A correspondent writes:

I recently read with interest your following article, Nurses as ‘good Samaritans’ – can I be liable if I do stop? (March 2014) retrieved from the following link:

https://emergencylaw.wordpress.com/2014/03/22/nurses-as-good-samaritans/

As a registered nurse I consider that our regulatory body, the Nursing and Midwifery Board of Australia (NMBA) needs to consider publishing a position statement or professional guideline on this topic. From my experience many licensed nurses and midwives do lack knowledge in this area and since the Queensland Nursing Council became defunct in 2010 there are no contemporary professional guidelines on this subject other then the NMBA Decision Making Framework. This framework can be accessed from the following link, titles Codes & Guidelines with the sub title of Decision Making Framework (DMF):

http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Codes-Guidelines.aspx

This framework is excellent for when a licensed nurse is working within an organisational work context (on duty) but based on personal and anecdotal evidence I don’t consider it guides nurses when they are off duty and faced with decisions about care in an emergency situation within a community setting such as for example a shopping mall.

In reference to the previous regulatory body, The Qld Nursing Council (QNC), their framework included statements such as:

Exclusions – when the Framework does not apply

A nurse or midwife can use the relevant principles to determine what activities or tasks they can delegate or accept. But, in the following circumstances the Framework should not be used:

1.0 Actions in an emergency

Nothing in this document can be construed as preventing a nurse, midwife or other person from taking appropriate action in an emergency.

In relation to the above QNC Framework please refer to: p. 4/18 http://www.health.qld.gov.au/parrot/html/documents/nursingscprac.pdf

Broadly speaking I think most licensed nurses would prefer a regulatory guideline/position statement on this matter rather then interpreting Good Samaritan Laws.

Your opinion on this matter would be personally appreciated.

It’s certainly a concern if nurses or other health practitioners believed that they could not render assistance as some complex procedure had been involved.  As my correspondent notes the Decision Making Framework requires a nurse to

•          Identify client need/benefit

•          Reflect on scope of practice and nursing practice standards

•          Consider context of practice/organisational support

•          Select appropriate, competent person to perform the activity

In any nursing practice this will often be automatic as nurses go about their daily work they know what is in their scope of practice and what their organization expects and whether it is their task or someone else.  Equally even in a roadside emergency a nurse may quickly identify what action is required and that action may be non controversial (eg the patient has stopped breathing and needs CPR) and know that in the context they are competent and appropriate to do that.

It is hard to see how this sort of framework would actually stop anyone doing what they can at an emergency or accident but if there is that fear, a comment such as ‘Nothing in this document can be construed as preventing a nurse, midwife or other person from taking appropriate action in an emergency’ could be helpful.

The Medical Board of Australia, Good Medical Practice: A Code Of Conduct For Doctors In Australia (March 2014)  says:

2.5          Treatment in emergencies

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

That seems like a perfectly reasonable statement of what might be expected by anyone in an emergency.

What has to be reiterated is that people DO NOT get sued for stopping and helping at accidents.  Courts have bent over backwards to ensure that people who go to help are not denied compensation for their own, even foolishly caused injuries and that the original wrongdoer is liable for any extra damage done by a rescuer.   No court or tribunal would ever accept that some statement on nursing ethics or practice is intended to, or does, stop a nurse providing assistance at an emergency.  But remember Dr Lowns was liable for not attending an accident (Lowns v Woods (1996) Aust Torts Reports 81-376) and Dr Dekker was guilty of improper professional conduct for not rendering assistance (Medical Board Of Australia v Dekker [2013] WASAT 182).

A correspondent writes:

I recently read with interest your following article, Nurses as ‘good Samaritans’ – can I be liable if I do stop? (March 2014) retrieved from the following link:

http://emergencylaw.wordpress.com/2014/03/22/nurses-as-good-samaritans/

As a registered nurse I consider that our regulatory body, the Nursing and Midwifery Board of Australia (NMBA) needs to consider publishing a position statement or professional guideline on this topic. From my experience many licensed nurses and midwives do lack knowledge in this area and since the Queensland Nursing Council became defunct in 2010 there are no contemporary professional guidelines on this subject other then the NMBA Decision Making Framework. This framework can be accessed from the following link, titles Codes & Guidelines with the sub title of Decision Making Framework (DMF):

http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Codes-Guidelines.aspx

This framework is excellent for when a licensed nurse is working within an organisational work context (on duty) but based on personal and anecdotal evidence I don’t consider it guides nurses when they are off duty and faced with decisions about care in an emergency situation within a community setting such as for example a shopping mall.

In reference to the previous regulatory body, The Qld Nursing Council (QNC), their framework included statements such as:

Exclusions – when the Framework does not apply

A nurse or midwife can use the relevant principles to determine what activities or tasks they can delegate or accept. But, in the following circumstances the Framework should not be used:

1.0 Actions in an emergency

Nothing in this document can be construed as preventing a nurse, midwife or other person from taking appropriate action in an emergency.

In relation to the above QNC Framework please refer to: p. 4/18 http://www.health.qld.gov.au/parrot/html/documents/nursingscprac.pdf

Broadly speaking I think most licensed nurses would prefer a regulatory guideline/position statement on this matter rather then interpreting Good Samaritan Laws.

Your opinion on this matter would be personally appreciated.

It’s certainly a concern if nurses or other health practitioners believed that they could not render assistance as some complex procedure had been involved.  As my correspondent notes the Decision Making Framework requires a nurse to

•          Identify client need/benefit

•          Reflect on scope of practice and nursing practice standards

•          Consider context of practice/organisational support

•          Select appropriate, competent person to perform the activity

In any nursing practice this will often be automatic as nurses go about their daily work they know what is in their scope of practice and what their organization expects and whether it is their task or someone else.  Equally even in a roadside emergency a nurse may quickly identify that action is required and what action may be non controversial (eg the patient has stopped breathing and needs CPR) and know that in the context they are competent and appropriate to do that.

It is hard to see how this sort of framework would actually stop anyone doing what they can at an emergency or accident but if there is that fear, a comment such as ‘Nothing in this document can be construed as preventing a nurse, midwife or other person from taking appropriate action in an emergency’ could be helpful.

The Medical Board of Australia, Good Medical Practice: A Code Of Conduct For Doctors In Australia (March 2014)  says:

2.5          Treatment in emergencies

Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.

That seems like a perfectly reasonable statement of what might be expected by anyone in an emergency.

What has to be reiterated is that people DO NOT get sued for stopping and helping at accidents.  Courts have bent over backwards to ensure that people who go to help are not denied compensation for their own, even foolishly caused injuries and that the original wrongdoer is liable for any extra damage done by a rescuer.   But remember Dr Lowns was liable for not attending an accident (Lowns v Woods (1996) Aust Torts Reports 81-376) and Dr Dekker was guilty of improper professional conduct for not rendering assistance (Medical Board Of Australia v Dekker [2013] WASAT 182).

I’m looking for some assistance with a question which I have been asked many times and that is “why should I join?”

An issue we are facing in my area is that people are attending incidents, wearing RFS PPE, utilising RFS equipment and are not registered members of the Service. They see no reason to join as they have access to the equipment they require and are covered by Workers Compensation through us if/when they are injured.

The only thing I can find which assists me in convincing people to become a bona fide member is RURAL FIRES ACT 1997 – SECT 128 Protection from liability, although they would have protection under the Civil Liabilities Act being ‘good Samaritans’, wouldn’t they?

The second part to my question; if a Brigade considers a person a member of their Brigade, then are they considered a member of the NSWRFS under law?

i.e. if a Brigade Secretary has the name of a person listed on their internal membership list, then is that person actually required to complete a Membership Application form to be added to the register kept by Head Office?

We have had issues here in the past where people consider themselves a member of their Brigade… and therefore are entitled to PPE, to be on a truck and receive training, but they are not listed on the database to which I have access (SAPHR). I can understand where they are coming from but cannot argue for or against without some further information and advice. I see the section in the act which seems to support their argument. Does this leave the RFS open to some scrutiny?

RURAL FIRES ACT 1997 – SECT 20

Members of rural fire brigades

20 Members of rural fire brigades

(1) The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standards.

(2) The members of a rural fire brigade are the persons listed on the register for the brigade kept under this section.

What don’t understand is why are people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ if they ‘are not registered members of the Service’?  But let us look at the law.

The RFS consists of the commissioner and staff and volunteer fire fighters (Rural Fires Act 1997 (NSW) s 8).  Volunteer firefighters are:

(a) officers and other members of rural fire brigades, and

(b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade. (s 8(2)).

There’s the answer, clearly one can be a volunteer fire fighter and a member of the RFS without being a member of a brigade.  As my correspondent has noted, members of a rural fire brigade are ‘the persons listed on the register for the brigade kept under this section’ (s 20(2)).

So why join?  Section 39 says ‘Any function conferred or imposed on the Commissioner by this Act may be exercised by any officer or member of a rural fire brigade or group of rural fire brigades authorised for the purpose by the Commissioner’.  Section 40 also allows the OIC to authorise members to exercise various functions.  A volunteer firefighter who is not a member cannot be authorised to exercise these functions.  They doesn’t mean they can’t fight fires or do things they are directed or asked to do, but it does mean they can’t make the decision to enter premises, close roads etc.  In short it means a firefighter who is not a member is not going to be ‘in charge’ so they need to join if they want to be in a command position.

Section 128 does provide legal protection for a protected person which includes ‘any member of the service’ and ‘any person acting under the authority of the Commissioner’.  If the Commissioner has delegated certain authority to a brigade officer and the non-member is engaged ‘in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of’ that officer then he or she is acting under the authority of the commissioner.

In any event if the person were negligent, any prudent plaintiff would sue the RFS either because the person was acting on behalf of the RFS or the RFS was negligent in allowing the person to be doing whatever it is they were doing when not a member.

I would suggest, however, that both ss 8 and 128 are intended to deal with casual volunteers, people who turn up at an event, perhaps they have useful skills or equipment which the make available to the RFS and which the relevant IC choses to use.  They’re not intended to protect people who regularly attend RFS meetings and training nights but who refuse to join their local Brigade. A person who has not joined has not committed to the RFS service standards, include the code of Ethics, they would not be eligible for ‘Legal Assistance for Volunteers and members of the Staff of the Service’.   A non-member would, presumably not have the necessary qualifications for fire fighting roles (though they may have if they have been a member or have relevant prior learning).

An officer of a brigade, and the RFS, has obligations under the Work Health and Safety Act 2011 (NSW) to protect all workers and that includes volunteers (s 7).  A volunteer is ‘a person who is acting on a voluntary basis’ (s 4).  A person ‘who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade’ is a volunteer and is owed duties under the Act.  The way to manage their risk, if they are intending to regularly partake in RFS activities, is to make sure they are trained, equipped and supervised in accordance with the Act and Service Standards.   That may not be the appropriate response to a casual volunteer who is at a fire event in which case the brigade may issue some PPE and give some direction to the person to contribute what they can usefully contribute but it’s quite different if the person wants to be a regular participant.

That comes back to my question, why are these people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’?  If they want to be trained to use the equipment, to be issued with PPE and attend incidents the officers of the brigade should insist that they join and receive the appropriate training, undergo the appropriate probity checks and commit to the service standards.  If they are not willing to do that they should not be ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ because the very risks that all those things – training, probity checks, commitment to service discipline – are meant to manage are not being managed.  If it turns out they are using their involvement to access private property for nefarious means or they are injured then the consequences for the Service and for those managing the brigade could be severe.

Section 8 and section 128 may well envisage that casual volunteers can and do provide a useful contribution and their risk can be managed in the particular case it does not justify allowing someone to behave as if they are a member when they are not.  So why should someone join? Because they should be told, in no uncertain terms, that they are not allowed to attend incidents, wear RFS PPE, or utilise RFS equipment if they do not.

As for membership a member is a member if there name is on the Brigade Register.  The Register must be maintained in accordance with Service Standard 2.1.3 Brigade Registers. Paragraph 2.2 says “It is each rural fire brigade’s responsibility to provide updated membership details to the Rural Fire Service’s human resource data base, via the Fire Control Centre or the MyRFS website.”  Membership is determined by entering one’s name on the brigade register, not the human resource database.  If the person’s name appears in the register but not the ‘human resource data base’ it does not mean that they are not a member; rather it means the brigade is not performing its duties properly.

I’m looking for some assistance with a question which I have been asked many times and that is “why should I join?”

An issue we are facing in my area is that people are attending incidents, wearing RFS PPE, utilising RFS equipment and are not registered members of the Service. They see no reason to join as they have access to the equipment they require and are covered by Workers Compensation through us if/when they are injured.

The only thing I can find which assists me in convincing people to become a bona fide member is RURAL FIRES ACT 1997 – SECT 128 Protection from liability, although they would have protection under the Civil Liabilities Act being ‘good Samaritans’, wouldn’t they?

The second part to my question; if a Brigade considers a person a member of their Brigade, then are they considered a member of the NSWRFS under law?

i.e. if a Brigade Secretary has the name of a person listed on their internal membership list, then is that person actually required to complete a Membership Application form to be added to the register kept by Head Office?

We have had issues here in the past where people consider themselves a member of their Brigade… and therefore are entitled to PPE, to be on a truck and receive training, but they are not listed on the database to which I have access (SAPHR). I can understand where they are coming from but cannot argue for or against without some further information and advice. I see the section in the act which seems to support their argument. Does this leave the RFS open to some scrutiny?

RURAL FIRES ACT 1997 – SECT 20

Members of rural fire brigades

20 Members of rural fire brigades

(1) The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standards.

(2) The members of a rural fire brigade are the persons listed on the register for the brigade kept under this section.

What don’t understand is why are people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ if they ‘are not registered members of the Service’?  But let us look at the law.

The RFS consists of the commissioner and staff and volunteer fire fighters (Rural Fires Act 1997 (NSW) s 8).  Volunteer firefighters are:

(a) officers and other members of rural fire brigades, and

(b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade. (s 8(2)).

There’s the answer, clearly one can be a volunteer fire fighter and a member of the RFS without being a member of a brigade.  As my correspondent has noted, members of a rural fire brigade are ‘the persons listed on the register for the brigade kept under this section’ (s 20(2)).

So why join?  Section 39 says ‘Any function conferred or imposed on the Commissioner by this Act may be exercised by any officer or member of a rural fire brigade or group of rural fire brigades authorised for the purpose by the Commissioner’.  Section 40 also allows the OIC to authorise members to exercise various functions.  A volunteer firefighter who is not a member cannot be authorised to exercise these functions.  They doesn’t mean they can’t fight fires or do things they are directed or asked to do, but it does mean they can’t make the decision to enter premises, close roads etc.  In short it means a firefighter who is not a member is not going to be ‘in charge’ so they need to join if they want to be in a command position.

Section 128 does provide legal protection for a protected person which includes ‘any member of the service’ and ‘any person acting under the authority of the Commissioner’.  If the Commissioner has delegated certain authority to a brigade officer and the non-member is engaged ‘in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of’ that officer then he or she is acting under the authority of the commissioner.

In any event if the person were negligent, any prudent plaintiff would sue the RFS either because the person was acting on behalf of the RFS or the RFS was negligent in allowing the person to be doing whatever it is they were doing when not a member.

I would suggest, however, that both ss 8 and 128 are intended to deal with casual volunteers, people who turn up at an event, perhaps they have useful skills or equipment which the make available to the RFS and which the relevant IC choses to use.  They’re not intended to protect people who regularly attend RFS meetings and training nights but who refuse to join their local Brigade. A person who has not joined has not committed to the RFS service standards, include the code of Ethics, they would not be eligible for ‘Legal Assistance for Volunteers and members of the Staff of the Service’.   A non-member would, presumably not have the necessary qualifications for fire fighting roles (though they may have if they have been a member or have relevant prior learning).

An officer of a brigade, and the RFS, has obligations under the Work Health and Safety Act 2011 (NSW) to protect all workers and that includes volunteers (s 7).  A volunteer is ‘a person who is acting on a voluntary basis’ (s 4).  A person ‘who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade’ is a volunteer and is owed duties under the Act.  The way to manage their risk, if they are intending to regularly partake in RFS activities, is to make sure they are trained, equipped and supervised in accordance with the Act and Service Standards.   That may not be the appropriate response to a casual volunteer who is at a fire event in which case the brigade may issue some PPE and give some direction to the person to contribute what they can usefully contribute but it’s quite different if the person wants to be a regular participant.

That comes back to my question, why are these people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’?  If they want to be trained to use the equipment, to be issued with PPE and attend incidents the officers of the brigade should insist that they join and receive the appropriate training, undergo the appropriate probity checks and commit to the service standards.  If they are not willing to do that they should not be ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ because the very risks that all those things – training, probity checks, commitment to service discipline – are meant to manage are not being managed.  If it turns out they are using their involvement to access private property for nefarious means or they are injured then the consequences for the Service and for those managing the brigade could be severe.

Section 8 and section 128 may well envisage that casual volunteers can and do provide a useful contribution and their risk can be managed in the particular case it does not justify allowing someone to behave as if they are a member when they are not.  So why should someone join? Because they should be told, in no uncertain terms, that they are not allowed to attend incidents, wear RFS PPE, or utilise RFS equipment if they do not.

As for membership a member is a member if there name is on the Brigade Register.  The Register must be maintained in accordance with Service Standard 2.1.3 Brigade Registers. Paragraph 2.2 says “It is each rural fire brigade’s responsibility to provide updated membership details to the Rural Fire Service’s human resource data base, via the Fire Control Centre or the MyRFS website.”  Membership is determined by entering one’s name on the brigade register, not the human resource database.  If the person’s name appears in the register but not the ‘human resource data base’ it does not mean that they are not a member; rather it means the brigade is not performing its duties properly.

I was hoping you would be able to provide your perspective on a rather complex issue that my brigade is now facing. It is a curly one so requires a bit of back story.

I am the secretary of an RFS brigade in Northern NSW. Several years ago the brigade adopted “The new brigade constitution “as was being pushed by the RFS at the time. This new constitution was a fairly standard one for use around the state but still allowed brigades to make alterations to suit the needs of their specific brigades. A document called “Self Help Guide to Developing Your Brigade Constitutions” was also distributed to outline options available for brigades to customise their constitution with a number of “mandatory” and “optional” clauses but this document also noted that “Brigades must be given the opportunity to tailor their constitution individually if they choose.”

For the most part the brigade decided on options exactly as per suggested in the self help guide, however we also added a few additional clauses to meet our specific needs. One in particular is now causing trouble. For the election of field and administrative officers the self help guide gave the brigade a choice of either a first past the post, optional preferential or full preferential option. For all admin officers and for field officer elections with more then one nominee the brigade decided on first past the post, however we also added in an additional clause that for field officer positions with only one nominee they must get support from 50% + 1 of the votes cast, in order to ensure that the particular officer has the support of the majority of the brigade. This change was signed off at the time by the district manager (as required by the constitution and service standards) and our constitution was formalised and has been running relatively smoothly since then until our AGM last Sunday.

At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid and that there is a push from state headquarters to get rid of such provisions. We told them that our constitution has previously been signed off by both the brigade and the district as required and we had no intention of changing that particular provision. They advised that our constitution was not valid and if we did not submit a constitution that met their demands within 3 months that our constitution would be suspended and that if we still refused to comply after this a new constitution would be forced upon us by the district. This is an issue the brigade feels strongly about and it has caused considerable anger within the brigade as we were of the understanding that changes can’t be made to constitutions without the support of the brigade. As you can imagine it has also raised a number of questions that the brigade can find no clear answer on and we were hoping you could provide some insight. In particular:

1. Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?
2. Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?
3. What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?
4. Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?
5. Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?
6. If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?
7. In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?

We would greatly appreciate your thoughts on these and any other issues you think are relevant.

That is, indeed, a curly question.  The issue of constitutions for NSW RFS brigades is dealt with in the Rural Fires Regulation 2013 (NSW) reg 4.  That regulation says ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for’ amongst other things, ‘the voting rights of members of the brigade’.  Who or what is the responsible authority varies, if the brigade was formed by a local authority (under the Rural Fires Act 1997 (NSW) s 15) then the local authority is the responsible authority.  If the brigade was formed by two or more local authorities (Rural Fires Act 1997 (NSW) s 15(2)) then the responsible authority is the authority nominated in writing by the local authorities that formed the brigade.  If the brigade is formed by the Commissioner (Rural Fires Act 1997 (NSW) s 15(4)) then the responsible authority is the Commissioner (Rural Fires Regulation 2013 (NSW) reg 3, definition of ‘responsible authority’).

The regulation goes on to say ‘The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’ (Reg 4(2)).

Service standards are issued by the Commissioner (Rural Fires Act 1997 (NSW) s 13).  Service standards can deal with a number of things including ‘brigade management’ (s 13(2)(i)).   Section 13 does not say that Service Standards are binding on brigades but other sections do; for example:

• ‘The body or person that forms a rural fire brigade is … to appoint as the officers for the brigade those persons selected, in accordance with the Service Standards’ (s 18);
•  ‘The officers of the rural fire brigades forming a group of rural fire brigades are those persons selected, in accordance with the Service Standards…’ (s 19(2));
• ‘The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standard …’ (s 20(1)); and
•  ‘A council must take care of and maintain in the condition required by the Service Standards any fire fighting equipment vested in it…’ ( s 119(5)).

Note the difference with regulation 4(2).  The regulation does not say that brigades must review their constitutions and amend them to bring them in line with the service standard, it says they are ‘to take into consideration any relevant Service Standards’ (Reg 4(2)).  One can take something into consideration but still decide to do something differently.    A brigade formed by the Commissioner must have a constitution that is in the approved form so if the constitution did not match the service standard would have to change it to comply.  A brigade formed by a local authority need only consider the service standard but may chose not to apply it and could not if it was contrary to the form of constitution approved by the local authority.

NSW Rural Fire Service, Service Standard 2.1.2 ‘Brigade Constitution’ (http://www.rfs.nsw.gov.au/file_system/attachments/State08/Attachment_20131114_481D92EB.pdf) was issued on 8 August 2013.   That standard sets out the ‘The Brigade Constitution for NSW Rural Fire Brigades’ and says that Brigades

… must review their constitutions with a view to preparing and adopting a constitution that is consistent with this Service Standard and the Self-Help Help Guide to Developing Your New Brigade Constitution.

2.2 In preparing their constitution, brigades must complete the New Brigade Constitution by:

(a) selecting or drafting those clauses of the New Brigade Constitution that must be completed. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution; and

(b) adding any of the optional clauses to the New Brigade Constitution. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution.

Remember however that a brigade constitution must ‘be in a form approved by the responsible authority’ and the responsible authority is the commissioner only with respect to brigades formed by the Commissioner, not those formed by local authorities (councils).

Let us now return to the questions.  Remember we are told that ‘At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid’.

 1.       Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?

Yes the constitution remains in force.  Even if there has been a change in the service standard from when the constitution was originally written that does not invalidate the constitution as it is.  Regulation 4(2) says “The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’.  It does not say a change to the Standards invalidates the constitution.  Even if by some reason the constitution was no longer effective that would not affect decisions made when it was in effect.

 2.         Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?

No, there are no provisions for the ‘suspension’ of the Constitution

 3.         What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?

There are no provisions for the ‘suspension’ of the Constitution.

4.         Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?

That’s an interesting question as it’s not at all clear what value the constitution is. The brigades are created by the relevant authority, not the members so the constitution is unlike the constitution of an entity incorporated under the Associations Incorporation Act 2009 (NSW).   Regulation 4(2) says that ‘The constitution for a rural fire brigade is to be in a form approved..’ but it doesn’t actually say that a brigade must have a constitution!

 5.         Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?

Yes, if the brigade was formed by the Commissioner under s 15(2) then it’s constitution must be in a form approved by the Commissioner so the Commissioner could change the standard constitution (set out in the Service Standard) and require brigades to comply with that but that’s only applicable to brigades formed by the Commissioner.

6.         If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?

There is nothing in the regulation, the Service Standard or the Self Help Guide that says that any region approval is required.  Even if a change did require approval, failure to grant that approval would simply mean the change did not occur, so the constitution would be as it was before the attempted change.

 7.         In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?

Brigades are created by a local authority or by the Commissioner, and may be disbanded by the authority that created them (ss 15 and 16).  They are not legal entities in their own right.  The RFS is made up of the Commissioner and staff and volunteer rural fire fighters, not the brigades.  Legal action would not be brought against a brigade or the RFS but against the Crown in right of NSW (Crown Proceedings Act 1988 (NSW); Government Sector Employment Act 2013 (NSW)).  As noted above, it’s not at all clear why brigades need constitutions, rather than rules or standing orders, nor what happens if they don’t have one.

That the long answer

The short answer is that, assuming the brigade was formed by the Commissioner then the Constitution has to be in the form set out in Service Standard 2.1.2.  That standard allows room for individual choice and the Self Help guide says ‘Brigades must be given the opportunity to tailor their constitution individually if they choose’.   If the constitution complies with the Service Standard then any objection to clauses that the brigade has adopted where they were free to make those choices is irrelevant.  If the Commissioner wanted to change that he would need to reissue the service standard and brigades, on their annual review would have to ‘consider’ whether to change it but given they have to comply with the prescribed form they would have to change their constitution.  A brigade not formed by the Commissioner could ‘consider’ the constitution prescribed by the Commissioner and then decide whether or not to make the change.

I was hoping you would be able to provide your perspective on a rather complex issue that my brigade is now facing. It is a curly one so requires a bit of back story.

I am the secretary of an RFS brigade in Northern NSW. Several years ago the brigade adopted “The new brigade constitution “as was being pushed by the RFS at the time. This new constitution was a fairly standard one for use around the state but still allowed brigades to make alterations to suit the needs of their specific brigades. A document called “Self Help Guide to Developing Your Brigade Constitutions” was also distributed to outline options available for brigades to customise their constitution with a number of “mandatory” and “optional” clauses but this document also noted that “Brigades must be given the opportunity to tailor their constitution individually if they choose.”

For the most part the brigade decided on options exactly as per suggested in the self help guide, however we also added a few additional clauses to meet our specific needs. One in particular is now causing trouble. For the election of field and administrative officers the self help guide gave the brigade a choice of either a first past the post, optional preferential or full preferential option. For all admin officers and for field officer elections with more then one nominee the brigade decided on first past the post, however we also added in an additional clause that for field officer positions with only one nominee they must get support from 50% + 1 of the votes cast, in order to ensure that the particular officer has the support of the majority of the brigade. This change was signed off at the time by the district manager (as required by the constitution and service standards) and our constitution was formalised and has been running relatively smoothly since then until our AGM last Sunday.

At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid and that there is a push from state headquarters to get rid of such provisions. We told them that our constitution has previously been signed off by both the brigade and the district as required and we had no intention of changing that particular provision. They advised that our constitution was not valid and if we did not submit a constitution that met their demands within 3 months that our constitution would be suspended and that if we still refused to comply after this a new constitution would be forced upon us by the district. This is an issue the brigade feels strongly about and it has caused considerable anger within the brigade as we were of the understanding that changes can’t be made to constitutions without the support of the brigade. As you can imagine it has also raised a number of questions that the brigade can find no clear answer on and we were hoping you could provide some insight. In particular:

1. Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?
2. Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?
3. What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?
4. Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?
5. Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?
6. If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?
7. In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?

We would greatly appreciate your thoughts on these and any other issues you think are relevant.

That is, indeed, a curly question.  The issue of constitutions for NSW RFS brigades is dealt with in the Rural Fires Regulation 2013 (NSW) reg 4.  That regulation says ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for’ amongst other things, ‘the voting rights of members of the brigade’.  Who or what is the responsible authority varies, if the brigade was formed by a local authority (under the Rural Fires Act 1997 (NSW) s 15) then the local authority is the responsible authority.  If the brigade was formed by two or more local authorities (Rural Fires Act 1997 (NSW) s 15(2)) then the responsible authority is the authority nominated in writing by the local authorities that formed the brigade.  If the brigade is formed by the Commissioner (Rural Fires Act 1997 (NSW) s 15(4)) then the responsible authority is the Commissioner (Rural Fires Regulation 2013 (NSW) reg 3, definition of ‘responsible authority’).

The regulation goes on to say ‘The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’ (Reg 4(2)).

Service standards are issued by the Commissioner (Rural Fires Act 1997 (NSW) s 13).  Service standards can deal with a number of things including ‘brigade management’ (s 13(2)(i)).   Section 13 does not say that Service Standards are binding on brigades but other sections do; for example:

• ‘The body or person that forms a rural fire brigade is … to appoint as the officers for the brigade those persons selected, in accordance with the Service Standards’ (s 18);
•  ‘The officers of the rural fire brigades forming a group of rural fire brigades are those persons selected, in accordance with the Service Standards…’ (s 19(2));
• ‘The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standard …’ (s 20(1)); and
•  ‘A council must take care of and maintain in the condition required by the Service Standards any fire fighting equipment vested in it…’ ( s 119(5)).

Note the difference with regulation 4(2).  The regulation does not say that brigades must review their constitutions and amend them to bring them in line with the service standard, it says they are ‘to take into consideration any relevant Service Standards’ (Reg 4(2)).  One can take something into consideration but still decide to do something differently.    A brigade formed by the Commissioner must have a constitution that is in the approved form so if the constitution did not match the service standard would have to change it to comply.  A brigade formed by a local authority need only consider the service standard but may chose not to apply it and could not if it was contrary to the form of constitution approved by the local authority.

NSW Rural Fire Service, Service Standard 2.1.2 ‘Brigade Constitution’ (http://www.rfs.nsw.gov.au/file_system/attachments/State08/Attachment_20131114_481D92EB.pdf) was issued on 8 August 2013.   That standard sets out the ‘The Brigade Constitution for NSW Rural Fire Brigades’ and says that Brigades

… must review their constitutions with a view to preparing and adopting a constitution that is consistent with this Service Standard and the Self-Help Help Guide to Developing Your New Brigade Constitution.

2.2 In preparing their constitution, brigades must complete the New Brigade Constitution by:

(a) selecting or drafting those clauses of the New Brigade Constitution that must be completed. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution; and

(b) adding any of the optional clauses to the New Brigade Constitution. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution.

Remember however that a brigade constitution must ‘be in a form approved by the responsible authority’ and the responsible authority is the commissioner only with respect to brigades formed by the Commissioner, not those formed by local authorities (councils).

Let us now return to the questions.  Remember we are told that ‘At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid’.

 1.       Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?

Yes the constitution remains in force.  Even if there has been a change in the service standard from when the constitution was originally written that does not invalidate the constitution as it is.  Regulation 4(2) says “The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’.  It does not say a change to the Standards invalidates the constitution.  Even if by some reason the constitution was no longer effective that would not affect decisions made when it was in effect.

 2.         Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?

No, there are no provisions for the ‘suspension’ of the Constitution

 3.         What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?

There are no provisions for the ‘suspension’ of the Constitution.

4.         Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?

That’s an interesting question as it’s not at all clear what value the constitution is. The brigades are created by the relevant authority, not the members so the constitution is unlike the constitution of an entity incorporated under the Associations Incorporation Act 2009 (NSW).   Regulation 4(2) says that ‘The constitution for a rural fire brigade is to be in a form approved..’ but it doesn’t actually say that a brigade must have a constitution!

 5.         Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?

Yes, if the brigade was formed by the Commissioner under s 15(2) then it’s constitution must be in a form approved by the Commissioner so the Commissioner could change the standard constitution (set out in the Service Standard) and require brigades to comply with that but that’s only applicable to brigades formed by the Commissioner.

6.         If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?

There is nothing in the regulation, the Service Standard or the Self Help Guide that says that any region approval is required.  Even if a change did require approval, failure to grant that approval would simply mean the change did not occur, so the constitution would be as it was before the attempted change.

 7.         In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?

Brigades are created by a local authority or by the Commissioner, and may be disbanded by the authority that created them (ss 15 and 16).  They are not legal entities in their own right.  The RFS is made up of the Commissioner and staff and volunteer rural fire fighters, not the brigades.  Legal action would not be brought against a brigade or the RFS but against the Crown in right of NSW (Crown Proceedings Act 1988 (NSW); Government Sector Employment Act 2013 (NSW)).  As noted above, it’s not at all clear why brigades need constitutions, rather than rules or standing orders, nor what happens if they don’t have one.

That the long answer

The short answer is that, assuming the brigade was formed by the Commissioner then the Constitution has to be in the form set out in Service Standard 2.1.2.  That standard allows room for individual choice and the Self Help guide says ‘Brigades must be given the opportunity to tailor their constitution individually if they choose’.   If the constitution complies with the Service Standard then any objection to clauses that the brigade has adopted where they were free to make those choices is irrelevant.  If the Commissioner wanted to change that he would need to reissue the service standard and brigades, on their annual review would have to ‘consider’ whether to change it but given they have to comply with the prescribed form they would have to change their constitution.  A brigade not formed by the Commissioner could ‘consider’ the constitution prescribed by the Commissioner and then decide whether or not to make the change.

I was asked about installing red/blue lights on a CFA unit back in November 2012 (see Red/blue lights on CFA Slip on unit https://emergencylaw.wordpress.com/2012/11/16/redblue-lights-on-cfa-slip-on-unit/). I have now been asked

In relation to an emergency vehicle in Victoria, it needs to be a “Fire Service Unit”under the control of the Country Fire Authority.

My question  - Is the ute with a slip-on unit deemed to be a fire service unit under the control of the CFA?

The problem here is that the term ‘fire service unit’ is not defined; even though the term is used in the Congestion Levy Act 2005 (Vic) s 19, the Eastlink Project Regulations 2008 (Vic) reg 4; the Melbourne City Link Regulations 2009 (Vic) reg 8 and the Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3, definition of ‘emergency vehicle’.

With no statutory definition it’s a matter of giving the words their ordinary meaning.  The original question said “Our small CFA rural brigade owns a “slip-on” firefighting unit comprising water tank, pump and hoses. This can be loaded onto a volunteer’s ute for fire suppression during the fire season.”  Further, in that post I said: ‘We are told that the unit in question is being operated by CFA volunteers, that the slip on unit is owned by the CFA brigade but the ute is privately owned.’

In summary the slip on unit is owned by the CFA, it is placed on a ute that is operated by a CFA volunteer and is then used for fire suppression and ‘has been in use for many years, and was particularly useful on Black Saturday and its aftermath’.

Is that a fire service unit? There would be no doubt, I think, that the regulations are intended to apply to a traditional fire appliance owned and operated by the CFA or the MFB – they would be a fire service unit or nothing is.   Is the critical issue that they are owned by the service?  I don’t think so as the definition of an emergency vehicle refers to a unit that is ‘under the control of’ one of the services.  If a fire service unit had to be owned by them it would be saying, in effect, the vehicle has to be ‘owned and under the control’ of the MFB or CFA.   That would be unnecessary as it would mean that a fire appliance that has been stolen, so it is owned by but not under the control of the CFA, is not a fire service unit, but I’m sure that is not the problem they are trying to deal with (ie car thieves enjoying immunity from red lights).

The only sensible interpretation of ‘fire service unit’ has to be a unit used by the fire service for its purposes but they want to have a nice generic term to catch the various vehicles the fire services use.  One wouldn’t want to say ‘tender’ or ‘pumper’ because that would exclude something else.  Even ‘fire appliance’ may be unnecessarily limiting.   ‘Fire service unit’ must however be something more than any vehicle otherwise the regulation could say that an emergency vehicle is a ‘vehicle’ under the control of one of the fire fighting agencies.

So it’s more than any vehicle, and less than ‘any fire appliance owned by …’.   I would think that any court that had to decide the issue would look at the vehicle and its use and ask was it being used operationally.  Regardless of what is not a ‘fire service unit’ I would think it must be the case that a CFA slip on unit, attached to a vehicle being operated by a CFA volunteer during fire fighting and mop up operations is a fire service unit.

According to the Oxford Dictionaries, ‘deem’ means ‘Regard or consider in a specified way’ (http://www.oxforddictionaries.com/definition/english/deem?q=deem).  When something is deemed to be something else we are treating it as if it is that other thing when it is not.  For example in legislation dealing with animals it might say ‘for the purpose of this Act ‘dog’ includes ‘cat’’ so one could say a cat is deemed to be a dog when clearly a cat is not a dog.

I do not think a a slip-on unit would be ‘deemed to be a fire service unit under the control of the CFA’ I think it is a fire service unit under the control of the CFA.

I was asked about installing red/blue lights on a CFA unit back in November 2012 (see Red/blue lights on CFA Slip on unit http://emergencylaw.wordpress.com/2012/11/16/redblue-lights-on-cfa-slip-on-unit/#comments). I have now been asked

In relation to an emergency vehicle in Victoria, it needs to be a “Fire Service Unit”under the control of the Country Fire Authority.

My question  - Is the ute with a slip-on unit deemed to be a fire service unit under the control of the CFA?

The problem here is that the term ‘fire service unit’ is not defined; even though the term is used in the Congestion Levy Act 2005 (Vic) s 19, the Eastlink Project Regulations 2008 (Vic) reg 4; the Melbourne City Link Regulations 2009 (Vic) reg 8 and the Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 3, definition of ‘emergency vehicle’.

With no statutory definition it’s a matter of giving the words their ordinary meaning.  The original question said “Our small CFA rural brigade owns a “slip-on” firefighting unit comprising water tank, pump and hoses. This can be loaded onto a volunteer’s ute for fire suppression during the fire season.”  Further, in that post I said: ‘We are told that the unit in question is being operated by CFA volunteers, that the slip on unit is owned by the CFA brigade but the ute is privately owned.’

In summary the slip on unit is owned by the CFA, it is placed on a ute that is operated by a CFA volunteer and is then used for fire suppression and ‘has been in use for many years, and was particularly useful on Black Saturday and its aftermath’.

Is that a fire service unit? There would be no doubt, I think, that the regulations are intended to apply to a traditional fire appliance owned and operated by the CFA or the MFB – they would be a fire service unit or nothing is.   Is the critical issue that they are owned by the service?  I don’t think so as the definition of an emergency vehicle refers to a unit that is ‘under the control of’ one of the services.  If a fire service unit had to be owned by them it would be saying, in effect, the vehicle has to be ‘owned and under the control’ of the MFB or CFA.   That would be unnecessary as it would mean that a fire appliance that has been stolen, so it is owned by but not under the control of the CFA, is not a fire service unit, but I’m sure that is not the problem they are trying to deal with (ie car thieves enjoying immunity from red lights).

The only sensible interpretation of ‘fire service unit’ has to be a unit used by the fire service for its purposes but they want to have a nice generic term to catch the various vehicles the fire services use.  One wouldn’t want to say ‘tender’ or ‘pumper’ because that would exclude something else.  Even ‘fire appliance’ may be unnecessarily limiting.   ‘Fire service unit’ must however be something more than any vehicle otherwise the regulation could say that an emergency vehicle is a ‘vehicle’ under the control of one of the fire fighting agencies.

So it’s more than any vehicle, and less than ‘any fire appliance owned by …’.   I would think that any court that had to decide the issue would look at the vehicle and its use and ask was it being used operationally.  Regardless of what is not a ‘fire service unit’ I would think it must be the case that a CFA slip on unit, attached to a vehicle being operated by a CFA volunteer during fire fighting and mop up operations is a fire service unit.

According to the Oxford Dictionaries, ‘deem’ means ‘Regard or consider in a specified way’ (http://www.oxforddictionaries.com/definition/english/deem?q=deem).  When something is deemed to be something else we are treating it as if it is that other thing when it is not.  For example in legislation dealing with animals it might say ‘for the purpose of this Act ‘dog’ includes ‘cat’’ so one could say a cat is deemed to be a dog when clearly a cat is not a dog.

I do not think a a slip-on unit would be ‘deemed to be a fire service unit under the control of the CFA’ I think it is a fire service unit under the control of the CFA.

“Blue Mountains bushfire victims to launch class action” is the heading of a story appearing in today’s Blue Mountains Gazette (20 May 2014). According to the report “Victims of the October 2013 Springwood, Winmalee and Yellow Rock bushfires are launching a class action against power company Endeavour Energy, worth an estimated $200 million”.  Further details of the action will, we’re told, be released and reported tomorrow (and see now B.C Lewis and Jennie Curtin ‘Blue Mountains bushfire class action lodged against Endeavour Energy’ Blue Mountains Gazette, 21 May 2014).

Pending the release of the details of the proposed class action, it is worth recalling that the ABC program ‘Four Corners – Fire in the Wire’ (Monday 28 October 2013) revealed the extent to which electrical assets have caused devastating bushfires in Australia. In the pre-show advertising they said “Four Corners examines the evidence gathered over four decades documenting the causes of our biggest fires. The figures will shock you.”

What else may be shocking are the legal consequences, or more importantly, the lack of consequences that flow from fires that have been caused by electrical assets. Research I conducted with my colleague, Professor Steve Dovers, and funded by the Bushfire Cooperative Research Centre, looked at civil liability arising from bushfires. Despite a belief that litigation is a modern phenomenon, people have been suing over bushfires since the 1860s. Originally the defendants were landowners who were being sued for negligently starting or failing to control a fire. From 1884 Railway operators began to be seen as defendants as steam trains were a frequent source of ignition. From 1977 we began to see electrical authorities as defendants and, from 2005, actions have been run (so far unsuccessfully) against fire services and land management agencies (see Eburn, M and Dovers, S., ‘Australian wildfire litigation’ (2012) 21 International Journal of Wildland Fire 488–497).

The growth of the world-wide-web means it is now possible to find details of cases that are started, came before the court for some procedural issue but ultimately settled. With access to that material we can see that electrical authorities were sued following Victoria’s devastating grass fires of 1977 and the 1983 Ash Wednesday fires in South Australia (see Wollington v State Electricity Commission [1979] VR 115; Wollington v State Electricity Commission [1980] VR 91; Ballantyne v ETSA [1993] SASC 4275; May v ETSA [1993] SASC 4149; Seas Sapfor Forests v ETSA [1993] SASC 4004; Seas Sapfor v ETSA [1996] SASC 5718; SA Electricity v Union Insurance (Unreported, Supreme Court of South Australia, Perry J 9 July 1997); Telfer v Flinders Council; ETSA 3rd party [1999] SASC 42; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 117; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 142. A detailed, annotated table of post-bushfire cases, including those against the electrical authorities can be found on the Bushfire CRC website).

Following the 2009 Black Saturday fires there has been claims against the electrical distributors and most of them have also settled (see Place v Powercor Aust Ltd [2013] VSC 6; Matthews v SPI Electricity (Ruling No 16) [2013] VSC 74; Mercieca v SPI Electricity [2012] VSC 204; Thomas v Powercor Australia [2011] VSC 614 and David Chen, ‘Court Approves $40m Black Saturday fire payout’, ABC Online, 5 December 2011.) In the ongoing class action, Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd , the electricity authorities have joined various state agencies (in particular the Country Fire Authority and Victoria Police) to try and diffuse the liability so that makes that case more complex and may be one factor that helps explain why that case has not settled.

Cases settle for many reasons but at some level the parties have to decide that settling the matter is in their best interests. For a defendant a settlement can be in its best interests if it believes that the costs of settling the matter are likely to be less than the costs of running the matter before a court. This will certainly be true if the defendant believes they it does not have a legal defence. A defendant may also not want to run a matter before a court because it does not want a definitive ruling on whether or not it is legally liable. A settlement does not determine legal rights in the way a judicial determination does and the terms of settlement will often say that the settlement is made without admitting that the defendant is legally liable. Settling a case will also remove an unwanted distraction and relieve staff from the need to prepare for, and go to, court and will, instead, allow them to focus on the defendant’s core business – in this context the delivery of electricity.

What we do know is that, notwithstanding these fires and these claims, the defendant electrical authorities are not making a loss. SP Aus Net’s electricity distribution business made a net profit after tax of:

• $157.5 million in 2008;
• $146.9 million in 2009;
• $209.0 million in 2010;
• $252.9 million in 2011; and
• $255.0 million in 2012.

In terms of liability, the 2011 annual report (at p 122) notes that “SP AusNet has liability insurance which specifically provides cover for bushfire liability.” It follows that any damages payable from the current class action will, to the extent of their insurance cover, be met by their insurer rather than from SP Aus Net’s income and profits. In 2009 and 2010 the provision for uninsured losses was a mere $1.4 and $1.6 million respectively, and no separate allowance is reported in the 2011 annual report. It is not known who SP’s Insurers are but there has not been any public failure of any insurance company following the Black Saturday fires.

What we can infer is that notwithstanding the catastrophic destruction brought in 2009, neither the electrical authorities nor their insurers, are making a loss; they continue to do their work and return a profit for their shareholders. Causing a bushfire, even a fatal bushfire, appears to be part of the costs of running an electricity business in Australia, or at least Victoria.

In ‘Four Corners’ the ABC asked “why have public officials disregarded the lessons of the past that may have prevented our most disastrous fires and we look at the factors holding back changes that might well protect the community in the future?” The answer may be that this cost is a cost the community is prepared to pay.

Following the Royal Commission into the 2009 Victorian bushfires it was recommended (Recommendations 27 and 32) that overhead power lines be buried and also electricity authorities reset their power grid to disconnect the power after a single failure, rather than after three. The authorities had said that automatic circuit reclosers would recharge a power line after a fault in case it was a minor fault that had fixed itself. This process would ensure continued supply to the company’s customers. If the line failed three times then the power was shut off until it could be inspected and the problem solved.

In making its recommendation the Royal Commission noted (Final Report, Volume II, Chapter 4, p 171):

The need for a policy change in relation to ACR [automatic circuit recloser] suppression is graphically illustrated by the Kilmore East fire, which started because an ACR reclosed when there was a permanent fault on the line. That ACR was left in service in an effort to improve the reliability of supply on a SWER [Single Wire Earth Return] line that served just 20 customers, yet the resulting fire claimed the lives of 119 people.

With respect to their recommendation, the Royal Commission said (at p 172):

To the extent that there is a decrease in the reliability of supply to SWER line customers, there is a corresponding benefit to those same customers in that the likelihood of fire starting in their area will be reduced.

An implementation task force was established to look into the recommendations from the Royal Commission. With respect to the recommendation to bury powerlines, the Powerline Bushfire Safety Taskforce (pp 8-11) reported that the community would not accept the increased electricity charges that would be required to meet that obligation.

As for the suggestion to reduce the reliability of supply by disabling automatic circuit reclosers, the Taskforce reported (p 70-71) that again the community would not tolerate losing power on high fire danger days.
Aware of the risk posed by electrical supply assets, the South Australian power supply company, ETSA, disconnected the power supply on a particularly bad fire weather day in January 2012 but this decision was not without criticism (‘Power cuts as state endures scorcher’ ABC News, 2 January 2012; ‘ETSA defends decision to cut power’ ABC News, 3 January 2012). An ETSA spokesperson is quoted as saying:

“We recognise there is inconvenience but we recognise that at the end of the day we have … to make these decisions and we have to make them in real time in emerging circumstances to protect lives and property.

He says the decision to cut power was the right one.”

ETSA may have believed it was doing the right thing when it disconnected the power but to reduce the risk to human life, regardless of the inconvenience, but even that is not without controversy. In research published in the Medical Journal of Australia Richard Broome and Wayne Smith report on their study of the likely public health effects of cutting off the power (Broome R, and Smith, W., ‘The definite health risks from cutting power outweigh possible bushfire prevention benefits’ (197(8) Medical Journal of Australia 440-441; see also my earlier blog-post: ‘Electricity authorities, out of the frying pan and into the fire?‘ (October 19, 2012)).  Broome and Smith argue that ensuring power supply is necessary to maintain air conditioning as well as life sustaining equipment:

An important omission from the health and safety arguments … is a discussion of the role of air conditioning in preventing heat-related illness. Days of high fire danger are generally very hot and therefore likely to be associated with high rates of heat-related morbidity and mortality. For example, the Victorian government estimated that the 7-day heatwave preceding the February 2009 bushfires caused 374 deaths, a 62% increase above the baseline mortality rate…

Deaths from heat outweigh direct deaths from catastrophic bushfires … So from a public health perspective, power cuts are more likely to lead to adverse health outcomes than maintaining power on potentially catastrophic bushfire days…

What can be inferred from this discussion is:

1. Fires are regularly started by electrical assets.
2. So far, legal claims for compensation against the electrical authorities have settled out of court which suggests that the authorities see the cost of paying out as more economic than the cost of defending these actions; and they’re still making a profit.
3. Generally the community is not willing to tolerate the increased electricity costs, and loss of reliability that would be required to decrease the risk of electrically caused fires. And if Broome and Smith are correct, reducing the reliability of the power supply may cause more deaths from heat related events than are killed from the impact of fire.

It appears that the risk of fires such as those seen on Ash Wednesday (1983), Black Saturday (2009) and now Sydney 2013 is the price we the community pay, and are prepared to pay, to have a relatively cheap, highly reliable electrical supply.

“Blue Mountains bushfire victims to launch class action” is the heading of a story appearing in today’s Blue Mountains Gazette (20 May 2014). According to the report “Victims of the October 2013 Springwood, Winmalee and Yellow Rock bushfires are launching a class action against power company Endeavour Energy, worth an estimated $200 million”.  Further details of the action will, we’re told, be released and reported tomorrow.

Pending the release of the details of the proposed class action, it is worth recalling that the ABC program ‘Four Corners – Fire in the Wire’ (Monday 28 October 2013) revealed the extent to which electrical assets have caused devastating bushfires in Australia. In the pre-show advertising they said “Four Corners examines the evidence gathered over four decades documenting the causes of our biggest fires. The figures will shock you.”

What else may be shocking are the legal consequences, or more importantly, the lack of consequences that flow from fires that have been caused by electrical assets. Research I conducted with my colleague, Professor Steve Dovers, and funded by the Bushfire Cooperative Research Centre, looked at civil liability arising from bushfires. Despite a belief that litigation is a modern phenomenon, people have been suing over bushfires since the 1860s. Originally the defendants were landowners who were being sued for negligently starting or failing to control a fire. From 1884 Railway operators began to be seen as defendants as steam trains were a frequent source of ignition. From 1977 we began to see electrical authorities as defendants and, from 2005, actions have been run (so far unsuccessfully) against fire services and land management agencies (see Eburn, M and Dovers, S., ‘Australian wildfire litigation’ (2012) 21 International Journal of Wildland Fire 488–497).

The growth of the world-wide-web means it is now possible to find details of cases that are started, came before the court for some procedural issue but ultimately settled. With access to that material we can see that electrical authorities were sued following Victoria’s devastating grass fires of 1977 and the 1983 Ash Wednesday fires in South Australia (see Wollington v State Electricity Commission [1979] VR 115; Wollington v State Electricity Commission [1980] VR 91; Ballantyne v ETSA [1993] SASC 4275; May v ETSA [1993] SASC 4149; Seas Sapfor Forests v ETSA [1993] SASC 4004; Seas Sapfor v ETSA [1996] SASC 5718; SA Electricity v Union Insurance (Unreported, Supreme Court of South Australia, Perry J 9 July 1997); Telfer v Flinders Council; ETSA 3rd party [1999] SASC 42; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 117; Telfer v Flinders Council; ETSA 3rd party [1999] SASC 142. A detailed, annotated table of post-bushfire cases, including those against the electrical authorities can be found on the Bushfire CRC website).

Following the 2009 Black Saturday fires there has been claims against the electrical distributors and most of them have also settled (see Place v Powercor Aust Ltd [2013] VSC 6; Matthews v SPI Electricity (Ruling No 16) [2013] VSC 74; Mercieca v SPI Electricity [2012] VSC 204; Thomas v Powercor Australia [2011] VSC 614 and David Chen, ‘Court Approves $40m Black Saturday fire payout’, ABC Online, 5 December 2011.) In the ongoing class action, Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd , the electricity authorities have joined various state agencies (in particular the Country Fire Authority and Victoria Police) to try and diffuse the liability so that makes that case more complex and may be one factor that helps explain why that case has not settled.

Cases settle for many reasons but at some level the parties have to decide that settling the matter is in their best interests. For a defendant a settlement can be in its best interests if it believes that the costs of settling the matter are likely to be less than the costs of running the matter before a court. This will certainly be true if the defendant believes they it does not have a legal defence. A defendant may also not want to run a matter before a court because it does not want a definitive ruling on whether or not it is legally liable. A settlement does not determine legal rights in the way a judicial determination does and the terms of settlement will often say that the settlement is made without admitting that the defendant is legally liable. Settling a case will also remove an unwanted distraction and relieve staff from the need to prepare for, and go to, court and will, instead, allow them to focus on the defendant’s core business – in this context the delivery of electricity.

What we do know is that, notwithstanding these fires and these claims, the defendant electrical authorities are not making a loss. SP Aus Net’s electricity distribution business made a net profit after tax of:

• $157.5 million in 2008;
• $146.9 million in 2009;
• $209.0 million in 2010;
• $252.9 million in 2011; and
• $255.0 million in 2012.

In terms of liability, the 2011 annual report (at p 122) notes that “SP AusNet has liability insurance which specifically provides cover for bushfire liability.” It follows that any damages payable from the current class action will, to the extent of their insurance cover, be met by their insurer rather than from SP Aus Net’s income and profits. In 2009 and 2010 the provision for uninsured losses was a mere $1.4 and $1.6 million respectively, and no separate allowance is reported in the 2011 annual report. It is not known who SP’s Insurers are but there has not been any public failure of any insurance company following the Black Saturday fires.

What we can infer is that notwithstanding the catastrophic destruction brought in 2009, neither the electrical authorities nor their insurers, are making a loss; they continue to do their work and return a profit for their shareholders. Causing a bushfire, even a fatal bushfire, appears to be part of the costs of running an electricity business in Australia, or at least Victoria.

In ‘Four Corners’ the ABC asked “why have public officials disregarded the lessons of the past that may have prevented our most disastrous fires and we look at the factors holding back changes that might well protect the community in the future?” The answer may be that this cost is a cost the community is prepared to pay.

Following the Royal Commission into the 2009 Victorian bushfires it was recommended (Recommendations 27 and 32) that overhead power lines be buried and also electricity authorities reset their power grid to disconnect the power after a single failure, rather than after three. The authorities had said that automatic circuit reclosers would recharge a power line after a fault in case it was a minor fault that had fixed itself. This process would ensure continued supply to the company’s customers. If the line failed three times then the power was shut off until it could be inspected and the problem solved.

In making its recommendation the Royal Commission noted (Final Report, Volume II, Chapter 4, p 171):

The need for a policy change in relation to ACR [automatic circuit recloser] suppression is graphically illustrated by the Kilmore East fire, which started because an ACR reclosed when there was a permanent fault on the line. That ACR was left in service in an effort to improve the reliability of supply on a SWER [Single Wire Earth Return] line that served just 20 customers, yet the resulting fire claimed the lives of 119 people.

With respect to their recommendation, the Royal Commission said (at p 172):

To the extent that there is a decrease in the reliability of supply to SWER line customers, there is a corresponding benefit to those same customers in that the likelihood of fire starting in their area will be reduced.

An implementation task force was established to look into the recommendations from the Royal Commission. With respect to the recommendation to bury powerlines, the Powerline Bushfire Safety Taskforce (pp 8-11) reported that the community would not accept the increased electricity charges that would be required to meet that obligation.

As for the suggestion to reduce the reliability of supply by disabling automatic circuit reclosers, the Taskforce reported (p 70-71) that again the community would not tolerate losing power on high fire danger days.
Aware of the risk posed by electrical supply assets, the South Australian power supply company, ETSA, disconnected the power supply on a particularly bad fire weather day in January 2012 but this decision was not without criticism (‘Power cuts as state endures scorcher’ ABC News, 2 January 2012; ‘ETSA defends decision to cut power’ ABC News, 3 January 2012). An ETSA spokesperson is quoted as saying:

“We recognise there is inconvenience but we recognise that at the end of the day we have … to make these decisions and we have to make them in real time in emerging circumstances to protect lives and property.

He says the decision to cut power was the right one.”

ETSA may have believed it was doing the right thing when it disconnected the power but to reduce the risk to human life, regardless of the inconvenience, but even that is not without controversy. In research published in the Medical Journal of Australia Richard Broome and Wayne Smith report on their study of the likely public health effects of cutting off the power (Broome R, and Smith, W., ‘The definite health risks from cutting power outweigh possible bushfire prevention benefits’ (197(8) Medical Journal of Australia 440-441; see also my earlier blog-post: ‘Electricity authorities, out of the frying pan and into the fire?‘ (October 19, 2012)).  Broome and Smith argue that ensuring power supply is necessary to maintain air conditioning as well as life sustaining equipment:

An important omission from the health and safety arguments … is a discussion of the role of air conditioning in preventing heat-related illness. Days of high fire danger are generally very hot and therefore likely to be associated with high rates of heat-related morbidity and mortality. For example, the Victorian government estimated that the 7-day heatwave preceding the February 2009 bushfires caused 374 deaths, a 62% increase above the baseline mortality rate…

Deaths from heat outweigh direct deaths from catastrophic bushfires … So from a public health perspective, power cuts are more likely to lead to adverse health outcomes than maintaining power on potentially catastrophic bushfire days…

What can be inferred from this discussion is:

1. Fires are regularly started by electrical assets.
2. So far, legal claims for compensation against the electrical authorities have settled out of court which suggests that the authorities see the cost of paying out as more economic than the cost of defending these actions; and they’re still making a profit.
3. Generally the community is not willing to tolerate the increased electricity costs, and loss of reliability that would be required to decrease the risk of electrically caused fires. And if Broome and Smith are correct, reducing the reliability of the power supply may cause more deaths from heat related events than are killed from the impact of fire.

It appears that the risk of fires such as those seen on Ash Wednesday (1983), Black Saturday (2009) and now Sydney 2013 is the price we the community pay, and are prepared to pay, to have a relatively cheap, highly reliable electrical supply.

I was very disappointed to read this (among other disappointing things) in the 2014 Budget Papers (http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-05.htm)

The Government will achieve savings of $0.9 million over four years by transitioning the Australian Emergency Management Institute (AEMI) into a ‘virtual’ institute.

The AEMI will continue to be a Centre of Excellence for knowledge and capability development in the national emergency management sector providing a range of education, training, professional development, information, research and community awareness services to the nation and our region. The transition will allow AEMI greater flexibility to deliver emergency management training.

Now I’m all for distance education but one of the great things of AEMI is that is has not been ‘virtual’ – rather it’s been a place to bring together people in the emergency services and emergency management, often volunteers, so they can meet those from other services and other states and build the connections and understanding that are so vital when a major response is required. The Senior officers have those connections but making them available to a broad range of people is essential for developing capacity in the emergency services, and now is something to be lost.

Presumably the iconic college, that has been part of the Civil Defence/Emergency Management industry since 1956, will be sold off and what is to happen to the staff? Residential staff will no doubt lose their work but what of the educators with all those years of experience both in the sector and in training the sector? Will they be retained to maintain the ‘Centre of Excellence’ but will that require a move to Melbourne or Canberra? Or will that training function be outsourced to the lowest bidder?

I see other relevant budget outcomes are
‘The AFP will cease recruitment of additional sworn officers at the end of the 2013‑14 financial year’;
‘The Government will provide up to $1.0 million for Personal Hardship Payments under a 50:50 cost‑sharing arrangement with the Victorian Government for those affected by the open cut coal mine fire that started on 9 February 2014. This is in addition to the $1.0 million in payments provided to victims of the September 2013 NSW bushfires through the Australian Government Disaster Recovery Payment Programme… The payment to Victoria will be made under the Natural Disaster Relief and Recovery Arrangements. Provision for the NSW bushfires has been met from within existing resources of the Attorney‑General’s Department.’;
‘The Government will provide $15.0 million over three years from 2014‑15 to states and territories to implement long term bushfire mitigation strategies and better fuel reduction programmes. This will contribute to safer, more resilient communities, which are better able to prepare for, respond to and withstand the impacts and effects of bushfires.’

For further analysis of the budget see Australian Federal Budget: Bad News for Disasters by Casus Calamitas Consulting.

I was very disappointed to read this (among other disappointing things) in the 2014 Budget Papers (http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-05.htm)

The Government will achieve savings of $0.9 million over four years by transitioning the Australian Emergency Management Institute (AEMI) into a ‘virtual’ institute.

The AEMI will continue to be a Centre of Excellence for knowledge and capability development in the national emergency management sector providing a range of education, training, professional development, information, research and community awareness services to the nation and our region. The transition will allow AEMI greater flexibility to deliver emergency management training.

Now I’m all for distance education but one of the great things of AEMI is that is has not been ‘virtual’ – rather it’s been a place to bring together people in the emergency services and emergency management, often volunteers, so they can meet those from other services and other states and build the connections and understanding that are so vital when a major response is required. The Senior officers have those connections but making them available to a broad range of people is essential for developing capacity in the emergency services, and now is something to be lost.

Presumably the iconic college, that has been part of the Civil Defence/Emergency Management industry since 1956, will be sold off and what is to happen to the staff? Residential staff will no doubt lose their work but what of the educators with all those years of experience both in the sector and in training the sector? Will they be retained to maintain the ‘Centre of Excellence’ but will that require a move to Melbourne or Canberra? Or will that training function be outsourced to the lowest bidder?

I see other relevant budget outcomes are
‘The AFP will cease recruitment of additional sworn officers at the end of the 2013‑14 financial year’;
‘The Government will provide up to $1.0 million for Personal Hardship Payments under a 50:50 cost‑sharing arrangement with the Victorian Government for those affected by the open cut coal mine fire that started on 9 February 2014. This is in addition to the $1.0 million in payments provided to victims of the September 2013 NSW bushfires through the Australian Government Disaster Recovery Payment Programme… The payment to Victoria will be made under the Natural Disaster Relief and Recovery Arrangements. Provision for the NSW bushfires has been met from within existing resources of the Attorney‑General’s Department.’;
‘The Government will provide $15.0 million over three years from 2014‑15 to states and territories to implement long term bushfire mitigation strategies and better fuel reduction programmes. This will contribute to safer, more resilient communities, which are better able to prepare for, respond to and withstand the impacts and effects of bushfires.’

For further analysis of the budget see Australian Federal Budget: Bad News for Disasters by Casus Calamitas Consulting.

This Bill passed through the Queensland legislative assembly on Tuesday 6 May 2014. The Bill represents some significant reforms of emergency service legislation in that State. The Bill gives effect to the recommendations from the Keelty review of Queensland’s emergency management arrangements.

Public Safety Business Agency
The Bill creates the Public Safety Business Agency to provide common administrative and support services to Queensland’s public safety agencies, which are the Queensland Fire and Emergency Service, the government department responsible for administering the Fire and Emergency Services Act 1990, Queensland Police and the Office of the Inspector-General of Emergency Management (Public Safety Business Agency Bill 2014 (Qld) s 5).

Inspector-General of Emergency Management
The Bill amends the Disaster Management Act 2003 by introducing a new Part 1A that creates the office of Inspector-General of Emergency Management. The Inspector-General is, amongst other things, to:

• Review and assess the effectiveness of disaster management arrangements at State, district and local levels;
• Review and assess cooperation between, and the performance of, agencies involved in disaster management including whether systems and procedures are compatible and whether there are opportunities for cooperative partnerships to improve disaster management performance;
• Set disaster management standards;
• Improve disaster management capabilities, including volunteer capabilities;
• Monitor compliance by departments with disaster management responsibilities.

Queensland Fire and Emergency Service
The Bill amends the Fire and Rescue Service Act 1990 (Qld) firstly by changing the name of that Act to the Fire and Emergency Service Act 1990 (Qld). The Bill transfers responsibility for the State Emergency Service from the Department and the old Emergency Management Queensland (EMQ) to the new Fire and Emergency Service.

It is now the responsibility of the Commissioner of the Queensland Fire and Emergency Service (formerly the Queensland Fire and Rescue Service) to establish SES units and appoint members and local controllers. The Act does not, however, provide for district management of the SES. Under Queensland legislation it is local government that are primarily responsible for disaster management within their area (Disaster Management Act 2003 (Qld) ss 29-37). Where a disaster event crosses local government boundaries and the event exceeds the capacity of the local units, and then the Commissioner may appoint an SES coordinator ‘to coordinate the performance of SES functions in the local government areas’. This is a temporary appointment and is terminated ‘if the commissioner considers it is no longer necessary for an SES coordinator to be appointed’. It would appear that this person may be filling the sort of role that in other states would be filled by a region or district controller but there is no provision for a ‘standing’ officer or permanent appointment at that level.

The Commissioner could appoint someone as a regional officer to exercise the commissioner’s powers with respect to the SES units and to avoid him or her having to deal with every unit, but that position would be an administrative and support position rather than an operational position. That person may be the ideal candidate for appointment, as the SES coordinator should the need arise but that operational appointment would be dependent upon the impact of the significant, overwhelming event.

All the other provisions regarding the SES and Emergency Service Units appear to be transferred from the current Disaster Management Act so those services should be able to continue as they have been, just under a different department and commander.

The Bill will allow the Commissioner to charge for fire fighting services. The charges will be set by regulation or by the Commissioner. Where the Commissioner sets a charge it must ‘be reasonable and not more than the actual cost of providing the service’. The person for whose benefit the service is provided and the person who causes the fire or other incident are liable to pay the charges though, presumably, they may be the subject of insurance so if your house catches fire one would expect your household insurer to pick up that charge as well as the cost of repairing the home. The issue will be if you are not insured and for people who ‘cause’ a fire or incident. If the New Zealand model is applied, such charges are not covered by insurance (in New Zealand where the fire is negligently or deliberately lit). The cost of dealing with a fire may well exceed the cost of the damage done, as the fire brigades may be effective in limiting the damage, so these types of provisions can impose a very significant cost on those who ‘cause’ fires or other incidents (see Charging for fire response, 18 February 2013). The Commissioner can waive the charges if he or she is ‘satisfied waiving the charge, or part of the charge, is reasonable in the circumstances’. It will be interesting to see how these provisions are applied both by governments and the courts once the Bill takes effect.

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). It will be up to the Government to determine when that occurs so they can hold off, should they wish, the start of the Act to ensure that all the necessary administrative arrangements are in place.

This Bill passed through the Queensland legislative assembly on Tuesday 6 May 2014. The Bill represents some significant reforms of emergency service legislation in that State. The Bill gives effect to the recommendations from the Keelty review of Queensland’s emergency management arrangements.

Public Safety Business Agency
The Bill creates the Public Safety Business Agency to provide common administrative and support services to Queensland’s public safety agencies, which are the Queensland Fire and Emergency Service, the government department responsible for administering the Fire and Emergency Services Act 1990, Queensland Police and the Office of the Inspector-General of Emergency Management (Public Safety Business Agency Bill 2014 (Qld) s 5).

Inspector-General of Emergency Management
The Bill amends the Disaster Management Act 2003 by introducing a new Part 1A that creates the office of Inspector-General of Emergency Management. The Inspector-General is, amongst other things, to:

• Review and assess the effectiveness of disaster management arrangements at State, district and local levels;
• Review and assess cooperation between, and the performance of, agencies involved in disaster management including whether systems and procedures are compatible and whether there are opportunities for cooperative partnerships to improve disaster management performance;
• Set disaster management standards;
• Improve disaster management capabilities, including volunteer capabilities;
• Monitor compliance by departments with disaster management responsibilities.

Queensland Fire and Emergency Service
The Bill amends the Fire and Rescue Service Act 1990 (Qld) firstly by changing the name of that Act to the Fire and Emergency Service Act 1990 (Qld). The Bill transfers responsibility for the State Emergency Service from the Department and the old Emergency Management Queensland (EMQ) to the new Fire and Emergency Service.

It is now the responsibility of the Commissioner of the Queensland Fire and Emergency Service (formerly the Queensland Fire and Rescue Service) to establish SES units and appoint members and local controllers. The Act does not, however, provide for district management of the SES. Under Queensland legislation it is local government that are primarily responsible for disaster management within their area (Disaster Management Act 2003 (Qld) ss 29-37). Where a disaster event crosses local government boundaries and the event exceeds the capacity of the local units, and then the Commissioner may appoint an SES coordinator ‘to coordinate the performance of SES functions in the local government areas’. This is a temporary appointment and is terminated ‘if the commissioner considers it is no longer necessary for an SES coordinator to be appointed’. It would appear that this person may be filling the sort of role that in other states would be filled by a region or district controller but there is no provision for a ‘standing’ officer or permanent appointment at that level.

The Commissioner could appoint someone as a regional officer to exercise the commissioner’s powers with respect to the SES units and to avoid him or her having to deal with every unit, but that position would be an administrative and support position rather than an operational position. That person may be the ideal candidate for appointment, as the SES coordinator should the need arise but that operational appointment would be dependent upon the impact of the significant, overwhelming event.

All the other provisions regarding the SES and Emergency Service Units appear to be transferred from the current Disaster Management Act so those services should be able to continue as they have been, just under a different department and commander.

The Bill will allow the Commissioner to charge for fire fighting services. The charges will be set by regulation or by the Commissioner. Where the Commissioner sets a charge it must ‘be reasonable and not more than the actual cost of providing the service’. The person for whose benefit the service is provided and the person who causes the fire or other incident are liable to pay the charges though, presumably, they may be the subject of insurance so if your house catches fire one would expect your household insurer to pick up that charge as well as the cost of repairing the home. The issue will be if you are not insured and for people who ‘cause’ a fire or incident. If the New Zealand model is applied, such charges are not covered by insurance (in New Zealand where the fire is negligently or deliberately lit). The cost of dealing with a fire may well exceed the cost of the damage done, as the fire brigades may be effective in limiting the damage, so these types of provisions can impose a very significant cost on those who ‘cause’ fires or other incidents (see Charging for fire response, 18 February 2013). The Commissioner can waive the charges if he or she is ‘satisfied waiving the charge, or part of the charge, is reasonable in the circumstances’. It will be interesting to see how these provisions are applied both by governments and the courts once the Bill takes effect.

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). It will be up to the Government to determine when that occurs so they can hold off, should they wish, the start of the Act to ensure that all the necessary administrative arrangements are in place.

This question comes from a local government in Western Australia. They ask:

In the context of insurance liability and risk,
1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?
2. Is the risk to local government greater or less if they employ their own chief fire control officer?
3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?
4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

Tort liability arises if an agency, in this case the local government, has a duty to do something, fails to act reasonably and that causes damage. It has to be determined on a case by case basis so there is no simple rule that can be summed up as “if you do x you cannot be liable”.

Let us now turn to the questions. The bush fires act is the Bushfires Act 1954 (WA). Section 38 says “A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers …” From those officers one must be appointed as the Chief Bush Fire Control Officer and another as the Deputy Chief Bush Fire Control Officer.

Where there is a vacancy in the office of Chief or Deputy Chief Bush Fire Control Officer the local government must fill that vacancy within one month. If they do not do so, the Fire and Emergency Services Commissioner may serve a notice on the council requiring them to fill the vacancy and if they do not comply then ‘the FES Commissioner may appoint a person who is not employed in the Department to the vacant office’ (s 38(2)(d)). Further, ‘At the request of a local government the FES Commissioner may designate a person employed in the Department as the Chief Bush Fire Control Officer for the district of that local government’ (s 38A).

Where a local government has appointed a bush fire control officer it may give directions on how those officers, including the Chief Bush Fire Control Officer, are to carry out ‘normal brigade activities’ and exercise their authority under Part III of the Act (dealing with actions to prevent bush fires). The local government may also issues directions to a fire control officer with respect to hazard reduction burns ‘on, or at the margins of, streets, roads, and ways, under the care, control and management of the local government’ (ss 38(4) and (5A)). Where the Chief Bushfire Control Officer is appointed by the FES Commissioner (s 38A(1)) then it is the FES Commissioner who may give those directions to the Chief Bush Fire Control Officer.

In all other respects, the Act applies to a Chief Fire Control Officer appointed by the FES Commissioner as if he or she were appointed by the local government (s 38A(3)).

To return to the questions:

1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?

No there is nothing that would suggest that a Chief Fire Control Officer should come from DFES. The only liability issue it would seem is that it would be the FES Commissioner that would give ‘directions’ to the Chief Fire Control Officer under ss 38(3) to (5C) and if, somehow those directions were negligent and caused damage that could shift liability to FES.

2. Is the risk to local government greater or less if they employ their own chief fire control officer?

It would make no difference. Regardless of how the Officer is appointed, the Act applies to them as if they were appointed by the Local Government (s 38A(3)).

3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?

No.

4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

It is not clear what ‘Liability and accountability’ we are talking about. The Chief Bush Fire Control Officer is meant to be one of a team. The FES can appoint the Chief but not all the other Bush Fire Control officers. Section 38A(3) says ‘The provisions of this Act, other than section 38(3) to (5C) apply to and in relation to the Chief Bush Fire Control Officer designated under this section as if he or she were a Chief Bush Fire Control Officer appointed under section 38 by the local government.’ With the exception of the exercise of powers under ss 38(3) to (5C) it makes no difference whether it is the FES Commissioner or the Local Government that appoints the Chief Fire Officer.

This question comes from a local government in Western Australia. They ask:

In the context of insurance liability and risk,
1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?
2. Is the risk to local government greater or less if they employ their own chief fire control officer?
3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?
4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

Tort liability arises if an agency, in this case the local government, has a duty to do something, fails to act reasonably and that causes damage. It has to be determined on a case by case basis so there is no simple rule that can be summed up as “if you do x you cannot be liable”.

Let us now turn to the questions. The bush fires act is the Bushfires Act 1954 (WA). Section 38 says “A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers …” From those officers one must be appointed as the Chief Bush Fire Control Officer and another as the Deputy Chief Bush Fire Control Officer.

Where there is a vacancy in the office of Chief or Deputy Chief Bush Fire Control Officer the local government must fill that vacancy within one month. If they do not do so, the Fire and Emergency Services Commissioner may serve a notice on the council requiring them to fill the vacancy and if they do not comply then ‘the FES Commissioner may appoint a person who is not employed in the Department to the vacant office’ (s 38(2)(d)). Further, ‘At the request of a local government the FES Commissioner may designate a person employed in the Department as the Chief Bush Fire Control Officer for the district of that local government’ (s 38A).

Where a local government has appointed a bush fire control officer it may give directions on how those officers, including the Chief Bush Fire Control Officer, are to carry out ‘normal brigade activities’ and exercise their authority under Part III of the Act (dealing with actions to prevent bush fires). The local government may also issues directions to a fire control officer with respect to hazard reduction burns ‘on, or at the margins of, streets, roads, and ways, under the care, control and management of the local government’ (ss 38(4) and (5A)). Where the Chief Bushfire Control Officer is appointed by the FES Commissioner (s 38A(1)) then it is the FES Commissioner who may give those directions to the Chief Bush Fire Control Officer.

In all other respects, the Act applies to a Chief Fire Control Officer appointed by the FES Commissioner as if he or she were appointed by the local government (s 38A(3)).

To return to the questions:

1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?

No there is nothing that would suggest that a Chief Fire Control Officer should come from DFES. The only liability issue it would seem is that it would be the FES Commissioner that would give ‘directions’ to the Chief Fire Control Officer under ss 38(3) to (5C) and if, somehow those directions were negligent and caused damage that could shift liability to FES.

2. Is the risk to local government greater or less if they employ their own chief fire control officer?

It would make no difference. Regardless of how the Officer is appointed, the Act applies to them as if they were appointed by the Local Government (s 38A(3)).

3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?

No.

4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

It is not clear what ‘Liability and accountability’ we are talking about. The Chief Bush Fire Control Officer is meant to be one of a team. The FES can appoint the Chief but not all the other Bush Fire Control officers. Section 38A(3) says ‘The provisions of this Act, other than section 38(3) to (5C) apply to and in relation to the Chief Bush Fire Control Officer designated under this section as if he or she were a Chief Bush Fire Control Officer appointed under section 38 by the local government.’ With the exception of the exercise of powers under ss 38(3) to (5C) it makes no difference whether it is the FES Commissioner or the Local Government that appoints the Chief Fire Officer.

This is an interesting question from Victorian local government. I’ve been asked:

Is the Emergency Management Manual Victoria (EMMV) legally binding for state or local government? We understand that it refers to the Emergency Management Act (1986) and other acts when it elaborates on the content of state or local emergency response/management plans. Does government therefore have to follow a manual, from a legal point of view? The same question appears when dealing with the 2009 Victorian Bushfire Recommendations, or the white paper.

The Emergency Management Manual Victoria (EMMV) is available online at http://www.oesc.vic.gov.au/emergencymanual. Part 3 of the Manual is the State Emergency Response Plan (SERP). Preparation of the SERP is mandated by the Emergency Management Act 1986 (Vic). The plan is to provide ‘for the co-ordinated response to emergencies by all agencies having roles or responsibilities in relation to the response to emergencies’ (s 10). The SERP is to be published and a copy provided to ‘every agency to which the state emergency response plan applies’ (s 17).

A municipal council must also prepare a municipal emergency management plan (s 20) and that plan must be audited at least once every three years to ensure that it ‘complies with guidelines issued by the Minister’ (s 21(5) and s 21A). The relevant guidelines form part 6 of EMMV.

The interesting question is ‘what does it mean to ask is the EMMV legally binding?’ The answer to that depends upon what sort of law or legal remedy you are talking about. As part of the correspondence on this question, that is correspondence to clarify the question before I wrote this post, it was suggested that:

… it is likely that organisation would be considered to be breaching their common law duty of care by not following industry best practice, unless they could sufficiently show that the actions were for a reason that could not be reasonably covered by the plan.

That statement confuses two questions in negligence law; one is whether or not there is a duty of care, the second, which only arises if the answer to the first question is ‘yes’, is ‘what would a reasonable person do in response to that duty?’

In an earlier post I reported on a decision in Matthews v SPI Electricity (No 2) [2011] VSC 168 (see ‘Black Saturday’ litigation, May 11, 2011). There I said:

“This was an application by the State of Victoria to dismiss claims made alleging breach of statutory duty and negligence by members of Victoria Police, DSE and the CFA.

“The original case against SPI Electricity alleges negligence in they way the operated and maintained electricity distribution assets. SPI joined, as a defendant, the State of Victoria alleging that part of the loss or damage was due to a failure by police to perform their duties under the Emergency Management Act 1996 (Vic) and the associated disaster plan (DISPLAN) [now SERP]…

“The case against the police was based on two different torts; one was ‘breach of statutory duty’ and the other was ‘negligence’. Although related these two torts are not the same. To succeed in a claim for breach of statutory duty, the plaintiff has to show that the defendant was obliged (not merely permitted) to do something; that they failed to do what they were required to do; as a result the plaintiff suffered damage; and most importantly, that the Parliament, in imposing the duty, intended that the Act would give an injured individual a private right to sue for damages. The parliament does not usually spell out its intention in such clear language so the intention must be inferred from the structure of the Act. Where, for example, an Act provides for a remedy, for example that failure to do what is required is to be punished by a fine, then that would suggest that an alternative remedy, the payment of damages, was not intended. Equally where an Act is designed to establish a scheme for the benefit of the community as a whole, rather than an identified class of people, it is unlikely that the parliament intended that individuals would have a private right to sue.

“Forrest J had to consider these issues in relation to the Emergency Management Act 1996 (Vic). He noted that the Act was designed to establish coordination and response arrangements across Victoria for all types of hazards. The Act, and DISPLAN, were intended to ensure that ‘key players know who is in charge at particular levels and what their responsibilities are.’ [73]. He said (at [76]):

“Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right – to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.

“Forrest J formed the view that, by passing the Act, the Parliament in no way intended to give individuals a private right to sue if they believed that a person, in this case a police officer, had failed to perform a task or duty set out in either the Act or DISPLAN. Accordingly the action based on breach of statutory duty was dismissed.”

The net result of that (remembering this is the decision of a single judge so not a binding precedent) is that just because the SERP says that an agency, such as the police or the council, is to do something that does not give an aggrieved individual the right to sue for damages because they haven’t done that thing.

As for a common law duty of care, deciding when that exists is very complex and depends entirely on the particular facts. A court will consider all the ‘salient features’ of the relationship between the plaintiff and the defendant to determine whether, as a matter of law, those facts lead to a conclusion that the defendant had to take reasonable care to protect, or avoid harming, the plaintiff. In Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, Alsop P identified a list of 17 relevant ‘features’ that needed to be considered in deciding whether or not there was a duty of care so it is impossible to explain here (if it is every possible) exactly how and when a duty of care will arise; but if we assume that an agency does owe a common law duty of care to an individual, then certainly failure to comply with the SERP could be evidence of failure to act ‘reasonably’.

In terms of making the plan then compliance with the Guidelines is mandatory (see ss 21(5) and 21A) but again the remedy is probably not an action for damages. If someone did try to sue they would have to deal with the Wrongs Act 1958 (Vic) s 84(2) which says:

For the purpose of the proceeding, an act or omission of the public authority relating to a function conferred on the public authority specifically in its capacity as a public authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

Someone who alleged that a plan did not meet the guidelines could only succeed (assuming they could establish a duty of care) if the plan was ‘so unreasonable’ that ‘no public authority’ would accept that it was an attempt to comply with the guidelines. So if a council wrote their response plan without looking at the guidelines, with no reference to the guidelines, without any attempt whatsoever to comply with the guidelines, then they would not enjoy any protection from s 84. If, on the other hand, there is an honest attempt there could be no liability even if, in retrospect, it can be shown that a better plan could have been prepared or the plan that was prepared did not, despite genuine attempts, actually comply with the guidelines.

So the first conclusion is that the presence of an assigned task or duty in the SERP will not, simply because of that, give rise to a duty of care. Further a person who wanted to sue either because a municipal authority did not follow the SERP or because they (the person suing) alleged the municipal plan did not comply with the guidelienes, they would have a very difficult if not impossible case to make. So in that sense the EMMV is not ‘legally binding’ if by legally binding you mean ‘likely to expose us to an obligation to pay damages (ie monetary compensation)”.

But there are other areas of law, for example, administrative law. Under administrative law a person could seek an order requiring an authority to do what that authority is required to do. So, for example, a municipal authority that is required to prepare a municipal emergency management plan may not be legally liable to pay damages if they don’t prepare a plan, but a person with a relevant interest, say a ratepayer, may have standing in the Supreme Court to obtain an order to require the Council to make the plan.

There is also what we might call local government law. Local governments in Australia are not independent authorities, they are the creature of statute law. In Victoria, municipal authorities are established by the Local Government Act 1989 (Vic). The purpose of local government is not to do what they want, or what they think is a good idea, but “to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts. (s 3A, emphasis added).

Where a local government is failing to exercise good governance the Minister may appoint an inquiry into the council’s affairs, may recommend to the Mayor remedial action to be taken and may, pending resolution of the matter, authorise someone else to take steps to give effect to the recommendation (Local Government Act 1989 (Vic) ss 209-218) and may, ultimately,

… recommend to the Governor in Council that all the Councillors of a Council be suspended, if the Minister is satisfied on reasonable grounds—
(a) … that there has been a serious failure to provide good government … (Local Government Act 1989 (Vic) s 219).

If the Minister for Police and Emergency Services is responsible for ensuring that ‘satisfactory emergency management arrangements are in place’ and has approved the SERP for that purpose (Emergency Management Act 1986 (Vic) ss 5 and 10) then the Minister for Local Government may think that only a very ‘courageous’ local government (using that term as Sir Humphrey Appleby might use it; see https://www.youtube.com/watch?v=ik8JT2S-kBE) would chose to ignore, or thought it was not bound to give full faith and credit to the EMMV.

In that sense I would suggest the EMMV is, indeed, binding on local authorities.

This is not about emergency law (sorry) but a plug for a survey that is being conducted by my friend, colleague and PhD student at the ANU, David Hudson. David is interested in how emergency managers use data to make decisions. To find out he is inviting emergency management personnel, whether your in a level 3 IMT or a volunteer first responder, to take part in a voluntary, on-line emergency management industry survey. The survey asks you to share your opinions and experiences regarding the use and usefulness of sensor data from satellites, planes and ground based sensors, including social media, for supporting emergency management decision-making. You do not need any formal background in or understanding of data to participate in the survey.

The survey is being conducted by the Australian National University in collaboration with Geoscience Australia, the Cooperative Research Centre for Spatial Information and the Bushfire & Natural Hazards Cooperative Research Centre.

The validity of the survey is dependent upon strong industry participation and he would very much appreciate your time in completion the survey. It is expected that the survey will take around 15 minutes to complete. To see the survey, go to [https://www.surveymonkey.com/s/WTKC3KJ]. This website also provides more information about the survey, why it is being conducted, and how your survey data will be used, and how your confidentiality is ensured.

If you have any questions or concerns about the survey please don’t hesitate to contact David Hudson on david.hudson@anu.edu.au

Michael Eburn
28 April 2014.

For more details, click here.

I maintain, for my own purposes, a web page with links to relevant emergency management law and policy documents.  Although the page is intended for my use, readers of this blog would, I imagine, also find it useful.

Regards

Michael Eburn
27 April 2014.

My friend and colleague Luke Dam wrote to me about a story appearing in Victoria’s Herald Sun newspaper “SES raises safety over equipment thefts” http://lnkd.in/bjM2rw6.

The story reports on thefts from SES units including incidents where unit members have fraudulently obtained benefits by either taking money, or getting the SES to pay for private expenses.   In one case a Unit Commander entered a plea of guilty ‘… to charges of making false documents after he stashed $14,000 of SES funds in a secret bank account and in a safe. He admitted forging minutes purporting to be from a unit meeting, which gave him the authority to be the sole signatory for the unit’s account’. The Unit Commander ‘was found guilty without a conviction and fined $600’.

Luke asks ‘How can there be no conviction if they’ve been found guilty? Is that correct? Is there a trigger point or is it a discretionary call?’

It is in fact a discretionary call.  The Sentencing Act 1991 (Vic) s 7(1) says: “If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act…” it then goes onto list a number of sentencing options, most, but not all, of which start with ‘record a conviction and …’   A court may, however:

 (e) with or without recording a conviction, make a community correction order in respect of the offender; or

(f)  with or without recording a conviction, order the offender to pay a fine; or …

(j) without recording a conviction, order the dismissal of the charge for the offence…

In deciding whether or not to record a conviction:

 … a court must have regard to all the circumstances of the case including—

(a) the nature of the offence; and

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects. (Sentencing Act 1991 (Vic) s 8(1)).

If no conviction is recorded, a person can honestly say, if completing a police or other check, they have never been convicted of an offence and automatic penalties that apply ‘on conviction’ (such as loss of licence for drink driving) do not apply, as there is no conviction!

Now I don’t know anything about the Unit Commander referred to in the paper but one can see why some of those issues could be relevant.  Think of s 8(1)(b) and (c) above.  Someone’s who has risen to the rank of Unit Commander can probably point to, apart from this offence, good character and contribution to the community.  He may well be severely impacted by a conviction in that it may affect his employment and the court may think that the consequences of his volunteering should not extend that far, particularly if volunteering for the SES has been a significant part of his life, perhaps that gave him social status and credit, and that has now been lost to him. In Castle v DG SES [2008] NSWCA 231 the court held that the potential ‘damage to the claimant’s reputation’ meant that a unit controller should have been given the opportunity to be heard before the unit of which he was in charge was disbanded and his position as ‘controller’ removed.  The standing one has as a unit controller was considered sufficient in that case, and equally the loss of standing on being found to have fraudulently appropriated funds, whilst justified, is not insignificant.   In that sense being caught will have impacted upon his ‘social well being’ sufficiently so that the further consequences of a conviction are not warranted.

There is also the issue of ‘the nature of the offence’.  We don’t know but can imagine that one’s service to an organisation like the SES may well contribute to one’s offending and so the nature of the offence.  Organisations like the SES recognise that service with them can be damaging (see Creating a network of support <http://www.ses.vic.gov.au/media/news/news-items/creating-a-network-of-support>; in NSW see Critical Incident and Counselling Services http://www.ses.nsw.gov.au/volunteering/cics/).  If it is recognised that people can be harmed by their service, it also has to be recognised that not everyone responds to that harm in the same way or even acceptable ways.  The SES may want to assist members ‘who may be experiencing or have experienced a traumatic incident or stressful reactions following their operational involvement in an event’ (http://www.ses.nsw.gov.au/volunteering/cics/cisp) or events and hopefully that includes all members regardless of how their trauma manifests itself.  Services should not only support those who demonstrate their trauma in ‘acceptable’ ways (crying, loss of concentration) but not those who behave in an ‘unacceptable’ way (violence or other crime).  The courts may deal with their crime but if it is a manifestation of their service, then the SES (or other service) should still be willing to support them.

Another issue in organisations like SES is that there is a limited pool of members to appoint to positions of authority. If the role of Unit Commander was a full time, paid job there would be a wider selection of applicants and people may be prepared to move to take up the job.   Where it’s a volunteer position the pool of potential appointees is largely limited to the members of the unit.  Picking the best candidate may be a matter of picking the one person left standing after the call for volunteers; and that person may not be fully up to the job; they may have been a great team leader or rescue operator, but does that make them a financial manager?  I note that the Auditor General’s report into the NSW SES has noted the need to assess what volunteer staff are required and recruit accordingly (New South Wales Auditor-General’s Report, Performance Audit Management of volunteers: NSW State Emergency Service (2014)).

It may be that a Unit Commander is appointed to a job they are not really suited for and not given adequate direction and supervision so opportunities for fraud, or just mistake, may well present themselves.  That person also needs to be supported by the Service, which should also take responsibility for the systems and process that are in place to protect its assets.

Did any of this apply here?  I of course have no idea of the facts of the case reported here and whether the members were just ratbags, or whether after years of service, perhaps pressure from home, many, many hours of unpaid work, compounded by traumatic events, some opportunity presented that but for their service they would never have acted upon.  If that’s the case (or somewhere between those two extremes) a court may well take that into account when considering ‘the nature of the offence’ and determine that if they are now removed from their role, probably removed from the SES, the likelihood of reoffending is low so that a conviction is not warranted.

It may be, I would even hope that in the right circumstances it would be, the case that the SES would have stood by the member and said in effect – they did the wrong thing, they even hurt us, but they are one of ours and if their service harmed them then we need to support him or her.  If that did occur (and again to reiterate, I have no idea if it did, or would or should have in this case) that would go a long way to convincing a court that a conviction is not warranted.

To return to Luke’s question, yes there can be no conviction even if a person is found to have committed an offence.  There is no ‘trigger point’, each case has to be judged on its merits, so it is a discretionary call, butt, like all sentencing decisions, it is not an unlimited discretion.  The court has to consider the matters set out in the Sentencing Act 1991 (Vic) s 8(1) plus general principles of sentencing law (which one can’t begin to spell out here).