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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 5 hours 53 min ago

Mandatory reporting by treating paramedics

21 January, 2020 - 10:33

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

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

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

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

The Paramedicine Board has announced that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

Categories: Researchers

Setting policy and standards within the NSW RFS

21 January, 2020 - 09:48

Today’s question is:

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

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

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

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

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

With respect to service standards, s 13 says

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

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

(a) fire reporting,

(b) operational co-ordination,

(c) operational planning,

(d) bush fire risk management planning,

(e) fire fighting assistance planning,

(f) standards of fire cover reporting,

(g) implementation of training standards,

(h) communications,

(i) brigade management,

(j) community education,

(k) protocols on relevant matters,

(l) health and safety.

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

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

Conclusion

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

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

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

Categories: Researchers

Making defibrillators compulsory in Victoria

20 January, 2020 - 13:30

Today’s correspondent says he is

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

POSTSCRIPT

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

Thanks for the work on these posts

These might be of interest and related to this topic:

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

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

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

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

 

Categories: Researchers

Defining ‘first responder’

18 January, 2020 - 19:03

Today’s correspondent says:

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

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

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

… person who—

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

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

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

Conclusion

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

 

Categories: Researchers

Feeding firefighters

18 January, 2020 - 10:05

Today’s question is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) the hazard or the risk, and

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

Categories: Researchers

Accessing this blog via LinkedIN and Twitter

18 January, 2020 - 09:06

This blog is published on a WordPress site.  WordPress has ‘plugins’ that allow the posts I make here to be automatically republished on Facebook, LinkedIN and Twitter.

I regularly look at the Facebook version of the site.  I rarely look at LinkedIN. I never look at Twitter.  If you have questions or comments and post them via LinkedIN or Twitter I’m unlikely to see them; I won’t respond to them.

If you want to comment on a post please do so via WordPress or Facebook.  If you have questions you can send them to me as a comment on the WordPress site, via the message service on Facebook, or by email to michael.eburn(at)anu.edu.au (but remember to use ‘@’ instead of ‘(at)’).

Categories: Researchers

Accidental damage by the NSW SES

17 January, 2020 - 20:01

Today’s correspondent says:

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

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

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

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

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

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

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

What are your thoughts?

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

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

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

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

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

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

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

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

Section 25A(1) says:

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

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

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

Let me then turn to the questions:

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

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

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

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

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

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

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

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

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

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

That’s not for me to say.

Categories: Researchers

Trust operations 101

16 January, 2020 - 12:23

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

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

Facebook fundraiser

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

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

Who the recipient was to be was clear.

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

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

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

To donate, people:

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

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

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

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

All fees are covered by Facebook.

First conclusion

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

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

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

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

Trusts

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

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

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

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

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

Second Conclusion

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

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

The NSW Rural Fire Service & Brigades Donations Fund

The New South Rural Fire Service is created by the Rural Fires Act 1997 (NSW). It is a government operated service just like Fire and Rescue NSW and NSW Police.  It depends on volunteer firefighters to operate, but the service itself is part of the NSW Government.  If the Rural Fire Service is sued, it is sued as ‘The State of New South Wales’ (see for example Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 the litigation alleging negligence by the RFS in its management of the fires that ultimately burned into the Australian Capital Territory and Canberra).

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

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

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

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

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

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

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

A public fund that satisfies all of the following requirements:

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

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

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

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

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

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

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

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

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

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

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

Third conclusion

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

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

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

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

Administrative costs

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

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

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

Where will it go

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

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

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

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

Conclusion Four

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

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

Resisting another Royal Commission

16 January, 2020 - 10:05

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

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

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

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

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

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

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

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

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

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

Categories: Researchers

Compensation of spontaneous volunteers assisting the NSW RFS

15 January, 2020 - 16:08

Today’s correspondent asks

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

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

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

The short answer is ‘yes’.

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

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

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

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

(ii)           in conjunction with any civil authority, and

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

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

Categories: Researchers

Discipline in NSW RFS – accessing the original complaint

13 January, 2020 - 16:21

Today’s correspondent is

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

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

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

An allegation must be:

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

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

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

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

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

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

Conclusion

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

 

Categories: Researchers

Donations to RFS trust on hold

13 January, 2020 - 15:21

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘are you sure it’s us?’…

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

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

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

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

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

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

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

As one correspondent to this blog says:

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

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

A possible solution?

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

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

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

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

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

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

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

Categories: Researchers

Details of firefighters’ compensation scheme (at least in Queensland)

9 January, 2020 - 20:19

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

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

Eligibility

A volunteer firefighter who:

  • is from a recognised firefighting organisation in NSW
  • has been volunteering as part of an operational response to bushfires for more than 10 days since 1 July 2019. This can include reasonable travel and recovery time but does not include training or participating in non-emergency operations (for example, hazard reduction burns).
  • is self-employed or employed by a small or medium business (a business with less than $50 million turnover in the 2018-2019 financial year and/or less than 250 employees).

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

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

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

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

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

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

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

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

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

The promise

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

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

The reality in Queensland

Eligibility criteria:

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

Compensation:

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

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

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

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

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

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

One controversial claim is the claim that a firefighter:

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

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

Conclusion

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

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

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

Categories: Researchers

Communicating DNR orders

9 January, 2020 - 09:14

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

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

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

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

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

Robins JA found that she had:

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

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

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

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

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

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

Conclusion

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

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

Categories: Researchers

NSW Tourist Exclusion Zone – advice or direction?

9 January, 2020 - 08:39

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

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

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

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

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

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

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

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

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

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

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

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

Section 37A allows the Minister to

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

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

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

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

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

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

Further (s 24):

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

How was this zone declared?

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

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

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

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

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

It also has no express time limit. It does say

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

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

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

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

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

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

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

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

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

Why does it matter

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

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

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

My view

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

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

Conclusion

To turn to the questions then, my view is:

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

 

 

Categories: Researchers

Further complicating the issue of diverting Facebook donations, and perhaps an ‘out’

7 January, 2020 - 20:02

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

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

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

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

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

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

An interesting issue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And, as another lawyer on the blog said:

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

Interestingly, the article cited above, says:

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

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

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

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

Categories: Researchers

Incorporating general (medical) practitioners into emergency plans

7 January, 2020 - 16:28

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

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

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

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

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

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

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

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

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

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

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

(c) a representative of each organisation that:

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

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

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

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

Participating organisations are (EM Plan [435]):

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

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

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

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

a) Australian Red Cross Blood Service (NSW)

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

c) Peak bodies of Residential Aged Care Services

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

e) St John Ambulance Australia (NSW)

Under supporting organisations [252]) it says:

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

a) Residential Aged Care Services

b) Private Health Facilities

c) Local Governments

f) Medicare Locals

Annex 7 says:

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

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

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

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

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

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

Discussion

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

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

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

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

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

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

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

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

Conclusion

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

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

Categories: Researchers

Extending financial compensation to the SES

7 January, 2020 - 12:21

A correspondent has written and said:

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

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

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

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

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

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

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

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

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

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

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

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

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

Categories: Researchers

Next comes the inevitable inquiry

7 January, 2020 - 10:28

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recommendation 19

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

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

For other related publications see:

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

 

 

Categories: Researchers

Diverting facebook donations

6 January, 2020 - 09:11

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

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

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

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

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

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

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

Ms Barber’s fundraising page says:

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

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

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

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

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

Brigades is defined to mean:

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

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

Paragraph [2.3] says:

2.3 Purpose of Trust

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Further comments on the funding of the RFS

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

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

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

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

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

Spending the donated trust monies

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Categories: Researchers