that point they are no longer on their break but at work.  The place of work is anywhere where an employee is ‘carrying out the duties of his or her employment’ and if the duty is to act   ‘while off-duty, on a recess break or during travel to or form the workplace’ then that becomes their place of work.

Even if you define the place of work as the police station, as the Minister noted ‘Injuries that occur while the worker is away from the workplace undertaking activities associated with the employee’s employment or at the request or direction of the employer will also still be covered’ and they are – see s 6(1)(c).

In conclusion, a police officer who gets injured, whilst on a break, away from the police station and who is not performing his or her duties as a police officer, is excluded from Commonwealth Workers Compensation.  A police officer who voluntarily and unreasonably submits to an abnormal risk of injury is also excluded but a police officer who faces a risk of injury in the performance of his or her duties is not voluntarily submitting to that risk; facing a risk in the course of policing is not ‘unreasonable’ taking into account all the circumstances of their duties.  Further this section is not new and if it has not caused problems in the past, there’s no reason to think it will in the future.

I’m afraid I just can’t see the issue.

This is the first post after my break – and thank you for the well-wishes.  Today I’m asked a question from a volunteer fire fighter with the ACT RFS who:

…  had a bit of a thought about something I did while on deployment to the Blue Mountains fires in October last year and thought it might be interesting to get your opinion …

We had been burning off a trail when a wind change caused the fire to jump the trail and head back towards town, we were quickly redeployed to protect property. This coincided with an emergency alert being issued and a text message going out to the affected area recommending evacuation, the police were door knocking as we arrived to recommend evacuation.

I briefly spoke with one of the property owners and he left the house open for us as he left, so that we would be able to better defend the area.

In the end the fire did not arrive before we were relieved from the fire ground and so I wondered, do I leave the door open for the next crew? (There was no hand over so I was unable to tell the next crew about the situation) or do I lock up? (What I did in the end).

Essentially the question boils down to, did I have an obligation to secure the property? The options I saw facing me being 1 – lock up and if there was a need to get into the property later the next crew would be able to use force to access, though this could potentially increase the damage. 2 – Don’t lock up and potentially leave the house exposed to burglary etc.

This could apply in other settings such as – if I cut a fence to access a paddock do I have some obligation in relation to securing it to prevent possible stock loss? Or does my legal permission to use force (Emergencies Act 2004 (ACT) s 34 (1)(a) – delegated to all RFS members) to enter onto property and/or general exemption from liability mean that I do not have an obligation in that regard?

In reality I believe I, and other fire fighters, would take a pragmatic approach, securing property where practical given other competing priorities but I would be interested in your thoughts.

Interestingly the answer here involves both the Emergencies Act 2004 (ACT) and the Rural Fires Act 1997 (NSW) as well as the common law.   Identifying how the two Acts work together is not easy (see my earlier post, ‘Interstate deployment’ (29 January 2014).

As noted the ‘chief officer of an [ACT] emergency service may, for the protection or preservation of life, property or the environment— (a) with any necessary assistance and force, enter land’ (s 34(1)(a)).  (‘Land’ includes ‘all things growing on or affixed to the soil, including buildings…’ (Encyclopaedic Australian Legal Dictionary, definition of ‘land’).  The power to enter land includes a power to enter a building that is permanently connected to the land, but not, say, a caravan.   The exercise of this power must be done in accordance with the Commissioner’s Guidelines, if any (s 34(2)).

The Chief Officer of the ACT Rural Fire Service, a member of the Rural Fire Service who has been delegated the Chief officers’ authority (s 39) or a member of the RFS who is acting to protect life or property or to control or extinguish the fire, and who acts in accordance with the commissioner’s guidelines or where it is not practicable to obtain a direction or authority from the Chief Officer (s 68(7)) may pull down a fence but if they do so they must, ‘as soon as practicable— (a) temporarily repair the fence; and (b) tell the owner of the land about the temporary repair’ (s 68(6)).

When operating in NSW, the ACT Rural Fire Service remains governed by the ACT Act, but its operations will also be governed by the NSW Act. The Rural Fires Act 1997 (NSW) says that a member of an interstate fire brigade is to obey the orders of the ‘officer in charge at the fire’ and to place their equipment at that officer’s disposal.  If there is no ‘officer in charge at the fire’ then the officer in charge of the interstate brigade is ‘the officer in charge’ and may exercise any of the powers given to a NSW officer (Rural Fires Act 1997 (NSW) s 43).

The NSW Act provides that ‘An officer of a rural fire brigade … may enter any premises for the purpose of exercising any function … under this Act’ (s 23) but only if they have given authority by the Commissioner either generally or in a particular case (s 32).  A member of an interstate brigade (ie the ACT RFS) can therefore enter premises in NSW if acting under the direction of an ‘officer in charge’ who has been authorised to exercise the power.  That officer in charge may be NSW officer or, by virtue of s 43, the officer in charge of the ACT brigade where there is no NSW officer in charge at the fire but the officer must be authorised to make that decision; hopefully that authority has been given as part of the agreement for the interstate deployment.  A ‘person authorised to enter premises must do as little damage as possible’ (s 30). Further an officer may ‘pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land’ (s 25(1)(a)).

You don’t need authority to enter land where you have the occupier’s permission to enter the land as must be the case here where, we are told, ‘the property owners … left the house open for us as he left, so that we would be able to better defend the area.

The question then is what is the obligation to secure the property?

I would suggest that the answer to this question requires consideration of the problematic common law issue of’ what is ‘reasonable’ in the circumstances?’  If you are leaving and going home and no-one is coming to relieve you as the fire has moved on how could it be reasonable not to make the effort to lock the doors and windows?  On the other hand if another crew is expected at any minute, and there is some clear operational benefit in leaving the premises open that may be reasonable.   If you are called away for an urgent response leaving the premises un-secured may also be reasonable.

As for the general protection from liability, the ACT Act says:

“An official is not personally liable for anything done or omitted to be done honestly and without recklessness — (a) in the exercise of a function under this Act; or (b) in the reasonable belief that the conduct was in the exercise of a function under this Act.”

Official includes a member of the emergency services. (Emergencies Act 2004 (ACT) s 198).

If one honestly and without recklessness believed it was necessary to leave the premises unsecured in order to facilitate ongoing fire fighting operations then that may apply.  If one just leaves and for no good reason fails to take any step to secure the property, I can’t see how that would be acting ‘honestly … in the exercise of a function under this Act…’.

The NSW Act says ‘A matter or thing done or omitted to be done … in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand’.   Again it would turn on the facts, but simply leaving the premises unsecured as it’s time to move on is hardly acting ‘in good faith for the purpose of executing any provision’ of the Rural Fires Act.

Exactly which Act applies is difficult to say and would depend on the facts and on the allegations raised but I don’t think the outcome would be different in either case.  (I would suggest however that the relevant Act is the Act for the state in which you are operating given the legislative limits of the Parliament. When on deployment interstate you are acting on behalf of the interstate agency and by virtue of the interstate Act (in this case the Rural Fires Act 1997 (NSW) s 43, so I think on balance the NSW Act is the relevant one.)

So was there an obligation to secure the premises?  Not under the Act but under common law there may be an argument that if it was not reasonable to secure the premises and as a result the premises were damaged, that should lead to the payment of compensation but that would depend on what damage there was.  If the premises burned down because embers entered the unsecured door that may be evidence of negligence by the firefighters.  If however, a thief entered the unsecured premises and stole items that may not. The thief is a criminal and there is generally speaking no duty to protect people from the criminal conduct of third parties (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).

All of that is very complex so let’s apply a common sense test; the occupier has left the premises unsecured to facilitate fire fighting operations.  The issue of statutory authority is not important, as there is the owner’s consent.  The owner is trusting the fire fighters to act appropriately, they are being left effectively ‘in charge’ of the property.  The fire ‘did not arrive before we were relieved from the fire ground’ and there is no handover.  The question of whether to secure the premises is just a question of what is ‘reasonable’.  As noted there were two options – “1 – lock up and if there was a need to get into the property later the next crew would be able to use force to access, though this could potentially increase the damage. 2 – Don’t lock up and potentially leave the house exposed to burglary etc.”  What was actually likely?  To answer that one would need to take into account where’s the fire? Is there going to be another crew? Will they actually need to access the house and why?  I can’t answer those questions in any definitive way but what I can say is if you don’t, or didn’t, think about them the decision to leave the premises, either secured or unsecured, would not be a good faith exercise of one’s functions.   If you did think about those things and decided, on balance the best option was either (1) or (2) then you could rely on the immunity provisions if, later, the property suffers damage either by fire, theft or wildlife seeking refuge.

As for cutting fences, certainly as an ACT firefighter and if working in the ACT there is a clear obligation to effect a temporary repair and notify the landowner of the repair.  There is no similar provision in NSW.

I’m going to be on holidays from now until 30 June so the Australian Emergency Law blog will remain silent in that time. You can still send me questions , but I won’t get around to answering them until then so it may be better to hold off until after 1 July.  Comments on posts may not be approved and any breaking news will not be the subject of comment.  The next relevant legal event that is ‘on the radar’ is the decision of the ACT Court of Appeal in the Canberra bushfires litigation but given that case was concluded, I think, yesterday the chances are that the decision won’t come down before 1 July.

I look forward to resuming the conversation in July.

Michael Eburn

6 June 2014.

A paramedic from WA asks:

As I understand it, Australian paramedics have no legal right to restrain a patient, however we do carry both chemical and physical restraints in the ambulance, and use them if we are asked to use them by police or authorized by our Medical director.

As I understand the meaning of restraint in relation to pre-hospital care, “it is the chemical or physical restraint of a patient without their consent.” Is that correct?

As I understand the meaning, this does not pertain to restraining a patient when you are strapping him/her onto a backboard, and temporary secure limbs (arms) for patient safety for transport into the ambulance or helicopter, especially when you have the consent of the patient for treatment, and have explained the operational reasons for what you are doing.

I have been criticized by the way that I have loaded and attached the patient to the backboard, and peers have said it is unlawful for me to strap and load patients in this matter. In other parts of the globe that I have worked it is a common operational procedure to secure the arms to prevent patients from grabbing out onto ambulance, helicopter, etc.etc. while they are being loaded. Once loaded in the mode of transportation, arms are unstrapped, and normal patient management is continued to hospital.

What are your thoughts??

This issue was covered, to a large extent, in an earlier post. ‘Physical restraint of patients by paramedics’ (February 14, 2014) but that related to Queensland.  The common law provisions, discussed in that earlier post, will apply in WA in fact they are more relevant as WA has no ambulance legislation, so WA paramedics have no statutory authority to restrain anyone.

As for the question

As I understand the meaning of restraint in relation to pre-hospital care, “it is the chemical or physical restraint of a patient without their consent.” Is that correct?’  chemical or physical restraint of a patient without their consent.” Is that correct?

That is not correct.  Restraint, in relation to pre-hospital care, has no particular legal meaning; it means what it means. According to the Oxford dictionary ‘restraint’ means ‘A measure or condition that keeps someone or something under control’; ‘The action of keeping someone or something under control’ or ‘Deprivation or restriction of personal liberty or freedom of movement’.   That last definition certainly implies a lack of consent as securing someone with their consent is not restricting their liberty.

Turning now to the specific laws.  The Mental Health Act 1996 (WA) provides that persons may be detained for involuntary treatment upon the order of a medical practitioner and that the police may assist in that process.   A medical practitioner who refers a person fro examination may make a written order authorizing police to apprehend the person and take them into custody (ss 34, 41 and 71) and may take a person who they have arrested to a facility for examination (ss 195 and196).  Police may enter premises to take a person into custody (s 197) and may use reasonable force to do so (s 200).

Whilst there is no express provision saying police can ask others to assist, such a conclusion is necessary for the Acts to operate.  So a police officer may form a view that a person they have arrested, or they may have detained a person under a transport order, and decide that they need ambulance assistance.  That doesn’t give the police the authority to tell the ambulance officers to use a chemical or other restraint.

If the police are going to use ‘reasonable force’ (s 200) then they have to believe upon reasonable grounds that the force is necessary (Zecevic v DPP (1987) 162 CLR 645) but that doesn’t meant that the ambulance officers have to also believe that force is necessary.  If paramedics are going to consider themselves professional they should not be using restraints when ‘asked’ by police because that is allowing police to make what should be a clinical judgment made in the best interests of the patient.  What can happen is if the ambulance officers fear for their safety, or the safety of their patient, they may discuss that with the police and the medical director who may endorse the conclusion that is give some satisfaction that the decision to use a restraint is in fact reasonable.

As for restraining a person on a backboard or otherwise restraining their limbs, that requires either consent, or the common law of necessity.  If they consent there is no issue.  If they are unable to consent and the restraint is necessary in their best interests and reasonable in the circumstances then it that action is justified by the common law of necessity.  Determining whether the procedure was ‘reasonable in the circumstances’ will depend on the sort of practice accepted by the service that is part of the services standard procedures and training.

In summary:

• It is not unlawful to ‘strap and load patients’ if that is accepted professional practice and the action is taken in the patient’s best interests (not the paramedic’s convenience) and the patient consents (either expressly or by implication eg by cooperating with the process) or,
• It is not unlawful to restrain a person if that is accepted professional practice and the action is taken in the patient’s best interests (not the paramedic’s convenience) and, if the patient is unable to consent, the decision is reasonable in the circumstances and in the patient’s best interests.
• It is not unlawful to restrain a person who is suffering a mental illness if that is accepted professional practice (which may include seeking some endorsement from the medical director if that is the procedure adopted in the particular ambulance service) and the paramedic believes, and there are reasonable grounds to believe, that such action is necessary to protect the patient or other people who may be at risk (such as the paramedics or police in the ambulance).  The mere request of police is not sufficient.  If paramedics are transporting the person it is their professional duty to act in their patient’s best interests and that may well mean resisting a police officer’s desire to unnecessarily restrain the patient.  The use of chemical restraints must be in accordance with training, and must use drugs that are authorized for that purpose.  Again it’s not for police to tell paramedics how to do that any more than police will direct a paramedic to treat a person with a traumatic injury even if the police have arrested them.

A correspondent writes:

I’m a volunteer [firefighter]…  and part the area we cover includes a Department of Defence establishment which obviously has special conditions around who can enter the grounds and areas under their control.  Our brigade has had numerous calls to this establishment … normally as part of as part of an automated building fire alarm activation.  While in a lot of specific cases common sense usually prevails, I’m wondering what rights do we have … [under our State fire brigades’ legislation] to enter these premises or grounds when these areas are controlled by Commonwealth legislation?

I’ve taken out the references from the question that would identify the jurisdiction from which this question comes from in order to make the question generic.  Given the national focus of this question, the answer will be the same in Queensland as it will be in New South Wales, Victoria, Tasmania and so on around the country.

The critical law here is the Australian Constitution and in particular, s 109 which says:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Or to put it in plain English, a state law is invalid if it is inconsistent with a valid Commonwealth law.   (Territory law must also be consistent with Federal Law – see Australian Capital Territory (Self Government) Act 1988 (Cth) s 28 and Northern Territory Self Government Act (Cth) s 51).

The State and territory fire brigades operate under state or territory legislation.  Those Acts give the fire services a great deal of authority and power including the power to enter upon private land in order to respond to a fire call, to force open buildings and other things and to take all sort of action to control the fire or other emergency.  But if there’s a valid Commonwealth law that is inconsistent with those provisions, the Commonwealth law will prevail.

A Commonwealth law is inconsistent with a State law if it is impossible to comply with both at the same time or if it is clear that the Commonwealth law is intended to ‘cover the field’ that is to be the entire law on a subject area. In that case any State law would be inconstant with that federal intention to ‘cover the field’ and therefore invalid (an issue being played out with the issue of ‘same sex’ marriage with the states and territories, unsuccessfully, looking for a gap in the ‘field’ that is covered by the Commonwealth law on marriage; see The Commonwealth v Australian Capital Territory [2013] HCA 55).

The Commonwealth cannot make a law on anything it wants.  The Commonwealth Parliament is a parliament of limited power; it can only make laws with respect to the subject matters listed in the Constitution, in particular in s 51.   One of the exclusive powers of the Commonwealth is the power to make laws with respect to defence (Australian Constitution s 51(vi); see also ss 69, 114 and 119).

So the local fire brigade can enter onto Commonwealth land and do all the things they are allowed to do under State law unless there is a valid Commonwealth law that says that they cannot do that; and, with respect to a defence establishments, there is such a law.

The Defence Act 1903 (Cth) Part VIA deals with ‘security of defence premises’. Defence security officials can ask a person seeking to enter defence premises to provide evidence of their name and address and undergo a limited search.  If the person refuses they may be denied access to the premises and may be detained.  A defence security official can ask the person in control of a vehicle if they consent to the vehicle being searched and if permission is refused the official may refuse to let the vehicle onto the defence premises.   A special defence security official can do all those things, demand identification and conduct searches of people seeking to pass a defence access control point or on defence premises, without the person’s consent.  There are a myriad of other provisions relating to secure the defence base that we need not consider in detail (For other provisions restricting access to defence areas, see the Defence Act 1903 (Cth) ss 71-72S; see also Defence (Prohibited Wharves And Buildings) Regulations 1950 (Cth) and Defence Force Regulations 1952 (Cth) rr 35 and 53)). For our discussion the really important provision is the Defence Act 1903 (Cth) s 72P, that says:

A person commits an offence if:

(a)  the person enters or is on:

(i)  defence premises; or

(ii)  defence accommodation; and

(b)  the person is not authorised to be on the premises or accommodation.

Given that s 72P is a valid law of the Commonwealth, any power in the state fire service to enter the premises and take action there to investigate if there is, or respond to, a fire would be inconsistent with that provision and therefore invalid.   The question becomes ‘what does it mean to be ‘authorised’?’  Any number of people could be authorised to be on defence premises for any number of reasons and they don’t all have to be members of the ADF.  So if the defence force allows the fire brigades to enter the land, either on a single occasion or, hopefully, because there is an actual understanding between the brigades and the ADF, then they are authorised to be there so no offence is committed.

In terms of all the regulatory rules of the brigades, the provisions that identify the chain of command, determine the functions of the brigades etc; all of that still applies as it’s not inconsistent with a Commonwealth law.   Provisions that allow the brigades or the incident controller to order a place to be evacuated or to compel people to leave the area would,  I suspect (and without going through the Acts chapter and verse) be inconsistent with the Defence Act where that allows other people to determine who is to be on defence premises; so you couldn’t require ADF personnel to evacuate the area.  Having said that I’m sure you could ask and I would expect that they would comply except where there are legitimate security reasons not to, but they would not commit an offence if they did not.

The answer to the question ‘what rights do we have … [under our State fire brigades’ legislation] to enter these premises?’ is you have no right at all, as a ‘right’ would be inconsistent with the Defence Act 1903 (Cth), but if you are authorised, that is allowed – even invited –  to come on to defence premises, then you can and you can do, cooperatively with the ADF, what you need to do to deal with the emergency.

A correspondent writes:

I have been doing some research on the 2003 Canberra Bushfires and was looking at where authority for certain plans with respect to managing the response came from. One little gem I uncovered in the Rural Fire Control Manual (legislative instrument required under ACT Bushfires Act 1936 (now repealed) was around ‘casual passers-by’ who assist with putting out a fire being entitled to compensation if injured. I don’t know if you knew of the existence of this or if there are any similar arrangements around the country to provide protections to people providing assistance in such situations. I have no specific question, just found it interesting and wanted to pass it on:

4.4 EMERGENCY VOLUNTEERS

The Bush Fire Council recognises that there are many people including casual passers-by who may lend assistance to bushfire suppression particularly in its early stages Where a casual passer-by sees a fire starring he or she should be encouraged to take whatever action within their capabilities to suppress that fire and they therefore should be covered for any injuries sustained by him/her including a loss of wages, unless it can be shown that they did not act in good faith. Council also recognises that there are many people in rural areas who will act in support of volunteer firefighters and while they may not be involved in direct firefighting at the flame front they may also sustain injuries through their role in supporting other firefighters. They too are entitled to compensation.

Today ‘casual passers-by’ would be called ‘spontaneous volunteers’.  Spontaneous volunteers can be grouped into (at least) two categories, those that step forward of their own initiative and do what they see needs to be done. They may act alone or they may form into quite well organised groups such as the original ‘Queensland mud army’ the Christchurch ‘Student Volunteer Army’ or the Tasmanian ‘We can help’ group.  Similar groups have arisen in international disaster response one well known group being ‘Surf Aid’ (which existed before the 2004 SE Asian Tsunami but started its emergency response work after that event.  It may surprise anyone who’s done AIIMS training that they are not in control of these groups.  The position of ‘incident controller’ is largely absent from legislation (but see, as an exception that proves the rule, Fire and Emergency Act (NT)).  The Incident Controller may exercise control over their own service by virtue of the chain of command and internal doctrine, and over other services by virtue also of doctrine and adherence to various emergency plans, but agencies and people outside the emergency services are free to do what they like absent specific laws to the contrary.  The IC may be able to order evacuations from certain areas and they like but they can’t stop, nor should they stop, spontaneous groups that spring up to meet a community need.  Such actions are ultimate examples of community resilience and self help.

Other spontaneous volunteers are more like those described in the Rural Fire Control Manual and who ‘spontaneously’ volunteer for, and place themselves under the direction and control, of the statutory emergency services.   All the states and territories recognise that these volunteers exist and provision is made to provide compensation should they be injured or suffer property loss in the course of their volunteering.   The compensation can extend to’ loss of wages’ but not in the sense of paying them for their time, but paying for lost wages if because of their injuries they are unable to work for some period of time.

In New South Wales the Workplace Injury Management and Workers Compensation Act 1998 (NSW) provides that volunteers who come forward to provide assistance to, or act under the supervision of, Fire and Rescue NSW or to undertake ‘ambulance work’ are “deemed” to be employees of Fire and Rescue NSW (Schedule 1, cl 13) or the Health Admini­stration Corporation (Schedule 1, cl 19) and are therefore entitled to workers compensation should they be injured.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) establishes a BushFire-fighters Compensation Fund (s 19) and an Emergency and Rescue Workers Compensation Fund (s 31) to pay compensation to members of the Rural Fire Service, the State Emergency Service, Volun­teer Rescue Association, surf life-savers and other deemed fire-fighters or rescue workers who are injured in the course of their duties.   A fire fighter is:

… 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; or (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 Authority having regard to all the circumstances, should be deemed to be a fire fighter (s 5, definition of ‘fire fighter’).

The definition of emergency worker isn’t quite so broad, referring to a person appointed under various section of the State Emergency Service Act 1989 (NSW) or persons listed in the regulations which includes members of the SES, members of organisations ‘affiliated’ with the SES and members of a rescue squad operated by the New South Wales Volunteer Rescue Association (Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2012 (NSW).  There remains a catch all however, in that an emergency worker is also any ‘person who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 23(c), definition of ‘emergency worker’); the Authority is the WorkCover Authority of NSW (s 3)).

Both the definition of fire fighter and emergency worker are sufficiently broad, and have a very wide ‘catch all’ provision that would include the ‘casual passer-by’ who volunteers subject to the direction and control of the Rural Fire Service or State Emergency Service.

In the Northern Territory, a person who voluntarily engages in fighting a fire, training exercises or other activities ‘with the consent of or under the authority and supervision of, or in co-operation with. a volunteer fire brigade (established under the Bushfires Act) is deemed to be an employee of the Territory (Workers Rehabilitation and Compensation Act (NT) s 3, definition of ‘worker’).   As a deemed employee they will be entitled to workers’ compensation but there is no requirement that they were ‘signed up’ before the fire.

The position is not so generous for spontaneous volunteers with the Fire and Rescue Service of the NT or the SES established under the Fire and Emergency Act (NT).    The definition of worker, in that situation, extends to a person who voluntarily engages in fighting fires or dealing with other emergencies ‘as a volunteer member’.  A volunteer member must be appointed by the Director (Fire and Emergency Act (NT) s 14) so absent ‘field appointments’ the casual or spontaneous volunteer won’t be a member of the relevant organisation.

In Queensland any person who is acting ‘… under a resource operator direction or a help direction is taken, for the Workers’ Compensation and Rehabilitation Act 2003, to be employed by the Commissioner of the Police Service’ (Public Safety Preservation Act 1986 (Qld) ss 8(c), 8(i) and 45). Such a person would, if injured, be entitled to claim workers compensation in their position as a deemed employee.

The WorkCover authority may enter into contracts to provide worker’s compensation for members of the SES (including a ‘a person required to give reasonable help’ during an emergency), rural fire brigades, volunteer fire fighters and honorary ambulance officers (Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 13-15, 17).   It’s not clear what is the difference between a ‘member of a rural fire brigade’ (s 14) and a ‘volunteer fire fighter’ (s 15) so it’s not clear how far, or to whom, this provision extends.

South Australia is the “presumed” employer of volunteer fire fighters, State Emergency Service volunteers and volunteers with certain marine rescue organisations (Workers Rehabilitation and Compensation Act 1986 (SA) s 103A; Workers Rehabilitation and Compensation Regulations 2010 (SA), r 17).   A volunteer fire fighter includes a member of the Country Fire Service and any ‘person who, at the request or with the approval of a person who is apparently in command pursuant to Part 4 of the Fire and Emergency Services Act 2005, at the scene of a fire or other emergency, assists in fire-fighting or dealing with the emergency’.  Part 4 of the Fire and Emergency Services Act 2005 deals with the SA Country Fire Service so on that definition a person is a volunteer fire fighter if they are assisting the CFS but it does not matter if that is at a fire or other emergency.  As a deemed employee, a volunteer fire fighter would be entitled to workers compensation.

In Tasmania, an emergency management worker is a member of the emergency services as well as any person who is assisting or working under the direction of the emergency services or is participating in emergency management or rescue operations (Emergency Management Act 2006 (Tas) s 31).  A volunteer emergency management worker is entitled to compensation for lost or damaged property and for worker’s compensation payments, as if they were a government employee (ss 54 and 56).

In Victoria compensation is payable where a ‘… volunteer emergency worker suffers personal injury (including death) or loss of or damage to property belonging to the worker or in the worker’s possession or control while engaged in emergency activity’ (Emergency Management Act 1986 (Vic) s 27).    A volunteer emergency worker is a person ‘who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency response plan or the state emergency recovery plan applies’ (s 4, definition of ‘volunteer emergency worker’).  That definition would include any one assisting the Victoria SES, CFA or MFB at least during a declared state of emergency.  Compensation for personal injuries is to be paid as if the worker were emp­loyed by the Crown (that is the government) and had suffered the injury during the course of his work (s 28).

The Victoria State Emergency Service Act 2005 provides for compensation for personal injury or death, or for the loss or damage of personal effects for a member or probationary member of the State Emergency Service.

The Country Fire Authority Act 1958 provides for “compensation of casual fire-fighters and volunteer auxiliary workers” (s 63). A casual fire-fighter is anyone who ‘… without remuneration or reward voluntarily engages in fire-fighting at any fire in or outside Victoria with a Victorian brigade or group of brigades at the request  … [of] or with the approval … of an officer in charge of operations at the fire …’ (s 62) but excludes enrolled officers and members of a brigade, as well people who are assisting the CFA on land which they own, work on or live (s 65(2)).  Compensation for members of the CFA is provided for in the Country Fire Authority Regulations 2004.

Claims for compensation are made to the Country Fire Authority (Country Fire Authority Act 1958 (Vic) s 63(4); Country Fire Authority Regulations 2004 (Vic) s 76). In determining the amount of compensation to be paid, the Authority is required to have regard to the compensation that would be payable if the injured worker were entitled to compensation under the Workers Compensation Act 1958 or the Accident Compensation Act 1985 (Country Fire Authority Act 1958 (Vic) s 63(6); Country Fire Authority Regulations 2004 (Vic) s 82).

In Western Australia local governments that maintain a bush Fire Brigade must ensure that they hold a policy of insurance to pro­vide compensation for volunteer fire-fighters engaged in “normal brigade activities” (Bush Fires Act 1954 (WA) s 37).   A volunteer fire-fighter is ‘a bush fire control officer, a person who is a registered member of a bush fire brigade established under this Act or a person working under the direction of that officer or member’ (s 35A) and so this, too, could include the casual passer-by. A fire-fighter is entitled to compensation as if the fire-fighter was a “wor­ker” within the meaning of the Workers’ Compensation and Injury Management Act 1981 (WA).

What this summary has shown is that, just as in 1936, the role of ‘casual passers-by’ or ‘spontaneous volunteers’ was recognised in particular in the context of rural fire fighting. The difference is that in 1936 a casual passer-by was ‘encouraged to take whatever action within their capabilities to suppress’ a fire that they observed and would be compensated if injured in the course of that action.  Today they would not be covered for action that they took of their own initiative.  Today casual passers-by are insured for personal injury if, and only if, they are taking action at the direction of, under the supervision of, or with the authority of the relevant fire authority.  That may be a step away from local or community resilience as it doesn’t encourage action before the fire brigades arrive as it leaves the risk financial loss due to intervention with the spontaneous volunteer.

Colleagues at RMIT are undertaking research, funded by the Bushfire and Natural Hazards CRC, on ‘Out of uniform: building community resilience through non-traditional emergency volunteering’ and they will be looking at issues to do with brining non-traditional volunteers into emergency management planning.   I am involved in that project and issues of compensation may well be issues that are considered further in the course of that research.

This blog reports on two developments, one coming out of Sydney and the other from Melbourne (hence my ‘tale of two cities’).

Mike Baird, Premier of New South Wales has announced the introduction of the Rural Fires Amendment (Vegetation Clearing) Bill 2014 (NSW) to ‘make it easier to clear trees and vegetation from around a property’ (see ‘New laws to protect property from bush fires’).   The Bill completes a promise made after the 2013 Blue Mountains fires (see ‘NSW bushfires spark a range of new laws’ 13 November 2013).

The Bill requires the Commissioner of the RFS to develop ‘a 10/50 Vegetation Clearing Code of Practice for the carrying out of vegetation clearing work on land situated within a 10/50 vegetation clearing entitlement area’.  A 10/50 vegetation clearing entitlement area is land identified by the Commissioner and published on a map.  The Bill contains no details on what the Commissioner is to consider when identifying what land is to be within a 10/50 vegetation clearing area; presumably he or she could make a declaration covering the entire State!

The 10/50 vegetation clearing Code of Practice is to identify what sort of vegetation clearing can be done within a 10/50 vegetation clearing entitlement area.  The Code of Practice must detail the type of vegetation, including trees, that can be cleared; when vegetation should be pruned, but not cleared; when herbicides can be used; how to manage the risk of soil erosion and landslip; protection of riparian buffer zones (not defined); protection of Aboriginal and other cultural heritage and the protection of vegetation that the land owner is under a legal obligation to protect (eg it may be an offset for other development or the like).

It is not clear whether there is meant to be ‘a’ Code of Practice that applies to all vegetation clearing entitlement areas; or whether there can be different codes for different areas.  Certainly the latter interpretation would be more useful given that the vegetation protection needs will vary across the State, but the Bill consistently refers to ‘The’ Vegetation Clearing Code of Practice (eg ‘The Commissioner may amend the Vegetation Clearing Code of Practice…’; ‘The 10/50 Vegetation Clearing Code of Practice … must …’; ‘The 10/50 Vegetation Clearing Code of Practice is to be made publicly available…’).  If there was to be more than one code of practice, each of those clauses would need to start with ‘A’ rather than ‘The’; so the inference must be that there is to be only one code of practice that applies across the State and to each vegetation clearing entitlement area, wherever they are.

Within a vegetation clearing entitlement area, and subject to the Code of Practice, a landowner may:

(a) remove, destroy (but not by fire) or prune any vegetation (including trees or parts of trees) within 10 metres; and

(b) remove, destroy (but not by fire) or prune any vegetation other than trees or parts of trees, within 50 metres,

of an external wall of a building that contains a ‘habitable room’ (but not if the building was built without, or contrary to appropriate development consent), residential accommodation or a high-risk facility (as defined by the Standard Instrument (Local Environmental Plans) Order 2006).   This work may be done without the need to obtain any approval or other authorisation under the Native Vegetation Act 2003, the Environmental Planning and Assessment Act 1979 or any other Act.  It does not matter if the building is on the land being cleared or not; so if your neighbour’s home is within 50 metres of the boundary of your property, the right to clear extends into your property, it does not stop at the boundary fence.

In earlier posts (see ‘Damned if you do, damned if you don’t – what to do about personal hazard reduction‘ 22 October 2013 and ‘NSW bushfires spark a range of new laws’ 13 November 2013) rules like this may be good for hazard reduction, but they may also lead to unintended consequences, such as denuding areas around homes that people actually enjoy. The balance to be struck is not always clear.  Although the rules have been created to allow people to reduce their bushfire risk their motivation is in fact irrelevant.  In Nillumbik Shire Council v Potter [2010] VCAT 669 the Tribunal found that there was no need for a landowner to prove that bushfire mitigation was their intention.  If the landowner wanted to clear the land for any other purpose, say, removing vegetation to avoid any objection to allow a larger development, then that is permitted.   The Victoria Tribunal held that if the landowner had to somehow prove their motive, eg by applying to council, that would defeat the very purpose of allowing clearing without a permit.   A similar conclusion would apply here given the terms of the Bill.

That’s the response in New South Wales.   On the same day the Victorian government announced ‘Key reforms will streamline bushfire regulations’ (The Hon Matthew Guy MLC, Minister for Planning, Media Release, 28 May 2014; see also Michelle Ainsworth, ‘New Rules to allow families to build bunkers in fire-prone areas‘ Herald Sun, 28 May 2014).   The Victorian planning documents are so complex I can’t locate the actual document and I’m not clear, given that the release says ‘The statewide amendment will be implemented shortly’ whether there is actually a draft amendment or merely an announcement that the governemtn will implement this policy.  I rely therefore only on the Minister’s Media release.

In the Media release the Minister has announced that the

Key features of the reforms include:

• Allowing private bushfire bunkers as an alternative safety measure, where there may be increased bushfire safety risks that need additional consideration;

• Allowing vegetation clearance to achieve defendable space. The cleared area around a home is vital to protecting the home’s occupants. Vegetation clearance obligations (‘defendable space’) would be limited to the title boundary of the relevant property;

• Ensuring the assessment of bushfire risk is consistent with the Australian Standard;

• Allowing more sensible bushfire safety measures in new master-planned estates; and

• Allowing homes to be built on ‘infill’ lots surrounded by other dwellings. Where a dwelling is allowed, it will be able to be built with a fair and equitable bushfire response.

Allowing vegetation clearance sounds like the material discussed above, but allowing clearance to ‘achieve defendable space’ may be more extensive than the 10/50 rule being adopted in NSW and already adopted in Victoria.   Assessing bushfire risk in a way that is consistent with the Australian Standard seems reasonable as does allowing private bunkers provided they are adequately designed and constructed to ensure that they provide effective refuge.

It’s the last two dot points that raise concerns.  ‘Allowing more sensible bushfire safety measures in new master-planned estates’ and ‘Allowing homes to be built on ‘infill’ lots surrounded by other dwellings’ and ‘with a fair and equitable bushfire response’ all sound like ‘code’ for allowing more, not less, development in bush fire prone areas.  The Media release goes on to say:

Mr Guy said everyone was aware of the need to have a household Bushfire Plan, and to leave early on days of extreme fire risk.

“Victorians make informed decisions about living in areas of bushfire risk, and take responsibility for the risks of living in that environment,” Mr Guy said.

“By encouraging people to build homes to higher safety standards, the Napthine Government is improving the safety of the building stock as a whole. I hope that more Victorians will take the initiative of voluntarily improving the safety features of their existing home.

“These changes will help Victorians address the challenges of living in bushfire prone areas. It will see common sense return to planning decision making, while ensuring Victorians build their homes to the best possible standards,” Mr Guy said.

That’s all consistent with the concept of ‘shared responsibility’ that has received much attention in the 2009 Victorian Bushfires Royal Commission and the National Strategy for Disaster Resilience, and a libertarian may applaud the idea that ‘Victorians make informed decisions’ and ‘take responsibility for the risks of living in that environment’ but whether that’s in fact true remains debatable.  Without giving detailed reference there is much, and much ongoing research by institutions such as the Bushfire CRC* and now the Bushfire and Natural Hazards CRC* seeking to understand whether or not people are actually informed and what responsibility they do and should take for living in these areas.  It sounds like, if Mr Guy is to be taken literally, that the State of Victoria will allow people to build in these areas and will expect them, after the next bushfire, to have made adequate preparations to protect their home and to rebuild it should it be lost.   I somehow doubt that the response will be that cold and calculating.

Without access to the actual reform document it is not possible to identify the new rules or assess their likely impact, but the tone of the press release certainly suggests the Government, despite the immediate response to 2009, will be encouraging people back to the bush and, possibly, back into harm’s way.

* DISCLOSURE

My research has been funded by the Bushfire CRC and I am receiving ongoing funding from the Bushfire and Natural Hazards CRC.

The New South Wales Independent Commission Against Corruption (ICAC) has released its report into conduct by the Commissioner of the NSW State Emergency Service (SES).  There is also substantial media coverage of the issue – see ‘ICAC recommends dismissal, prosecution of NSW SES Commissioner Murray Kear over sacking of whistleblower‘, ABC Onlline, 28 May 2014; ‘ICAC finds SES Commissioner Murray Kear corrupt’, Sydney Morning Herald, 28 May 2014; ‘NSW SES commissioner Murray Kear facing call to be sacked after ICAC finds him corrupt’, Daily Telegraph, 28 May 2014.

Disclosure

The ICAC report and the media reports outline the facts and basis findings against Commissioner Kear so I don’t need to spell them out in detail.  Given the legal nature of this blog I’ll add to that other coverage with a discussion of the law.  Before I do that I need to disclose that I am a volunteer with the NSW SES and, in that capacity, have met Commissioner Kear and both Deputy Commissioners Pearce and McCarthy.  Further, I have been conducting research funded by the Bushfire CRC.  In my professional capacity I have significant contact with the many of the chief officers of Australia’s emergency services including Commissioner Kear.  My engagement with Commissioner Kear has been more significant in that professional capacity than in my volunteering.   The gist of the findings against the Commissioner relate to allowing his friendship with Deputy Commissioner Pearce to influence his actions and the performance of his duties.  In short his friendship gave rise to a conflict of interest that he failed to disclose or address.   I would fall into the same error if I allowed my contact with Commissioner Kear to influence my decision to blog, or not blog, on this significant legal outcome for one of Australia’s emergency services.

To the issue.

The ICAC is established to, inter alia, ‘investigate, expose and prevent corruption involving or affecting public authorities and public officials’ (Independent Commission Against Corruption Act 1988 (NSW) s 2A; ‘ICAC Act’).   A public official includes, amongst others, an officer of the public service or a person in the service of the Crown or a public authority (ICAC Act s 3).  The SES is an Executive Agency within the Department of Police and Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1) and, amongst other things, the accounts of the SES are subject to audit by the auditor general (Public Finance and Audit Act 1983 (NSW) Division 4A).  It follows that the SES is a public authority (ICAC Act s 3, definition of ‘public authority’) and the Commissioner is an officer of the public service and a person in the service of a public authority; he is a public official.

The definitions of what is corrupt conduct are long; relevantly the definition says (ICAC Act s 8(1)) that corrupt conduct is:

(a) any conduct … that adversely affects … the honest or impartial exercise of official functions by any public official … or

(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or

(c) any conduct of a public official … that constitutes or involves a breach of public trust.

Notwithstanding these broad provisions, conduct is not corrupt conduct unless it could also constitute a criminal offence, a disciplinary offence or ‘reasonable grounds for dismissing’ the public official (ICAC Act s 9).

One can see that it is a two stage test; first the ICAC must determine whether or not the alleged conduct occurred and if it did whether it was conduct described in s 8.  The Commission must then consider whether or not the conduct also meets the requirements of s 9 and then, and only then, can they find that there was corrupt conduct.

In this case, as the various media reports record, the issue was Commissioner Kear’s dealings with his Deputy Commissioners.   Deputy Commissioner McCarthy raised legitimate concerns regarding Deputy Commissioner Pearce’s performance; in short she was alleging impropriety and corruption by Deputy Commissioner Pearce.  (The ICAC was not investigating Deputy Commissioner Pearce so there is no finding against him; rather the issue was how Commissioner Kear dealt with the issues).   In raising issues of alleged corruption, Deputy Commissioner McCarthy was making a protected disclosure as defined in the Public Interest Disclosures Act 1994 (NSW) s 8(b).  It is an offence to take detrimental action against a person who makes a public interest disclosure (s 20).

I won’t detail the allegations against Deputy Commissioner Pearce as they have not been established and are reported elsewhere.  The first issue was that Commissioner Kear did not investigate the matters but rather relied on his friend’s assertion that there was no corruption or maladministration.   The Commissioner’s response was compared to allegations against another member of staff who was investigated and ultimately dismissed.    The ICAC found that there was a long standing friendship between Commissioner Kear and Deputy Commissioner Pearce that the Commissioner failed to disclose when on the panel that first interviewed the Deputy Commissioner for his appointment or when he subsequently appointed the Deputy Commissioner from a reserve list for that position.    The Commissioner also failed to either recognise or deal with his conflict of interest when the allegations were raised by stepping aside from the management of the issue and appointing an independent authority or person to investigate the allegations and take any necessary action.

The ICAC referred to the SES Code of Conduct and Ethics and the directions there regarding the management of a conflict of interest.  The ICAC said:

The SES Code of Conduct and Ethics policy required Commissioner Kear to be impartial and objective. It also required Commissioner Kear to demonstrate that he was being impartial and objective. He failed to comply with these requirements. Given the nature of his conflict of interest, he should have disqualified himself from dealing with the allegations made against Mr Pearce and should

The ICAC concluded that ‘Commissioner Kear’s conduct in deliberately failing to properly investigate allegations against Mr Pearce … because of his friendship with Mr Pearce is corrupt conduct’.  The conduct was corrupt.  They found it was corrupt because it was conduct that adversely affected ‘the honest or impartial exercise of official functions by any public official’  that is, his conduct affected his ‘honest or impartial’ performance, corruption does not have to be that person A influences public official, B – here the person adversely affecting the performance of the public official was himself.   The conduct was also corrupt because it involved the ‘dishonest or partial exercise’ of the Commissioner’s functinos, that is he had duties and functions that required him to receive and investigate the allegations and he failed to do so or, to the extent he did so, it was only a ‘partial’ exercise of his functions.   The ICAC also concluded that Commissioner Kear’s conduct ‘could also constitute or involve a breach of public trust and therefore come within s 8(1)(c) of the ICAC Act’.

The ICAC then had to consider whether this met the test in s 9.  It was found that a relevant tribunal could be satisfied that ‘Commissioner Kear has committed a disciplinary offence, namely misconduct, and that his conduct could constitute or involve reasonable grounds for his dismissal’.  The tests in ss 8 and 9 being met, the ICAC found that the conduct was corrupt and recommended that ‘minister for police and emergency services should give consideration to the taking of action against Commissioner Kear for the disciplinary offence of misconduct’.

The other issue investigated by the ICAC was how Commissioner Kear dealt with Deputy Commissioner McCarthy.  Deputy Commissioner McCarthy was dismissed, without notice, on the basis that the Commissioner had lost confidence in her.  She was escorted from the premises and she immediately reported the matter to the ICAC.  Commissioner Kear’s submissions were that the dismissal was due to conflicts between the two Deputy Commissioners which could not be resolved and Deputy Commissioner McCarthy’s public criticism of him.  The ICAC rejected those reasons, seeing the issue as a personality conflict rather that Deputy Commissioner McCarthy doing her job to raise issues of corruption and maladministration was part of the problem.  The ICAC rejected these arguments and found that the reason for the dismissal was as a reprisal for Commissioner McCarthy for raising allegations of corruption against Deputy Commissioner Pearce.    Again the ICAC found that Commissioner Kear’s actions fell within the definitions set out in ss 8(1)(a), (b) and (c) of the ICAC Act.

Further, as noted it is an offence to take reprisal action against a person who makes a protected disclosure and sacking them without notice was, in this case, a reprisal action.  The ICAC found that a court could be satisfied that this offence had been committed and so recommended that the government obtain advice from the Director of Public Prosecutions to consider launching a criminal case against the Commissioner.   The ICAC also recommended that ‘the minister for police and emergency services should give consideration to the taking of action against Commissioner Kear for the disciplinary offence of misconduct … with a view to his dismissal’.

 Lessons

The lesson from this is reflected in an old legal adage, “Be you ever so high, the law is above you” (See ‘The rule of law’).  Members of the SES are expected to comply with the Code of Conduct of Ethics and this finding demonstrates that this obligations applies to everyone in the organisation.  It is not just a stick to hold over volunteers and unit controllers, it applies at all levels of the organisation.

Outside the emergency service context it demonstrates that there are processes in place to expose corruption and to provide (albeit after a lengthy process) some protection to whistleblowers.  That may provide some reassurance but one can’t believe that this whole process has not had a significant personal cost for Deputy Commissioner McCarthy.

For the SES it’s all just a tragedy.  It has been revealed that maladministration and corruption has cost the SES significant amounts of money (including some $60 000 in overtime that was allowed to be incurred).  That is money that the governments deliver to allow the SES to respond to floods, storms and other emergencies, not to line the pockets of senior staff.   Whilst volunteers were, appropriately, not allowed to spend unit funds on a Christmas Party (Alex McConachie, ‘SES volunteers’ Christmas party axed’, The Daily Advertiser, 16 December 2013) State Headquarters funds were, inappropriately, being spent on private vehicles, inappropriate overtime and other excesses.  Even more has been spent responding to the allegations both before and during the ICAC inquiry.  Hopefully the public scrutiny will not impact upon the goodwill of the volunteers, both the goodwill they show by volunteering and the goodwill they receive from the community that, indirectly, funds the SES through taxes and levies on insurance premiums.

A correspondent has written about the provision of first aid by security guards.  They write:

During my professional travels, I often work closely with licensed security officers (also called known as licensed security guards or mine site access control officers), their managers and the licensed security companies whom are responsible for the contractual delivery of multidisciplinary security services including the provision of emergency first aid on client mine and resources sites.

From my investigation, a licensed security officer in all states and territories of Australia is required to hold an in date Apply First Aid Certificate (old Senior First Aid or Level 2 First Aid) and currency in CPR as part of their licensing requirements.  Although this is a formal legislative requirement, I often find during my professional travels that both the security officers, their managers and the companies they work for have quite a naïve, overly simplistic or limited understanding of their true responsibilities when delivering first aid services during the course of their security duties.  Similarly they often have no visible clinical governance systems or support in place to safeguard their practice (i.e. patient safety governance), their clients or to ensure they are operating in line with the legislators’ requirements for utilisation of drugs and poisons.

Some of the many legal questions that I have and would like to share clarifications with via your blog or other are;

1. Is it possible to come to the conclusion that these licensed security officers are also seen by law as ‘professional first aiders’ and what does this mean?

2. What is the security officer/s and their security company’s true responsibility in contractually providing first aid services in the workplace and how is a duty of care in such circumstances validated as opposed to someone providing voluntary first aid to a patient in a public setting?

3. If available, does a registered Medical Doctor on the end of a telephone for on-call consultation decrease the licensed security officers and their security company’s liability in the case of adverse event?

4. It appears that many security companies only carry professional liability instead of a combination professional and medical liability? Understandably this is a complex area, but would it not be a reasonable expectation for a client or a client patient to expect a minimum level of insurance is formally in place in a professional setting to protect them?

As I’m sure most subscriber’s to this blog know, there is no such thing as the First Aid Act or the like.  Acts creating the various ambulance services do not govern ambulance and first aid services generally, only the state ambulance service except to the extent that they say it’s an offence to provide an ambulance service or use the term ‘ambulance’ or ‘paramedic’ without appropriate permission.  What follows from that is one can’t look up ‘the’ law to find answers to questions like these, one has to infer the answers form other law and general principles.

There is however a law relating to licensed security guards.  In New South Wales that law is the Security Industry Act 1997 (NSW) and its associated regulation.  Briefly that Act does say that to be a security guard one does have to have completed various prescribed training and part of that training includes obtaining and holding a current first aid certificate (see NSW Police ‘Competency Requirements for Class 1 Licences’  (April 2014)).  I will assume that these provisions are nationally consistent or at least near enough to consistent to make no difference.

Question 1:

A security guard needs to hold a first aid certificate but so do lots of people.  Does that make them a ‘professional first aider’ and what does this mean?  The answer is that ‘professional first aider’ has no specific meaning, it means whatever the person using the phrase means by it.  It could mean someone who gets paid to do first aid so in that sense every office first aid officer who gets paid an allowance to hold a first aid certificate and who is expected to provide first aid when called upon to do so, but how may never actually be called upon, is a professional first aider.  Or it could mean someone who’s primary duty, their principle employment is to provide first aid, or it could mean something else.

Are security guards first aiders?  Well that would depend on their terms of employment and their duty statement.   When I was an undergraduate law student I earned my pocket money as a security guard (patron control officer) at the Sydney Entertainment Centre.  We were never instructed that our job was to provide first aid nor would we have done so as whenever we were at work, St John Ambulance volunteers were on duty so we would, if needed, call them.

Today I work at the Australian National University, a large, complex campus.  Each building or work area has at least one, usually more than one, first aid officer but we know that ANU Security carry oxygen, a defibrillator and who knows what else.  Where a person needs ambulance assistance we call security, partly because they need to direct the ambulance around the rabbit warren that is a university campus, but also because they provide a rapid response first aid service.   I think there is little doubt you could call them professional first aiders.   Between those two extremes there could be a myriad of alternatives.

Conclusion on question 1: It is possible to conclude that some security guards are professional first aiders but what that means depends on what the person asking the question means.  It is not possible to conclude that all security guards, just because they are required to hold a first aid certificate, are professional first aiders.

Question 2:

The security officer/s and their security company’s true responsibility in contractually providing first aid services in the workplace would depend entirely on the terms of the contract.  There may be no responsibility at all (eg a security company that drives around at night to ensure buildings are secure) to a responsibility to meet the companies responsibilities under Work Health and Safety Legislation (see for example the Work Health and Safety Regulation 2011 (NSW) reg 42, ‘Duty to provide first aid’).   The company providing security services may also offer further advanced first aid or paramedic services.  It is all a matter of agreement between the parties and the business model of the security company.

The duty of care in any case is determined by asking how would a reasonable person/security company react to a given situation?  That would require expert evidence but as the High Court said, (when talking about an ophthalmic surgeon but the principal is universal) ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’ (Rogers v Whitaker (1992) 175 CLR 479, [6]).  So the standard of care of the security guards depends upon what skill they claim to have.  If the company providing security services agrees to provide licensed security guards then it must follow that they have a first aid certificate but their only obligation would be to act reasonably in the circumstances and that would be no different than anyone else. I don’t think one can necessarily expect a lot from someone who completed a first aid course somewhere in the last three years. If on the other hand they are held out as having some extra skill then the ‘standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’

Conclusion on question 2: It depends entirely upon the terms of the agreement and any special skill that the security firm says that it, or the guards, have. Merely holding a first aid certificate would not, in my view, constitute a special skill.

Question 3:

Does a registered Medical Doctor on the end of a telephone for on-call consultation decrease the licensed security officers and their security company’s liability in the case of adverse event?

Well it could do if that was a reasonable response to some perceived risk that the security firm had a duty to deal with.  It would also depend on what caused the adverse event.  If the doctor is employed for that purpose, and there was some training on how the guards and doctor were to work together, and the guards did what the doctor said to do but the doctor’s advice was negligent then that would make no difference.  The security company would be liable for the negligence of its employees whether they are the doctor or the guards.  If the doctor’s not negligent but the guards were, then the company is still liable.  If no-one’s negligent, no-one’s liable even if there is an adverse event.

Conclusion on question 3: It could; it all depends on the facts.

Question 4

Professional liability insurance is not a defined legal term.  Anyone who has insurance to shift the risk of legal liability that may arise in the course of the practice of his or her profession has professional liability insurance.  If a security company has insurance to shift the risks that arise in the course of their business that is professional liability insurance and if, in the course of their business, they provide first aid services, then their insurance will cover any liability that arises from that service.  If they’re not running a medical practice they don’t need ‘medical liability’ insurance.  They need insurance to cover their liability for their negligence and the negligence of their staff in the performance of their duties and if that includes first aid then that is what is covered.    If a negligent security guard injures you, either because he or she ejects you from premises or negligently administers first aid (remembering that in reality the chances of proving that are infinitesimally small) then their employer will be liable.  Whether they have insurance or not is a matter for them (subject to any obligation that may be imposed by their license, or some other law).

Conclusion as to question 4:  Subject to any requirement under other laws, the question of insurance is a matter for the security company. They can be liable whether they have insurance or not.  The risk of being liable in the provision of first aid is very, very low.  The insurance the company has to protect itself from legal liability arising from the negligence of its employees would be sufficient.

A correspondent has written about the provision of first aid by security guards.  They write:

During my professional travels, I often work closely with licensed security officers (also called known as licensed security guards or mine site access control officers), their managers and the licensed security companies whom are responsible for the contractual delivery of multidisciplinary security services including the provision of emergency first aid on client mine and resources sites.

From my investigation, a licensed security officer in all states and territories of Australia is required to hold an in date Apply First Aid Certificate (old Senior First Aid or Level 2 First Aid) and currency in CPR as part of their licensing requirements.  Although this is a formal legislative requirement, I often find during my professional travels that both the security officers, their managers and the companies they work for have quite a naïve, overly simplistic or limited understanding of their true responsibilities when delivering first aid services during the course of their security duties.  Similarly they often have no visible clinical governance systems or support in place to safeguard their practice (i.e. patient safety governance), their clients or to ensure they are operating in line with the legislators’ requirements for utilisation of drugs and poisons.

Some of the many legal questions that I have and would like to share clarifications with via your blog or other are;

1. Is it possible to come to the conclusion that these licensed security officers are also seen by law as ‘professional first aiders’ and what does this mean?

2. What is the security officer/s and their security company’s true responsibility in contractually providing first aid services in the workplace and how is a duty of care in such circumstances validated as opposed to someone providing voluntary first aid to a patient in a public setting?

3. If available, does a registered Medical Doctor on the end of a telephone for on-call consultation decrease the licensed security officers and their security company’s liability in the case of adverse event?

4. It appears that many security companies only carry professional liability instead of a combination professional and medical liability? Understandably this is a complex area, but would it not be a reasonable expectation for a client or a client patient to expect a minimum level of insurance is formally in place in a professional setting to protect them?

As I’m sure most subscriber’s to this blog know, there is no such thing as the First Aid Act or the like.  Acts creating the various ambulance services do not govern ambulance and first aid services generally, only the state ambulance service except to the extent that they say it’s an offence to provide an ambulance service or use the term ‘ambulance’ or ‘paramedic’ without appropriate permission.  What follows from that is one can’t look up ‘the’ law to find answers to questions like these, one has to infer the answers form other law and general principles.

There is however a law relating to licensed security guards.  In New South Wales that law is the Security Industry Act 1997 (NSW) and its associated regulation.  Briefly that Act does say that to be a security guard one does have to have completed various prescribed training and part of that training includes obtaining and holding a current first aid certificate (see NSW Police ‘Competency Requirements for Class 1 Licences’  (April 2014)).  I will assume that these provisions are nationally consistent or at least near enough to consistent to make no difference.

Question 1:

A security guard needs to hold a first aid certificate but so do lots of people.  Does that make them a ‘professional first aider’ and what does this mean?  The answer is that ‘professional first aider’ has no specific meaning, it means whatever the person using the phrase means by it.  It could mean someone who gets paid to do first aid so in that sense every office first aid officer who gets paid an allowance to hold a first aid certificate and who is expected to provide first aid when called upon to do so, but how may never actually be called upon, is a professional first aider.  Or it could mean someone who’s primary duty, their principle employment is to provide first aid, or it could mean something else.

Are security guards first aiders?  Well that would depend on their terms of employment and their duty statement.   When I was an undergraduate law student I earned my pocket money as a security guard (patron control officer) at the Sydney Entertainment Centre.  We were never instructed that our job was to provide first aid nor would we have done so as whenever we were at work, St John Ambulance volunteers were on duty so we would, if needed, call them.

Today I work at the Australian National University, a large, complex campus.  Each building or work area has at least one, usually more than one, first aid officer but we know that ANU Security carry oxygen, a defibrillator and who knows what else.  Where a person needs ambulance assistance we call security, partly because they need to direct the ambulance around the rabbit warren that is a university campus, but also because they provide a rapid response first aid service.   I think there is little doubt you could call them professional first aiders.   Between those two extremes there could be a myriad of alternatives.

Conclusion on question 1: It is possible to conclude that some security guards are professional first aiders but what that means depends on what the person asking the question means.  It is not possible to conclude that all security guards, just because they are required to hold a first aid certificate, are professional first aiders.

Question 2:

The security officer/s and their security company’s true responsibility in contractually providing first aid services in the workplace would depend entirely on the terms of the contract.  There may be no responsibility at all (eg a security company that drives around at night to ensure buildings are secure) to a responsibility to meet the companies responsibilities under Work Health and Safety Legislation (see for example the Work Health and Safety Regulation 2011 (NSW) reg 42, ‘Duty to provide first aid’).   The company providing security services may also offer further advanced first aid or paramedic services.  It is all a matter of agreement between the parties and the business model of the security company.

The duty of care in any case is determined by asking how would a reasonable person/security company react to a given situation?  That would require expert evidence but as the High Court said, (when talking about an ophthalmic surgeon but the principal is universal) ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’ (Rogers v Whitaker (1992) 175 CLR 479, [6]).  So the standard of care of the security guards depends upon what skill they claim to have.  If the company providing security services agrees to provide licensed security guards then it must follow that they have a first aid certificate but their only obligation would be to act reasonably in the circumstances and that would be no different than anyone else. I don’t think one can necessarily expect a lot from someone who completed a first aid course somewhere in the last three years. If on the other hand they are held out as having some extra skill then the ‘standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill’

Conclusion on question 2: It depends entirely upon the terms of the agreement and any special skill that the security firm says that it, or the guards, have. Merely holding a first aid certificate would not, in my view, constitute a special skill.

Question 3:

Does a registered Medical Doctor on the end of a telephone for on-call consultation decrease the licensed security officers and their security company’s liability in the case of adverse event?

Well it could do if that was a reasonable response to some perceived risk that the security firm had a duty to deal with.  It would also depend on what caused the adverse event.  If the doctor is employed for that purpose, and there was some training on how the guards and doctor were to work together, and the guards did what the doctor said to do but the doctor’s advice was negligent then that would make no difference.  The security company would be liable for the negligence of its employees whether they are the doctor or the guards.  If the doctor’s not negligent but the guards were, then the company is still liable.  If no-one’s negligent, no-one’s liable even if there is an adverse event.

Conclusion on question 3: It could; it all depends on the facts.

Question 4

Professional liability insurance is not a defined legal term.  Anyone who has insurance to shift the risk of legal liability that may arise in the course of the practice of his or her profession has professional liability insurance.  If a security company has insurance to shift the risks that arise in the course of their business that is professional liability insurance and if, in the course of their business, they provide first aid services, then their insurance will cover any liability that arises from that service.  If they’re not running a medical practice they don’t need ‘medical liability’ insurance.  They need insurance to cover their liability for their negligence and the negligence of their staff in the performance of their duties and if that includes first aid then that is what is covered.    If a negligent security guard injures you, either because he or she ejects you from premises or negligently administers first aid (remembering that in reality the chances of proving that are infinitesimally small) then their employer will be liable.  Whether they have insurance or not is a matter for them (subject to any obligation that may be imposed by their license, or some other law).

Conclusion as to question 4:  Subject to any requirement under other laws, the question of insurance is a matter for the security company. They can be liable whether they have insurance or not.  The risk of being liable in the provision of first aid is very, very low.  The insurance the company has to protect itself from legal liability arising from the negligence of its employees would be sufficient.

The litigation from the Canberra 2003 fires continued today with the start of the appeal in the ACT Court of Appeal (see ‘Fallout from 2003 bushfires reaches new stage’, Canberra Times, 23 May 2014) (and thank you to Ignatious Cha, who’s doing a research project on the legal fallout from these fires, for bringing this to my attention).  I have given my thoughts on the original decision by Higgins CJ elsewhere (see ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’ (18 December 2012) and ‘Final chapter of the Supreme Court proceedings from the 2003 fires’ (8 August 2013)).

This ‘new stage’ is an appeal to the Court of Appeal.  Here three judges will review the decision of Higgins CJ to see if, in their opinion, the Chief Justice correctly identified and applied the law.  This decision will have less to say about the facts, generally speaking accepting that whatever Higgins CJ said was proved on the balance of probabilities is correct so the findings that if there had been more action on the 9th of January and if more steps had been taken to prepare the Goodradigbee river to serve as a fire break, then the fire would not have burned into Canberra, will stand.   What will, I anticipate, be under review here is the finding that the State could rely on section 43 of the Civil Liability Act 2002 (NSW) and s 128 of the Rural Fires Act 1997 (NSW) as defences, and whether or not the state owed the plaintiff’s a duty of care.  I will explain these in more detail below.

The newspaper is reporting that:

… the ACT Supreme Court ruled against them  [that is, the plaintiffs] in December 2012, despite a finding that NSW has embraced an “inadequate and defective strategy” to fight the fires. That is because, under NSW law, they needed to prove the state’s actions were unreasonable.

and later

The original hearing took 80 days of evidence and submissions, before the former chief justice reserved his decision for about a year. His decision found negligence but did not find NSW liable because the evidence fell short of showing the state’s conduct was unreasonable.

That is not quite correct.  Under the common law, in order to prove negligence, a plaintiff has to prove that the defendant’s conduct fell below the standard that could be expected of a reasonable person in the defendant’s position; that is that the defendant’s conduct was ‘unreasonable’.  Higgins CJ did find that the conduct of the State, through its agencies of the Rural Fire Service and National Parks and Wildlife Service, was ‘unreasonable’ so the journalists conclusion that ‘His decision found negligence…’ is correct, but logically inconsistent with the statement that ‘the evidence fell short of showing the state’s conduct was unreasonable’.  If the evidence had fallen short of showing that the state’s conduct was unreasonable, his Honour could not have found negligence.

The State was relying on s 43 of the Civil Liability Act 2002 (NSW).  That section says:

 … an act or omission of [a public or other] authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

That is said to replace the common law test of ‘negligence’ with a tougher test of ‘gross negligence’.  Higgins CJ found that the conduct of the State met the common law test but not this tougher, statutory test, and that is why he said, as the article reports ‘”Effectively, [the plaintiffs] are deprived by statute of what would, under the general law, be regarded as just compensation.”

There are a number of issues that could arise here, they may include was the action against the RFS and NPWS an action for breach of a statutory duty or an action for a breach of a common law duty and if so did Higgins CJ correctly apply the section?  Was the evidence enough that Higgins CJ should have concluded that the negligence did in law constitute gross negligence?

Even if there had been gross negligence, Higgins CJ found that there was also a defence under the Rural Fires Act 1997 (NSW) s 128 which says:

A matter or thing done or omitted to be done … does not, if the matter or thing was done in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

His Honour found that all the defendants were acting in good faith for the purpose of executing the provisions of the Rural Fires Act.  The issues that may arise here relate to the burden of proof, that is does the defendant have to prove good faith and if so does it need to call specific evidence as to good faith or is it enough to infer good faith from the actions and evidence?  What, in the context does ‘good faith’ mean?

I expect that the defendant will also want to argue issues of law.  In particular I expect that they would want to argue that Higgins CJ’s conclusion that the State owed a legal duty of care to the plaintiffs is incorrect at law and inconsistent with earlier case law.

A decision of a single judge, even the Chief Justice, is not a precedent that other courts must follow.  These cases are the initial trial that determines the facts.  The decision of three judges, sitting as the Court of Appeal does set a binding precedent on issues of law that subsequent trial judges must apply.  A decision of the ACT Court of Appeal is only binding in the ACT but judges in other jurisdictions are likely to follow it unless they are persuaded it is manifestly wrong or somehow not applicable given the law in that jurisdiction.  Interestingly this case will involve the ACT Supreme Court making a ruling on NSW law

The ACT Court of Appeal may not be the final stage.  Whatever the decision the losing party may seek to take the matter to the High Court.  Appeals to the High Court are not lodged ‘by right’ that is no-one has the right to appeal to the High Court, an application has to be made persuading the Court that there is a legal issue that warrants their attention. In my earlier posts I have argued that, in my view, the decision of Higgins CJ is inconsistent with the decision of Walmsley AJ in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701.  If the ACT Court of Appeal finds that Higgins CJ’s decision was wrong and that the law as described by Walmsley AJ (who found the fire service did not owe a duty of care to individual plaintiffs) is correct, then the law in both jurisdictions will be brought in line and that may be the end of it.  If, on the other hand, the Court of Appeal prefers the decision of Higgins CJ we will have a situation where the NSW Supreme Court takes one view of NSW law and the ACT Supreme Court, another.  This would be a situation that could invite an appeal to the High Court.  There may well be, depending on the Court of Appeal’s decision, other grounds for a High Court appeal.  The High Court of Australia is the final court of appeal, so there is no where to go after that; and a decision of the High Court sets a precedent that is binding on all judges in all Australian states and territories.

If there is no appeal to the High Court the Court of Appeal may uphold the original decision (that the State is not liable); set aside that decision and record instead a verdict for the plaintiff or plaintiffs or order the matter back to the Supreme Court for further hearing to apply the law as they describe it.  That may be a re-hearing on just some issue or a whole new trial.

The hearing before the Court of Appeal may be a ‘new’ stage, but there is no guarantee it will be the last stage!

The litigation from the Canberra 2003 fires continued today with the start of the appeal in the ACT Court of Appeal (see ‘Fallout from 2003 bushfires reaches new stage’, Canberra Times, 23 May 2014) (and thank you to Ignatious Sing, who’s doing a research project on the legal fallout from these fires, for bringing this to my attention).  I have given my thoughts on the original decision by Higgins CJ elsewhere (see ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’ (18 December 2012) and ‘Final chapter of the Supreme Court proceedings from the 2003 fires’ (8 August 2013)).

This ‘new stage’ is an appeal to the Court of Appeal.  Here three judges will review the decision of Higgins CJ to see if, in their opinion, the Chief Justice correctly identified and applied the law.  This decision will have less to say about the facts, generally speaking accepting that whatever Higgins CJ said was proved on the balance of probabilities is correct so the findings that if there had been more action on the 9th of January and if more steps had been taken to prepare the Goodradigbee river to serve as a fire break, then the fire would not have burned into Canberra, will stand.   What will, I anticipate, be under review here is the finding that the State could rely on section 43 of the Civil Liability Act 2002 (NSW) and s 128 of the Rural Fires Act 1997 (NSW) as defences, and whether or not the state owed the plaintiff’s a duty of care.  I will explain these in more detail below.

The newspaper is reporting that:

… the ACT Supreme Court ruled against them  [that is, the plaintiffs] in December 2012, despite a finding that NSW has embraced an “inadequate and defective strategy” to fight the fires. That is because, under NSW law, they needed to prove the state’s actions were unreasonable.

and later

The original hearing took 80 days of evidence and submissions, before the former chief justice reserved his decision for about a year. His decision found negligence but did not find NSW liable because the evidence fell short of showing the state’s conduct was unreasonable.

That is not quite correct.  Under the common law, in order to prove negligence, a plaintiff has to prove that the defendant’s conduct fell below the standard that could be expected of a reasonable person in the defendant’s position; that is that the defendant’s conduct was ‘unreasonable’.  Higgins CJ did find that the conduct of the State, through its agencies of the Rural Fire Service and National Parks and Wildlife Service, was ‘unreasonable’ so the journalists conclusion that ‘His decision found negligence…’ is correct, but logically inconsistent with the statement that ‘the evidence fell short of showing the state’s conduct was unreasonable’.  If the evidence had fallen short of showing that the state’s conduct was unreasonable, his Honour could not have found negligence.

The State was relying on s 43 of the Civil Liability Act 2002 (NSW).  That section says:

 … an act or omission of [a public or other] authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

That is said to replace the common law test of ‘negligence’ with a tougher test of ‘gross negligence’.  Higgins CJ found that the conduct of the State met the common law test but not this tougher, statutory test, and that is why he said, as the article reports ‘”Effectively, [the plaintiffs] are deprived by statute of what would, under the general law, be regarded as just compensation.”

There are a number of issues that could arise here, they may include was the action against the RFS and NPWS an action for breach of a statutory duty or an action for a breach of a common law duty and if so did Higgins CJ correctly apply the section?  Was the evidence enough that Higgins CJ should have concluded that the negligence did in law constitute gross negligence?

Even if there had been gross negligence, Higgins CJ found that there was also a defence under the Rural Fires Act 1997 (NSW) s 128 which says:

A matter or thing done or omitted to be done … does not, if the matter or thing was done in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

His Honour found that all the defendants were acting in good faith for the purpose of executing the provisions of the Rural Fires Act.  The issues that may arise here relate to the burden of proof, that is does the defendant have to prove good faith and if so does it need to call specific evidence as to good faith or is it enough to infer good faith from the actions and evidence?  What, in the context does ‘good faith’ mean?

I expect that the defendant will also want to argue issues of law.  In particular I expect that they would want to argue that Higgins CJ’s conclusion that the State owed a legal duty of care to the plaintiffs is incorrect at law and inconsistent with earlier case law.

A decision of a single judge, even the Chief Justice, is not a precedent that other courts must follow.  These cases are the initial trial that determines the facts.  The decision of three judges, sitting as the Court of Appeal does set a binding precedent on issues of law that subsequent trial judges must apply.  A decision of the ACT Court of Appeal is only binding in the ACT but judges in other jurisdictions are likely to follow it unless they are persuaded it is manifestly wrong or somehow not applicable given the law in that jurisdiction.  Interestingly this case will involve the ACT Supreme Court making a ruling on NSW law

The ACT Court of Appeal may not be the final stage.  Whatever the decision the losing party may seek to take the matter to the High Court.  Appeals to the High Court are not lodged ‘by right’ that is no-one has the right to appeal to the High Court, an application has to be made persuading the Court that there is a legal issue that warrants their attention. In my earlier posts I have argued that, in my view, the decision of Higgins CJ is inconsistent with the decision of Walmsley AJ in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701.  If the ACT Court of Appeal finds that Higgins CJ’s decision was wrong and that the law as described by Walmsley AJ (who found the fire service did not owe a duty of care to individual plaintiffs) is correct, then the law in both jurisdictions will be brought in line and that may be the end of it.  If, on the other hand, the Court of Appeal prefers the decision of Higgins CJ we will have a situation where the NSW Supreme Court takes one view of NSW law and the ACT Supreme Court, another.  This would be a situation that could invite an appeal to the High Court.  There may well be, depending on the Court of Appeal’s decision, other grounds for a High Court appeal.  The High Court of Australia is the final court of appeal, so there is no where to go after that; and a decision of the High Court sets a precedent that is binding on all judges in all Australian states and territories.

If there is no appeal to the High Court the Court of Appeal may uphold the original decision (that the State is not liable); set aside that decision and record instead a verdict for the plaintiff or plaintiffs or order the matter back to the Supreme Court for further hearing to apply the law as they describe it.  That may be a re-hearing on just some issue or a whole new trial.

The hearing before the Court of Appeal may be a ‘new’ stage, but there is no guarantee it will be the last stage!