Reis v State of Queensland (Queensland Ambulance Service) [2021] QIRC 95 contains salutary lessons for paramedics and in fact anyone.

Mr Reis is a paramedic employed by the Queensland Ambulance Service (QAS).  On 14 March 2019 a former patient complained that Mr Reis had contacted her on 2 March 2019. They ‘then proceeded to exchange messages over the following days, some of which were a sexual nature’ ([12]).  Notwithstanding her participation in the text messaging, the patient reported (at [60]) the contact ‘affected the patient more than what she had thought and [she] becomes stressed just seeing an ambulance’.

Mr Reis entered a plea of guilty to the criminal charge of using a ‘restricted computer without consent’ contrary to the Criminal Code 1899 (Qld) s408E(1).  The QAS investigated the matter and was able to confirm that Mr Reis had accessed the electronic Ambulance Report Form (eARF) relating to this patient on 2 March 2019 whilst he was at work.  The QAS alleged

1)         a breach of the Public Service Act in particular ‘Ensuring the employee’s personal conduct does not reflect adversely on the reputation of the public service’ (s 26(1)(k);

2)         a breach of the Ambulance Service Act in particular that he was guilty of misconduct because of ‘inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service’ (s 18A); and

3)         ‘That between 2 March 2019 – 14 March 2019 you used the confidential patient information you inappropriately accessed for a personal benefit.’  

An investigation was commenced, and all the allegations were substantiated. Mr Reis appealed the finding that allegation 3 had been made out and QAS issued a new ‘show cause’ notice with respect to that allegation. Mr Reis was given details of the allegation and invited to respond, after which Deputy Commissioner Deanne Taylor-Dutton found the allegation was made out and recommended disciplinary action.

The rules of ‘natural justice’ require that in such an investigation the first step is to determine if the allegation is made out. The second step is to determine penalty. Having found the allegation proved, it was recommended that Mr Reis’ employment be terminated. Before he addressed that, Mr Reis again took the matter to the Supreme Court alleging various procedural failings. The result is that at the time of hearing, the allegation had been substantiated but as yet no decision has (or had) been made about Mr Reis’ future.

The grounds of appeal were technical relating to how information relating to one allegation could be used when deciding the other. The actual grounds of appeal need not concern us. Suffice to say Commissioner Knight was (at [123]) ‘satisfied the decision was fair and reasonable in so far as it relates to the substantiation of allegation three and any conclusions reached by the Service with respect to grounds for discipline.’

Why this case is important is first, the use made of the Paramedicine Board’s Code of Conduct for registered paramedics.  The decision maker referred to the Code of Conduct. Mr Reis alleged there was an error in that he was not told that the decision maker would rely on the Code. QAS argued (at [57]):

… on the basis of what is expected of registered health practitioners by Ahpra and the Health Practitioner Regulation National Law (Queensland) and the requirement to be aware of and comply with the standards, the Service did not consider it necessary to particularise that which registered health practitioners are required to be aware of and comply with …

Commissioner Knight did find (at [54]) that ‘the reference to a breach of the relevant professional standards of conduct would have been better placed in the original show cause notice’ but that the reference to the Code did not invalidate the decision.

Whilst it is not an essential point – it is what we lawyer would call ‘obiter dictum’ – the decision does remind paramedics that they are expected to know and comply with the Code of Conduct and a decision maker can refer to as part of their decision making even if a specific breach has not been alleged.  

The most important lesson for readers of this blog is to reinforce the obligation to use information that is given for one purpose only for that purpose. The patient gave her name and phone number to Mr Reis so that he could provide health care to her, not so that he could later locate her and send her text messages.   Apart from the consequences for the patient there are now consequences or Mr Reis and his ongoing employment is, at the time of writing, at risk.  No doubt in the very near future a decision will be made about the appropriate penalty.

The Paramedic Observer is reporting that a bill has been introduced to the Victorian Parliament to amend the non-emergency patient transport legislation. You can read the Observer’s full report at https://www.facebook.com/ParamedProf or on my Facebook page at https://www.facebook.com/EburnM.  I won’t repeat the post in full as there is no point reinventing the wheel and Ray (the Paramedic Observer) has done a good job reporting on the Bill’s contents. 

Ray does say:

The Bill updates the NEPT Act 2003 (Act) by making patient safety and quality of care a central tenet of the legislation, strengthening compliance and enforcement of the existing licensing system for NEPT service providers, and introducing licensing and regulation of the commercial first aid sector.

He also says that the Bill:

• restricts the use of the term ‘paramedic’ in business names, titles or descriptions when providing NEPT or first aid services

Comment 1

The restriction on the use of ‘paramedic’ has been the subject of comments on both his and my pages. A comment that captures the discussion says:

The restriction on using the term Paramedic is a joke. Who are they to dictate this? If a service/company has Paramedics then this is not misleading anyone. I’m concerned that they are making this a ‘first-aid’ for events system, and not catering to a higher clinical level offering.

Comment 2

Another comment, via Facebook says:

It would be good for the government to rate event medical companies capacity. With defined levels of cover. From First aider HLTAID003 (old code used to promote understanding) with tackle box (chair optional) to team medical Australia TMA who roll in a prime mover stacked with everything. The reality is resources should be tailored to risk and hazard.

Related posts

I’ll look into the Bill in a bit more detail to address those issues.  Before I do that it is worth referring to previous posts – see

• Regulating first aid services in Victoria (April 17, 2019);
• Report on regulating first aid forum – Melbourne (May 16, 2019); and
• Discussion paper on licensing of first aid providers in Victoria released (July 2, 2019).

The Non-Emergency Patient Transport Amendment Bill 2021 (Vic)

The critical part of the Bill, for this discussion, is the new ‘Part 2A – Licensing first aid service operators’ that will be inserted into the Non-Emergency Patient Transport Act 2003 (Vic) or, as it will be known after the Bill is passed, the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic).

First aid is ‘aid of a medical nature provided to a person experiencing sudden illness or injury’. A ‘first aid service’ is ‘a service of offering or providing first aid in exchange for payment’.  Specifically excluded from the definition of a first aid service is ‘a volunteer first aid association, including any individual who provides first aid as part of that volunteer first aid association’. A volunteer first aid association is:

a group of individuals working together for one or more community purposes that—

(a)        offers or provides first aid in the course of its work; and

(b)       does not charge or expect payment or financial reward for the offer or provision of first aid in any circumstances.

An organisation like St John Ambulance Australia (Vic) depends on volunteers but that does not necessarily make it a volunteer first aid association.  The critical issue is not whether the members are volunteers or not but whether the organisation is offering its services on a voluntary basis that is without charge or expectation of payment. If the service charges a fee, or makes it clear that it expects a donation, that will take it outside the scope of a volunteer association.

Also excluded from the definition of a first aid service is and ‘an individual who encounters by chance a circumstance that appears to require the provision of first aid and who provides that first aid.’  This is a positive step to ensure that no-one should hesitate to provide emergency first aid where that is required for fear that they do not hold an appropriate licence. A person who has done a first aid course can still do first aid.

Use of the term paramedic

A new section 58 will say:

It is a condition of any Part 2 [Non-emergency patient transport] licence or Part 2A [first aid service] licence that the holder of the licence must not use the word “paramedic” or any related name, title or description as part of the title or description of the service.

It is an offence to provide a first aid service without a licence (s 42I(1)) but that does not apply to ‘a person or class of person whom the Governor in Council has declared to be a person or class of person to whom subsection (1) does not apply’.  A provider that employs only paramedics or other registered health professionals, nurses and doctors may well argue that they are providing a paramedic, or nursing or medical service, not a first aid service and are not bound by the licensing requirement. Further the government could recommend to the Governor that regulations are made to exempt paramedics and other registered health professionals from the need to have a first aid licence. If such an argument was successful, or an exemption granted, then the prohibition in s 58 would not apply.

Tiers of service

With respect to a licence, it is to allow the licence holder to provide a ‘particular class or particular classes of first aid service’ (s 42L(2)).  Nowhere in the Bill is there a definition of what the classes are or will be or even who can define the classes.  Section 42V will say:

A first aid service licence is subject to any conditions—

(a)        that are prescribed; and

(b)       that the Secretary imposes on the licence or on the class or classes of service authorised under the licence.

It would appear that the definition of the class or classes of service will be a matter for the secretary to determine as part of setting licence conditions. 

The Review of the Non-Emergency Patient Transport Act 2003 and Regulation and Licencing of First Aid providers: Discussion Paper (June 2019) at p. 25 suggested:

… a three tier licencing system for first aid providers. Suggested terminology for the tiers is:…

Basic Care would be for those providers who only use over-the-counter medications and provide basic first aid…

Intermediate Care would be for more complex first aid provision. The purpose of Intermediate Care includes the stabilisation of patients until emergency ambulance arrives to transport the patient to hospital, or for a friend or family member to drive them to the nearest emergency department. At times, schedule 4 medicines will be appropriate for this purpose…

Advanced Care would cover complex and emergency first aid provision. Administration of schedule 8 medicines is an issue to be considered for the Advanced Care tier…

It could be that the secretary will define the class of first aid services to exclude paramedic and other professional services but that seems unlikely. If one is going to use schedule 8 medication and provide complex first aid, that is likely to involve medical and paramedical practitioners.

It follows that there is both an argument that a service provided entirely by registered health professionals is not a first aid service and there are provisions to specifically exempt such a service from the licensing requirement. It would appear however that such an interpretation was not intended to be applied and the purpose of the scheme is to licence all ‘aid of a medical nature provided to a person experiencing sudden illness or injury’ regardless of the qualifications of the person providing it so whether they hold a first aid certificate or a degree in medicine or paramedicine, if they are going to offer a medical service at an event, they need a licence so it is unlikely the secretary or governor will move to exempt registered health professionals from the scheme, even though they could.

The discussion paper says (at p. 33):

It has been proposed to the department that the use of the term “paramedic” in a company name should be prohibited. This approach would mirror the Ambulance Services Act 1986 that prohibits the use of the words “ambulance service” on vehicles and in company names. It would also help to remove patient confusion or misunderstanding about when a paramedic is actually attending to them. It would be reasonable for a member of the public to assume that if a company name includes the word “Paramedic” and the vehicle has that name written on its side that they will be attended by a paramedic. Such misunderstandings are unhelpful and potentially undermine paramedic practice.

To return to s 58 it does say that it is an offence to use ‘the word “paramedic” or any related name, title or description as part of the title or description of the service’ (emphasis added).  It does not say paramedics cannot be identified as paramedics. It means the service cannot be Emergency Event Paramedic Service. But it does not mean that Emergency Event Pty Ltd (a fictitious company name not meant to refer to any actual event first aid provider) cannot tell potential customers that they can provide paramedics or that the paramedics cannot have the word ‘paramedic’ on their jackets.  It’s more complex to have the word ‘paramedic’ on the vehicle (see Use of the term ‘paramedic’ on an ambulance without a paramedic crew – Victoria (September 28, 2020)) and a first aid service provider (and an NEPT provider) certainly cannot have the word ‘ambulance’ on their vehicle (Ambulance Service Act 1986 (Vic) s 39(1)). 

Discussion comment 1

The limit on the use of the word paramedic is in the title or description of the service. It is true that the legislation is aimed at creating ‘a ‘first-aid’ for events system’ but the proposed tiers do include or anticipate ‘a higher clinical level offering’.  A licensed first aid service cannot be described as either a ‘paramedic’ or an ‘ambulance’ service, but it can be staffed by paramedics who are identified as paramedics. Different providers will be able to distinguish themselves by reference to the class of first aid services they can provide (once those classes are defined).

Discussion comment 2

As noted above the discussion paper anticipated three tiers of service. The Act provides for a class or classes of first aid services permitted under licence. An Act is a directive from the legislative arm of government (the parliament) to the executive arm of government (the Minister, the Department and in this case the secretary) giving broad powers but not setting out the details. The fact that the ‘class or classes’ of first aid services is not defined in the Act is not unusual.    It would appear they will be defined by the Secretary as part of the process of issuing licences rather than being set out in a regulation.

It does mean we cannot know exactly how the system will be develop but we can see from earlier papers that it is intended that the ‘government [will] rate event medical companies capacity’ and that will include:

…defined levels of cover. From First aider HLTAID003 (old code used to promote understanding) with tackle box (chair optional) [basic care] to team medical Australia TMA who roll in a prime mover stacked with everything [advanced care].

Requiring event organisers and first aid service providers to ensure ‘resources …[are] tailored to risk and hazard’ was the intention behind the discussion paper.  How the secretary will give effect to that stated intention once the Act has passed remains to be seen.

Today’s correspondent is, I infer, with the NSW RFS. They say:

Fire trails in our region of NSW go through private, crown, national park and leasehold land. The five fire trails we have are critical to our fire management plan and are very important. Not one of these trails are currently accessible due to erosion and/or fallen timber.

We are a told that if one landholder objects to entry/maintenance during non-emergency conditions then the fire trail cannot be maintained and hence we cannot use it. Therefore because a person might object, it is not worth the effort in identifying all the landholders and asking them. 

We understand there is considerable funds available to be spent fixing and maintaining fire trails and we have the trails to be maintained but is seems bureaucracy and perhaps the law is making it impossible.

Could you please explain the legalities of fire trails in NSW for us?

Part 3B of the Rural Fires Act 1997 (NSW) deals with fire trails. The Act (s 62J) distinguishes between ‘public’ and ‘private’ land. Public land is ‘managed land, unoccupied Crown land, or land owned or occupied by a public authority’. Private land is everything else.  The Commissioner may make Fire Trail Standards to ‘provide standards for fire trails on land throughout the State, and in particular to provide, as far as practicable, practical networks of fire trails’ (s 62K).

With respect to public land the Commissioner may ‘give a direction in writing that a fire trail be established and maintained’ (s 62L).  With respect to private land (s 62M(2)):

The Commissioner may enter into negotiations with the owner of private land for an agreement between the Commissioner and the owner in writing that a fire trail be established on the land …

The Commissioner must not enter into an agreement with the land owner if the owner is not the occupier, for example if the land is leased, unless the occupier (tenant) also agrees (s 62M(9)).

There is to be register of certified fire trails (s 62O), that is fire trails that is a fire trial created due to a direction (public land) or agreement (private land) and that meets the Commissioner’s Fire Trail Standards (s 62N).

Section 62W says:

(1)       It is the duty of the owner or occupier of the land on which a designated fire trail or registered fire trail is situated to construct … and to maintain the fire trail in accordance with the Fire Trail Standards …

(3)       An owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section.

With respect to private land, the obligations imposed by s 62W(1) and (3) that is the obligation to build and maintain, and to meet the costs of building and maintaining the fire trial, can be modified by the agreement between the land owner and the Commissioner.  For example, the Commissioner may agree to maintain the trails or meet the costs of the maintenance (see s 62W(4)).

The Commissioner may carry out fire trail rectification work on unoccupied Crown land or managed land (s 62X).  Alternatively, and with respect to private land, where a fire trail does not comply with the Fire Trail standards, a fire trail management officer can serve a notice requiring the owner/occupier to fix the trail (s 62Y(1)).  The notice has to give the owner at least 28 days to comply (s 62Y(3)). It is a criminal offence to fail to comply with the notice (s 62Y(5)).  ‘If within a reasonable time the person to whom a …notice is given fails to comply with … the notice, the Commissioner may … carry out the required fire trail rectification work’ (s 62ZC(2)). The cost of that work is a debt due to the Commissioner (s 62ZC(3)).

A fire trail is ‘closed’ if (s 62ZG):

(a)        the trail is wholly or partly removed or destroyed, or

(b)        the trail is obstructed so that the trail is not available for use as a fire trail, or

(c)        a sign has been placed indicating that the trail is not available for use as a fire trail, or

(d)        the trail is otherwise not available for proper use as a fire trail.

A person must not close a fire trail (s 62ZI). ‘The Commissioner may carry out all work reasonably necessary to remedy the unauthorised closure of a … fire trail …’(s 62ZH(1). The cost of that work is a debt due to the Commissioner (s 62ZH(2)).  The reference to ‘unauthorized’ closure and that a person must not ‘close’ a fire trail would, in my view, imply that there has to be a positive action to damage or obstruct the trail.  Merely allowing it to fall into disrepair is not an ‘unauthorized closure’.

‘The Commissioner or a member of the Service authorised by the Commissioner may… (a) enter during the daytime any part of land (other than a dwelling-house) that it is necessary to inspect for that purpose, and (b) while on the land, make any reasonable enquiries and do anything else that is reasonably necessary’ for the purpose of deciding:

(a) whether a fire trail is situated on the land or should be established, or

(b) the suitability of a fire trail or proposed fire trail (or a part of it), or

(c) whether a designated fire trail or registered fire trail has been constructed or maintained in accordance with the Fire Trail Standards, or

(d) in particular and without limitation:

(i) whether a registered fire trail does not comply with the Fire Trail Standards in a material respect, as referred to in Division 5, or

(ii) whether a fire trail rectification notice should be served under section 62Y, or

(e) whether fire trail rectification work should be carried out under Division 6, or

(f) whether registration of a fire trail should be terminated.

Conclusion

That is a lot of quoting to set out the position, but it does allow an answer to the question asked. I will limit this answer to private land.

First, it is clearly NOT correct ‘that if one landholder objects to entry/maintenance during non-emergency conditions then the fire trail cannot be maintained and hence we cannot use it’.

An RFS brigade cannot simply enter private land to maintain a registered fire trial. An authorised member of the RFS may enter the land to inspect the trail, but they need the landholder’s permission to actually bring equipment on and conduct work on that land. Absent that permission a fire trail management officer can serve a notice requiring the landholder to fix the trail.  If they do not comply with the notice within a reasonable time, then the Commissioner can authorise the rectification work and the cost of the work is a debt due to the Commissioner.

All of this is subject to the terms of any registered agreement between the Commissioner and the landowner; so the first and most important step is to identify if the trails in question are indeed listed on the register and to see what are the terms of any agreement.

If the fire trail has been deliberately closed, then the Commissioner can take any steps necessary to re-open the trial.

Today’s correspondent writes from Victoria and I infer that the question relates to an ambulance service, but which one is not identified.  My correspondent says:

There has been some discussion recently on a policy in Victoria by a service that has been directing crews to upgrade to lights and sirens driving based on KPIs and meeting time frames instead of changes in the patient’s acuity that would warrant such upgrades.

Crews are allegedly being told if they refuse to upgrade based on time frame only (non-change in clinical acuity that would normally be designated a code 2, 3 or 4 but now upgraded to code 1 base on time frame) that they are refusing a lawful direction and are facing disciplinary action.

One of my colleagues raised the Road Safety Road Rules 2017 (Vic) r 306 Exemption for drivers of emergency vehicles [which says]:

A provision of these Rules does not apply to the driver of an emergency vehicle if

(a)            in the circumstances—

(i)             the driver is taking reasonable care; and

(ii)            it is reasonable that the provision should not apply; and

(b)            if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

I know each case is different and you can’t provide specific advice, but I wanted to get your insights into the direction to upgrade to light and sirens driving based on KPI or resourcing (not changes in clinical acuity) and the lawfulness of such a direction in relation to Section 306(a)(ii) and the term ‘reasonable’.

I would also like to gain your thoughts into if a Coroner’s report (Healesville 2006) and recommendations change how reasonable may be interpreted in this this part of legislation within the context of the Coroner’s Report.

I guess the question becomes in the absence of a test in court, is it the employer or employee that determines what is reasonable in driving lights and sirens?

I infer that the reference to a Healesville Coroner’s report is a reference to the inquest into the deaths of two paramedics in 2004.  I cannot find a copy of the Coroner’s report but it is reported in the article ‘Speed caused fatal ambulance crash, coroner finds’ ABC News (Online) 16 February 2006.  Without access to the actual report I cannot comment on the Coroner’s findings or what it might mean to the issues raised.

Road rule 306

My correspondent has correctly identified that the exemption from the Road Rules is found in r 306.  Further, rules 78 and 79 impose obligations on other road users to give way to, and make way for, emergency vehicles with their red/blue warning lights and/or siren activated.

Critical to r 306 is the definition of ‘emergency vehicle’.  In Victoria, relevantly, an emergency vehicle includes (r 4 and Dictionary, definition of ‘emergency vehicle’):

(a)        a vehicle operated by or on behalf of and under the control of—

(i)        an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act

Compare this to the definition adopted in New South Wales. In that state the relevant definition says that an emergency vehicle is a vehicle driven by an emergency worker who is ‘driving the vehicle in the course of his or her duties as an emergency worker’.  An emergency worker (in NSW) includes ‘a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency …’  In NSW whether a vehicle is or is not an emergency vehicle depends both on the status of the driver and the presence of an ‘emergency’. 

In Victoria it is the status of the vehicle, that it is ‘operated by or one behalf of’ an ambulance service, not the status of the driver that is crucial (and see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)). And in Victoria the definition does not say that it has to be operated during the course of or when responding to an ‘emergency’.

Emergency

What is an ‘emergency’ is not relevantly defined. The issue did arise in the matter Wells v R [2017] NSWCCA 242, a case involving a multi-vehicle fatal accident caused when the driver of a NSW RFS activated his red/blue lights and entered a multi-lane motorway. At the time the driver was returning to a scene of an earlier call-out to collect the crew – details of the facts can be found in the posts Further prosecution over fatal RFS accident (August 17, 2016) and Further prosecution over fatal RFS accident (Part 2) (August 21, 2016). I report on the decision of the Court of Criminal Appeal in the post Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).

In the Court of Criminal Appeal on the question of what is an ‘emergency’, Button J said:

… I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules.

That is of course a decision of a NSW court, it is not binding in Victoria where the definition of emergency vehicle is different. In that case it was held that at the time of the accident the RFS appliance was not an ‘emergency vehicle’ and therefore could not enjoy the benefit of rule 306.  There is no direct application to Victoria but I would think that a Victorian could would be influenced by the reasoning in questioning whether it was reasonable, in Victoria, to rely on r 306 except in circumstances where there was ‘some aspect of urgency’. 

Murray v McMurchy [1949] 2 DLR 442 was a Canadian case, dealing with a surgeon who was performing a caesarean section. During the procedure he observed that the patient had a tumour and further pregnancies would be life threating.  He therefore permanently sterilised her.  He informed her of what he had found, and done, when she came out from the anaesthetic. She was not pleased and sued for assault.  The doctor argued that the procedure was warranted as an emergency.  The court said (at [5]): “There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case” but for that doctrine to apply the action taken must be (emphasis added) ‘necessary, as opposed to being convenient, for the protection of the life …’ (see [3]).  Whilst not directly applicable to driving, the trial judge in the Well’s case found that when making the u-turn the driver was acting for ‘convenience’ ie to shorten the trip to return to collect the crew, and not out of any necessity to take action to save a life or otherwise respond to an emergency that was occurring on the other side of the road.

Similar reasoning would be applicable in the scenario under discussion. If the direction to use lights and sirens was to improve response time eg to get a patient to the hospital quicker in order to clear for the next case in order to improve KPI’s, that may be a matter of ‘convenience’ rather than necessary. On the other hand one could argue if there are banked up cases, getting ambulance to clear (assuming they are not caught up with hospital ramping) in order to respond to the waiting cases may have the requisite degree of urgency.  One can see that the issue may well turn on what is meant by ‘driving based on KPI or resourcing’.

Who determines what is reasonable?

I have addressed this in an earlier post – see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016).  In that post I list the people who have to make a determination. I suggested that the relevant order was:

1. The agency;
2. The driver;
3. The police;
4. A magistrate; and
5. In rare cases, an Appeal court (the District or County Court, the Supreme Court, a Court of Criminal Appeal (depending on the jurisdiction) and finally the High Court of Australia.

Where I say the agency my argument is that the agency should have an emergency or response driving policy that will indicate when they expect a driver to ‘respond’ to the call. If the driver is dispatched to the call and is responding, then:

If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

It does not mean that an agency can determine anything, in particular matters of convenience to the service rather than actions ‘necessary… for the protection of the life’ constitute an emergency.  The service’s policy is not immune from scrutiny if someone wants to argue that it was not reasonable that r 306 should apply even if the service says that it is. 

Having been given a policy – this is when we accept it’s reasonable to use lights/sirens – the next judge is the driver. The driver’s principal job is to not crash the vehicle. Nothing ruins response time more than a collision and a collision exposes everyone to a serious risk of harm or death. No emergency justifies killing innocent road users, the patient or colleagues.  It is up to the driver to determine what is reasonable and what he or she is prepared to accept.  The driver is the ‘pilot in command’ and ultimately no-one can tell the driver to go, to speed up or to take any other risk. It may be that if a member of an emergency service refuses to ever use the lights and sirens or to take any action to speed up their response that they are not suited to the job and should not be the driver of an emergency vehicle. It may be that there are internal matters including action for not being able to perform an essential aspect of the job, but from a road rules perspective, it is always up to the driver – and always the driver’s responsibility – to determine what is appropriate in the particular circumstances.

Occupational Health and Safety

Fundamentally this is a work health and safety issue. Under both the Occupational Health and Safety Act 2004 (Vic) as well as the model work health and safety legislation an employer or PCBU (respectively) ahs to take steps to protect others – patients and other road users – as well as employees or workers from risks from their work. Driving under emergency conditions is very risky. To satisfy any test that it is reasonable it has to balance that risk against the benefit to be achieved. We accept that when ambulances respond to emergency cases and fire brigades turn out to fires.  There speedy response may save lives.  Once paramedics have arrived and started life support, there may be less need for an ‘urgent’ response to hospital, and fire brigades are not responding to an emergency when returning to collect a crew. 

If my correspondent thinks the directives referred to are not justified by the patient’s condition, then it is a matter of the policy exposing them and others to unacceptable risk. The appropriate response would be to raise the matter through the occupational health and safety consultation arrangements.

Conclusion

The ultimate question was ‘in the absence of a test in court, is it the employer or employee that determines what is reasonable in driving lights and sirens?’ The answer has to be ‘it’s both’.

In the first instance an employer has to have a reasoned, risk assessed policy as to when it’s reasonable. If a driver operates outside that policy, in circumstances where the employer does not think the use of lights and sirens is reasonable, then the driver is going to have a difficult time convincing a Magistrate that r 306 should apply (difficult but not impossible, depending on the facts).

Regardless of the policy the driver has to decide, in each particular case, taking into account not the policy (written in the abstract) but the very circumstances – the traffic, the weather, the patient’s condition, the distance to be travelled etc – whether it’s ‘reasonable’ to take the extra risks. Accordingly, if there is a policy that lights and sirens should be used in particular circumstances, a refusal in some cases eg because of the road conditions or prevailing traffic, could not be questioned, but a blanket refusal may be a failure to comply with a ‘reasonable’ direction. It really then turns to exactly what the policy says, why it says it and how the risks to other road users has been balanced against the needs of the patient.

It would be my view that if the policy was really being implemented ‘for the convenience’ of the service – to meet KPI’s – then a court would not accept there was any need for the exemption and r 306 would not apply, nor would a tribunal accept that it was a ‘reasonable’ direction. No doubt a service would not accept that was the motivation and if it was say implemented during peak and unusual demand because even though the patient on-board was not urgent, other urgent cases were waiting, a court may accept that had sufficient nexus to an emergency that it was reasonable both to apply r 306 and to expect staff to apply the policy.  As is always the case, the outcome in any particular case would depend on all the circumstances and the motivation of those giving the direction.

For another, related post, see Is it an emergency? Does it have to be for Victoria’s road rules? (June 12, 2017).

I have received some details about a person’s detention under a Queensland Emergency Examination Authority (EEA).  I won’t go into the details as I cannot give specific legal advice but there were some points that I can address.  I’m told:

… I believe that I was unlawfully detained from my home under a supposed EEA which I have not seen. I was not told about my rights nor initially what an EEA was as the police entered my home. … I was not told about an independent patient rights advisor. There was nothing wrong with me and [I] was sent home by the hospital in a cab … Certainly no “major disturbance in my mental capacity” or any “risk of immediate harm”…How can a person challenge this when it is thrust upon them?

The law

Sections 157B to 157E of the Public Health Act 2005 (Qld) say (relevantly):

157B AMBULANCE OFFICER OR POLICE OFFICER MAY DETAIN AND TRANSPORT PERSON

(1)        This section applies if an ambulance officer or police officer believes—

(a)        a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b)        the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c)        the person appears to require urgent examination, or treatment and care, for the disturbance.

(2) …

(3)        The ambulance officer or police officer may detain the person and transport the person to a treatment or care place…

157C WHAT AMBULANCE OFFICER OR POLICE OFFICER MUST TELL PERSON

(1) The ambulance officer or police officer must—

(a)        tell the person that the officer is detaining the person and transporting the person to a treatment or care place; and

(b)        explain to the person how taking action under paragraph (a) may affect the person.

(2)        The ambulance officer or police officer must take reasonable steps to ensure the person understands the information given under subsection (1), including by telling the person or explaining the thing to the person—

(a)        in an appropriate way having regard to the person’s age, culture, mental impairment or illness, communication ability and any disability; and

(b)        in a way, including, for example, in a language, the person is most likely to understand.

157D GIVING EMERGENCY EXAMINATION AUTHORITY

(1)        If the ambulance officer or police officer takes the person to a treatment or care place that is a public sector health service facility, the officer must immediately make an authority (an “emergency examination authority”) for the person.

(2)        The authority must—

(a)        be in the approved form; and

(b)        state the time when it is given.

(3)        The person may be detained in the treatment or care place while the authority is being made.

(4)        Immediately after making the authority, the ambulance officer or police officer must give the authority to a health service employee at the treatment or care place.

157E DETENTION IN TREATMENT OR CARE PLACE

(1)        A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4)…

157F EXAMINATION

(1)        A doctor or health practitioner may examine a person subject to an emergency examination authority to decide the person’s treatment and care needs.

(2)        Also, a doctor or authorised mental health practitioner may examine the person to decide whether to make a recommendation for assessment for the person under the Mental Health Act 2016.

A person who is the subject of a recommendation for assessment under the Mental Health Act may be detained for up to 24 hours and depending on the outcome of the assessment, subject to involuntary treatment. The Mental Health Act 2016 (Qld) s 25(3) says:

The health service chief executive responsible for a public sector mental health service must appoint 1 or more independent patient rights advisers to advise patients and their nominated support persons, family, carers and other support persons of their rights under this Act.

The functions of an independent patient rights adviser are set out in s 294.  Other provisions on the rights of patients are out in ss 280 to 290.

The process

One can see there is a process.

1. The person is observed by an ambulance or police officer who forms the view that the criteria set out in s 157B(1) exist.
2. The police or ambulance officer decide to detain and transport the person.
3. The police or ambulance officer must give the information required by s 157C.
4. On arrival at the health facility, the police or ambulance officer complete and Emergency Examination Authority and hand that to the health service staff.
5. The person may then be detained in the facility for not more than 6 hours.
6. The person may be examined by a medical practitioner and treated or referred for assessment under the Mental Health Act.
7. If an assessment is recommended under the Mental Health Act they can be detained for up to 24 hours and are subject to the provisions of that Act.

Discussion

When set out in that order issues with my correspondent’s question resolve.

First when police or ambulance officers attend a person’s home and make the decision to detain and transport them, they are not detaining them under an Emergency Examination Authority (EEA).  Their authority at that point is found in s 157B. My correspondent’s first point ‘that I was … detained from my home under a supposed EEA which I have not seen’ is wrong.  At that point there was no EEA.  An EEA is completed when the patient is delivered to a health facility. It is an authority from the ambulance or police officers addressed to the health facility and it allows the facility to continue the person’s detention.  Unlike a warrant there is no obligation to show the EEA to the person as it is not an order or authority directed to them, it is addressed to the health facility.

Detention under s 157B is not an arrest. When police arrest a person, they are obliged to caution them and if not immediately then at the police station advise the person of their rights (Police Powers and Responsibilities Act 2000 (Qld) Chapter 15).  Given this was not an arrest under that Act, those provisions don’t apply.

With respect to an ‘an independent patient rights advisor’ that role exists under the Mental Health Act. If a person is not detained under that Act, then that is not relevant, and it should be noted that steps (1) to (5) are not made under the Mental Health Act. A person may be detained under the Public Health Act for reasons other than mental illness, for example their ‘behaviour … [which] indicates the person is at immediate risk of serious harm’ may be due to a head injury and what they require is neurosurgery not mental health care.  If no recommendation for assessment or order for detention under the Mental Health Act is made, there is no role for the ‘independent patient rights advisor’. 

One can never be an accurate judge in one’s own cause. An assertion by a perron that there was ‘nothing wrong with me’ and they did not pose a threat to their own safety has to be considered carefully if the person who rang triple zero and the police and ambulance officers in attendance all thought that there were grounds for concern.  But even so, positions can be abused and some may take action to ‘cover their butt’ rather than because they believe the grounds are made out, so ‘How can a person challenge this when it is thrust upon them?’

The answer is of course that it is very difficult to challenge it at the time. Police and ambulance officers who think they are justified in detaining a person under s 157B are unlikely to delay that whilst the person calls their lawyer and then makes an urgent application to the local Supreme Court duty judge.  That is an option, but not very practical.

One should not attempt to resist any more than one should resist arrest. That simply escalates matters. The best option is to cooperate, make the case to the examining doctors that detention is unwarranted and then challenge the action by way of a claim of assault and/or false imprisonment or a complaint about the conduct of the officers if there was insufficient evidence to justify their findings.  This is not an immediate solution but unfortunately the law and its processes are not good at immediate solutions.  There are processes of review built in, the ambulance and police officers can detain a person but then it is up to a medical practitioner to further assess the person and, if they are detained under the Mental Health Act there is further review by the Mental Health Review Tribunal.

Conclusion

For my correspondent, now at liberty, their only recourse would be to make a complaint about the conduct of the police and/or ambulance officers and/or sue for battery and false imprisonment.  We cannot know, because we have no facts, whether any such complaint or action would succeed. The critical issue is that detention under the Public Health Act is:

1.         Not the same as an arrest;

2.         Not the same as detention under the Mental Health Act (though it may lead to that); and

3.         An EEA is an authority given to a receiving health facilyt by paramedics authorising a person’s further detention.  A person detained by ambulance or police officers under s 157B are not detained under an EEA so there is, at that time, no EEA to ‘show’ the person.

For related posts see:

• Paramedics and the mentally ill – Queensland – An update (October 14, 2019); and
• In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’? (August 6, 2020).

Today’s correspondent has a question about the use of the Ferno pedi-mate by a jurisdictional ambulance service. Details of the device can be found here: http://www.ferno.com.au/Ferno/media/Image-Slides/Ferno/Instructions/Ferno-QR-Pedi-Mate-Operators-Instructions.pdf.  The Operator’s instructions say:

The Multi-Stretcher Pedi-Mate is designed to secure infants and toddlers from 4.5 kg to 18 kg. It can be securely attached to a wide range of cots without the need to attach to specific mount points.

The Pedi-Mate is for professional use by one or more trained operators. It is designed for use only in an emergency setting and only by suitable trained personnel. Where child restraint is needed outside of this setting, the transport vehicle should be fitted with restraints in accordance with applicable local standards and regulations.

My correspondent says that the jurisdictional ambulance service has issued guidelines that ‘state that newborns of any weight should be restrained and only need to be swaddled to fit comfortably within the restraint’. My correspondent feels ‘uncomfortable using the pedi-mate outside of design specifications.’  I am asked:

Can the ambulance service instruct / encourage its employees to use a safety restraint device outside of its safety specifications?

I have deliberately avoided identifying the ambulance service in question and have not asked for the issued guidelines as I don’t want to get into specifics. This is going to be general principles only.

In my view the relevant legislation to consider is the Work Health and Safety Act and I’ll use as my reference the model Act as published by WorkSafe Australia rather than the Act as passed in any particular jurisdiction. The primary duty of a person conducting a business or undertaking (a PCBU) is to provide, so far as is reasonably practicable, systems of work that are safe for workers and those affected by the work (s 19(1) and (2)). In the context of an ambulance service that must include ensuring, so far as is reasonably practicable, that the systems of work and the use of plant (which includes ‘any machinery, equipment, appliance, container, implement and tool’ (s 4)) is safe for patients.  

Arguably the use of the pedi-mate for children who weigh less than 4.5kg is not safe as it is outside the manufacturer’s recommendations; but we’re not sure (at least from the owner’s manual) why or how the manufacturer determined that weight limit. What will determine whether the PCBU’s directions are reasonable is the risk assessment the PCBU carried out, ideally in consultation with the manufacturer. Section 18 of the Act says that what is ‘reasonably practicable’

… in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(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.

The pedi-mate says it is suitable for children that weigh 4.5kgs or more. The WHO Weight for Age charts shows that 50% of girls are expected to reach 4.5kgs at 5.5 weeks old. 97% are expected to have reached that weight at 4 months old.  3% of girls will weigh more than 4.5kgs at birth. For boys, 50% will weigh 4.5kg at 4.5 weeks, 97% at 9 weeks and again 3% will exceed 4.5kgs at birth.   Let us accept there is a risk in carrying children under 4.5kgs in the pedi-mate. What can the ambulance service do that is ‘reasonably practicable’?

The ‘normal’ way to manage the risk is to restrain a child in approved child restraint. There are issues for a PCBU/ambulance service. It would be impracticable to put a child restraint in every ambulance given the amount of room that they take up and whether there are appropriate ways to secure them. It is also complicated by the very nature of ambulance work and the fact that the child may be subject to intensive medical intervention that could not be delivered in a normal child seat. Given that 50% of children weigh 4.5kg at 5.5 weeks, that some neo-nates will be carried in other equipment (eg humidi cribs etc) the number of times that a child under that weight will have to be carried will be relatively low but certainly not never given ambulance services transport sick children so that may mean more of them will be in the lower weight scales.  Carrying a child who weighs less than 4.5kg may not be ideal but it may be that people expert in ergonomics and the manufacturer are satisfied that where a child is ‘swaddled to fit comfortably within the restraint’ that reduces the risk to a level that is as low as is ‘reasonably practicable’.

It has to be remembered that the WHS Act does not require, nor could it require, risk be reduced to zero. It requires that risk is reduced as far as reasonably practicable taking into account the factors listed in s 18.  The question is, and would be if a child was injured in an accident were they were not restrained by the pedi-mate, ‘did the PCBU undertake the sort of risk assessment required by s 18?’  If they did then they have met their duty. 

Conclusion

What follows is that a PCBU can give the sort of directions referred to here.  Whether the risk assessment behind the conclusion that ‘newborns of any weight should be restrained and only need to be swaddled to fit comfortably within the restraint’ was satisfactory is a matter to be judged in all the circumstances. If a person does think that the decision was unreasonable, they would need to point to another ‘reasonably practical’ risk mitigation measure that the PCBU should adopt (or, in the event of a prosecution, should have adopted: Kirk v Industrial Relations Commission [2010] HCA 1).  If my correspondent is concerned about the risk assessment process, then it should be raised via the relevant Work Health and Safety consultation processes adopted in their workplace. One would expect that the PCBU could point to evidence, and advice received, to confirm that the direction is based on an appropriate risk assessment.

Today’s correspondent is interested in my:

…  advice regarding providing a caution to an individual who is believed to have breached the Rural Fires Act 1997 (NSW) or the Protection of Environment Operations (Clean Air) Regulation 2010 (NSW) (‘the PoEO Regulation’).

Both the Rural Fires Act and the PoEO Regulation contain criminal offences, for example under the Act it is an offence to light a fire on another person’s land (s 100(1)) or to leave a fire before it has been extinguished (s 100(2)).  Under the PoEO Regulation it is an offence to set certain fires without an approval (r 12) or to set a fire without taking whatever ‘practicable means as are necessary to prevent or minimise air pollution’ (r 10(1)).   My correspondent says:

A very regular occurrence for RFS volunteers is to be called to a fire where there is potentially a breach of the RF Act, the POEO Reg, or both.

Some guidance that has been (verbally) provided from staff is that those on scene should make enquiries of those they may encounter at such incidents, such as “did you light this fire”, “can I have your details or some identification”.  The objective appears to be that whatever is said to the volunteer would later form part of a witness statement in the event of a prosecution by the respective agencies or Police.

The question then arises, are RFS volunteers, in making inquiries of individuals who are suspected of committing a criminal offence (in the case of the RF Act), or a civil offence (in the case of the POEO Reg), obliged to issue a caution similar to Police to the effect that anything said may be later tendered as evidence in court?

(I’m not sure what is meant by a ‘civil offence’. The PoEO regulations provides for criminal offences. They are not ‘civil offences’ just because they are in a regulation, but nothing turns on that).

The legislative basis for a caution

The Evidence Act 1995 (NSW) s 138 says, in effect, that evidence that is illegally or improperly obtained should not be used against an accused person. There are exceptions but we need not concern ourselves with those. Section 139 says that an admission is improperly obtained if an ‘investigating official’ did not, prior to any questioning, ‘caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’.

An ‘investigating official’ is (s 3):

(a) a police officer …, or

(b) a person appointed by or under an Australian law … whose functions include functions in respect of the prevention or investigation of offences.

Authorised officers under the Rural Fires Act can demand a person’s name and address (s 131A) and can issue a penalty notice (s 131) ‘if it appears to the officer that the person has committed a penalty notice offence’.   I will assume that an authorised officer is an ‘investigating official’ but that does not include most RFS volunteer firefighters (see the comments below). In this post I am talking about volunteers who are not ‘authorised officers’ or fire investigators.

If that’s correct an RFS volunteer does not have to issue a caution;  but there is more to it than that.

Exclusion of admissions where the use of the admission would be unfair.

Normally a witness gives evidence of what they saw and heard. If the witness heard another person say something, they cannot give that evidence; for example, evidence from a witness that ‘I heard Bill say “Mary broke the window”’ cannot be used as evidence that Mary broke the window. It is hearsay evidence and proves nothing about Mary.  An exception to the hearsay rule is an admission. An admission is something that someone says about themselves and incriminates them in the offence.  A witness cannot give evidence ‘I heard Bill say “Mary broke the window”’ but the witness can give evidence ‘I heard Bill say “I broke the window”’.  That is evidence that can be used in Bill’s trial to prove that Bill broke the window. It is an exception to the rule against hearsay evidence.

The Evidence Act 1995 (NSW) s 90 says

In a criminal proceeding, the court may refuse to admit evidence of an admission … if … having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

If a person comes to a firefighter who has turned up at a fire and says ‘Mate, I’m sorry, I lit the fire and it got away from me’, then the firefighter could give evidence of that statement and it could be used as evidence that the person did in fact light the fire. Nothing unfair in that. There is also nothing unfair in giving evidence of what someone says in response to a question, so if a firefighter asks ‘what happened here?’ and the person makes an admission that would, in most cases, not be unfair.

But a person does not have to make an admission or answer any questions and that is why they are cautioned during official investigation. There have been cases where people have made it clear to police that they do not wish to answer any questions, so police have ‘gone undercover’ or used others to gain the alleged offender’s trust in order to record an admission. The courts have held that that practice is ‘unfair’ because it’s a deliberate attempt to ‘get around’ a person who is exercising their rights (see R v Swaffield [1998] HCA 1; Em v The Queen [2007] HCA 46).

The scenario posited is not that extreme. It is not suggested that the situation is one where the police have tried to interview a person, they have declined to be interviewed so the police ask an RFS volunteer to buddy up to the person and ask questions the police want to ask, and which the accused has refused to answer.  But even so, giving the advice ‘that those on scene should make enquiries of those they may encounter … [so] that whatever is said to the volunteer would later form part of a witness statement …’ is to put volunteers on notice that they are asking questions for the purpose of collecting evidence, not just to find out what happened to inform their response. That is something they know but the person who they are asking does not know. If the person being asked the question did know that they were being asked that question in order to gather evidence to be used against them they may chose not to answer.  The RFS volunteer may not need to issue a caution as they are not an ‘investigating official’ but if they are asking questions with a view to putting whatever is said in a statement for the prosecution, I would argue that would be obtaining an admission in circumstances that would make it ‘unfair’ to use the admission, and if I was the accused’s lawyer, I would ask the judge to exclude that evidence under s 90.

Conclusion

A volunteer firefighter who is not an ‘authorised officer’ can give evidence of admissions that are made to them. Admissions may be made by people who spontaneously volunteer information or who are responding to questions. 

But where an RFS volunteer is deliberately asking questions to try and elicit an admission, then they know something the person they are asking does not. They understand that they will report the answers in a witness statement and maybe in oral evidence in any contested hearing. The person who is being asked the question does not know that.  That is why police and other investigator’s give a caution- so the person being questioned understands why the questions are being asked. Even though an RFS volunteer is not required by s 139 to administer a caution, I would argue that asking questions where you have been advised to do so, or order to collect evidence, and where the person you are asking does not know that, could make the use of the admission ‘unfair’. That is not however an issue that volunteer’s need overly concern themselves with, that would be a matter for the lawyers and the judge to determine.

Today’s correspondent has a question:

With regard to mandatory notifications and impairment of Paramedics.

Can an employer/ambulance service prejudice a legal case (e.g. wrongful dismissal/unfair dismissal/workers compensation) by reporting an employee or past employee who they believe is impaired and unable to work as a Paramedic professional? E.g.  A Paramedic is unfortunately injured at work.  They are recovering from their injuries, but the service is concerned the paramedic cannot complete their duties (at least for the next 12-24 months) to an acceptable standard on account of multiple injuries. 

Can notifying a perceived impairment of a practitioner be considered vexatious and used in legal proceedings for damages etc?

I’m not sure if the use of the word ‘can’ is meant to mean ‘can they’ in the sense ‘are they allowed to’ or ‘may they …’ or does it mean ‘can they prejudice a legal case by making a report’ as in will such a report prejudice those other proceedings. I’ll try to answer both.

A practitioner is required to notify the relevant authority in their jurisdiction if they are aware that another practitioner has engaged in notifiable conduct (Health Practitioner Regulation National Law s 141). Notifiable conduct includes ‘a registered health practitioner… (c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’ (s 140).   Impairment (s 5):

… means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect—

(a)        for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession…

An employer of a registered health practitioner is also required to make a notification regarding an employee’s conduct (s 142).  If there is a finding that the practitioner does have an impairment, the relevant tribunal can impose conditions on the practitioner’s registration and in the most extreme case, suspend the practitioner’s registration (s 191).

The critical issue is that the report is mandatory. The employer, or a senior paramedic in a management position have no right to withhold a report if they believe the circumstances exist, that is that the practitioner is ‘placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’. It is irrelevant that there are other proceedings on foot.  So if the question is ‘may they make that report if there are other proceedings on foot?’ the answer is not only may they, they must.

Will that influence those other proceedings? I would not think so, Hearings are not by surprise. People make claims and put evidence before tribunals. If there was a ‘wrongful dismissal/unfair dismissal/workers compensation’ claim on foot, it would be well known that the issue involves the paramedic’s capacity to perform their task. The fact that there has also been a report made under the Health Practitioner Regulation National Law is likely to be irrelevant but equally raise nothing that is not already being raised.

I think the more interesting issue is to return to the definition of ‘notifiable incident’. To repeat the definition, it is that ‘a registered health practitioner… [is] placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’.  There is no obligation to report a paramedic’s impairment, unless it is impacting on the practice of their profession. An employer who is managing an employee’s return to work may well have options to give the employee duties that do not involve practice, or which limit the employee’s practice such that their illness or injury does not put the public at risk.

The issue may arise if an employee resisted those restrictions, eg if the employee argued they were fit for duty and the employer does not believe that to be the case. In those circumstances referral may be quite useful. It would allow a panel, appointed by the Board, independent of the employer and the paramedic, to make a determination. If they found there was an impairment and imposed conditions on the paramedic’s registration, everyone would be bound by that finding. The paramedic could not practice, and the employer could not expect or require, the paramedic to practice contrary to those conditions. If the Panel found no impairment that would be significant but may not determine the matter. It may be that an employer would still want to restrict duties under their Work Health and Safety obligations. For example, if the allegation is that the paramedic’s PTSD is an impairment, a panel may find that they are not currently impaired. An employer does have duties not to expose their employee to unreasonable risk. It may be that, whilst they are not currently impaired, if they return to full duties they will again be exposed to traumatic events and their impairment will return.

The issue may also arise if an employer is managing an employee’s return to work with limited duties when they discover the employee is working a 2nd job without restrictions. That may well inspire the first employer to seek to terminate the employee’s position and may also make them feel that they need to make a report to the relevant authority.  If the employee sought a remedy for unfair dismissal the report would not add anything new and would probably be irrelevant.

Where a report may be relevant would be if the employer really did believe that their employee was practising with an impairment that was putting the public at risk and the employee failed to abide by restrictions or accept alternative duties. In those circumstances the employer dismisses the employee who then lodges an unfair dismissal claim whilst practising with a private provider. In that case if the employer DID NOT file a report, the employee’s lawyer may well seek to rely on that to show that the employer does not really believe that the grounds for the dismissal really exist. In that case the employer would have another reason to make the report but that also doesn’t change the position that if they do believe the paramedic is impaired, they must make the report even if it also supports their case. That does not make the report ‘vexatious’.

A report would only be considered vexatious if it was indeed vexatious that is ‘brought without sufficient grounds for winning, purely to cause annoyance to the defendant.’  If a report was made where the person making the report did not believe that the notifiable conduct exists but in order to get some forensic advantage, that would be vexatious.  If that was the claim, it could be tested in any hearing where it was relevant. If on the other hand, the person making the report believed that the paramedic had engaged in notifiable conduct then they are obliged to report it regardless of any consequences it has in other related proceedings.  That is not vexatious even if by some process it harms the employee’s position.

Conclusion

To rephrase the questions:

May an employer/ambulance service report a paramedic for impaired practice whilst there are related proceedings (eg unfair dismissal/workers compensation) on foot?

The answer to that question is that if the employer or senior paramedic honestly believes that the paramedic is ‘placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’ then they are required to make a report, regardless of the consequences for those other proceedings.  Not only ‘may’ they lodge a report, they must.

The alternative question is:

Would an employer/ambulance service prejudice a legal case (e.g. wrongful dismissal/unfair dismissal/workers compensation) by reporting an employee or past employee who they believe is impaired and unable to work as a Paramedic professional?

I don’t see how the report would prejudice the other proceedings. The facts and supporting evidence that support the report would be known to all the parties and to the extent that they are relevant they will be put before the tribunal hearing the proceedings. The presence or absence of a report is unlikely to be relevant.

A report will be vexatious if it is filed to gain an advantage where the person making the report does not really believe that the paramedic is impaired.

I thank Tom Kiat, Industrial officer with the Australian Paramedics Association NSW for drawing my attention to the decision in Australian Paramedics Association (NSW) v Health Secretary in respect of NSW Ambulance [2021] NSWIRComm 1016. The case involved a paramedic who was took three weeks leave during a 9 week roster.  Commissioner Murphy said (at [4]-[9]):

The facts of the matter are not in dispute. Over the period of the 9 week roster cycle at Morisset Ambulance Station, officers would normally be rostered to work a total of 342 ordinary hours or an average of 38 hours per week. This would occur if an officer worked sequentially through the 9 roster lines regardless of which roster line the officer commenced on at the beginning of the 9 week roster cycle. However, this did not happen with respect to Mr Duddy during the 9 week roster cycle which began on 27 October 2018…

Mr Duddy worked a combination of 12 hour and 12 hour 15 minute shifts. He commenced the 9 week cycle on roster line 6 and worked through roster lines 7 and 8 before proceeding on a block of 3 weeks’ annual leave. However, instead of returning from annual leave on roster line 3, which would have been the next roster line in sequence, he returned on roster line 5 and then worked roster lines 6 and 7 to the end of the 9 week cycle, due to another officer at the station taking annual leave for the last three weeks of that roster cycle. This is known colloquially as a “line switch”.

Had Mr Duddy returned from his 3 weeks of annual leave onto roster line 3, the total hours he would have been rostered to work for the last 3 weeks of the 9 week roster cycle would have been 24.50 (week 7), 36.50 (week 8) and 48.75 (week 9) or a total of 109.75 for that 3 week period. Instead, the hours he actually worked were 48.75 (week 7), 48.75 (week 8) and 49 (week 9) or a total of 146.50 for that 3 week period, 36.75 hours more than if he had returned from his annual leave on roster line 3.

Further, if Mr Duddy had not taken annual leave during weeks 4, 5 and 6 of the roster cycle… his total working hours for the 9 week roster cycle would have been 378.75 or 36.75 hours more than the normal rostered hours of 342 for the 9 week cycle. It was conceded by Mr Easton, counsel for the respondent, that, if this had occurred, Mr Duddy would have been entitled to have been paid overtime for the hours worked in excess of 342.

Mr Duddy did not work longer than his rostered hours on the days he worked, but he was rostered for more hours than he would have been had he not taken leave. The issue was whether Mr Duddy was entitled to overtime for those extra hours worked.  

The ambulance service had argued (at [10]):

… the practice had been that, when an officer returned from a block of annual leave onto a non-sequential roster line and, as a result of switching lines, worked additional shifts, as occurred with Mr Duddy, that officer was not paid overtime for working those additional shifts. Conversely, when an officer worked less shifts than would otherwise have been worked as a result of switching lines, the officer was still paid as if he or she had worked the normally rostered number of shifts. This arrangement was described in an email dated 3 October 2019 from Mr John Papas, Industrial Relations Specialist, NSW Ambulance, to the APA as “the long-standing practice of swings and roundabouts on pay averaging”. However, there is no reference to any such long-standing practice in the Award.

And the Commission is concerned with interpreting and applying the award.  The award refers to overtime as working hours beyond those rostered for the day but it can include working a whole roster on what would otherwise be a day off (see [12]).  Commissioner Murphy took the view that the award required that Mr Duddy be paid overtime for the three shifts that he worked but would not have worked had he not taken leave.  After a conciliation conference, the Commissioner made a recommendation that NSW Ambulance pay the overtime. This was rejected, by the ambulance service. The proceedings then shifted to a claim by Mr Duddy for a compulsory order for the recovery of the overtime payments.

The ambulance service argued that the Commission could not make that order as the recommendation was merely a recommendation not an order and was not enforceable. The commission rejected the argument that it was being asked to enforce a non-binding recommendation. Commissioner Murphy said (at [21])

I reject the submission of the respondent to the effect that … the APA is asking the Commission to enforce the recommendation that I made on 21 August 2020. That is not the case. What the Commission is being asked to do is to interpret how the overtime provisions in the Award apply to the shifts worked by Mr Duddy … and to make an order for the payment of money to Mr Duddy accordingly if appropriate.

Not surprisingly the Commissioner came to the conclusion, as he had before, that the ‘overtime provisions in the Award’ meant that Mr Duddy was entitled to the payment of overtime and it was appropriate to make an order compelling the ambulance service to pay him the sum of $2,991.89 being ‘an amount equivalent to 3 overtime shifts each of 12.25 hours duration’ (see [26]). 

Commissioner Murphy had also recommended (at [9]) that:

NSW Ambulance is to consider how to resolve past claims, similar to Mr Duddy’s, that come forward directly or through the unions.

Although that still has the status of a recommendation, rather than an order, there is no doubt that the service will be well advised to act on that recommendation to avoid further claims for compensation for unpaid overtime.

Discussion

Leave is leave. One does not have to work extra hours to make up for the time taken as leave.  Pending any possible appeal, if taking leave means a NSW ambulance paramedic has to work more hours than he or she would have worked on their roster had they not taken leave, they are entitled to be paid overtime for those extra shifts.  It is the award, and not any ‘long-standing practice’ that governs overtime entitlements.

At the suggestion of a number of subscribers I’m experimenting with producing a podcast of this blog. If you’d rather hear me than read the post you can find the podcast on your favourite podcast supplier or goto https://anchor.fm/michael-eburn.

I’m also experimenting with a vodcast being delivered by FaceBook – https://www.facebook.com/EburnM/

This WordPress site remains where I will publish the blog and subscribers here will continue to get the posts delivered via email to their desk. But if you find the other sources helpful do please let me know.

Today’s correspondent:

… thought this might be an interesting topic for your blog. I have recently seen a NSW Police Inspector write the following in relation to Section 22 of the Mental Health Act “a police officer must have a belief that it is ‘probable’ that a person will attempt to kill himself or herself. The Act is silent on a definition of ‘probable.’ I thus take guidance on the definition of probable contained within the Oxford Dictionary online – ‘likely to happen or be the case.’ The same reference point defines ‘likely’ as ‘such as well might happen or be true.”

It is true that s 22 requires a police officer to believe that the relevant outcome is ‘probable’. Section 22 says:

(1)        A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–

(a)        the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b)       it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2)        A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Compare that to s 20 that says:

(1)        An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2)        An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

I appreciate that I am ‘flogging a dead horse’ when I make the argument that s 20 does not allow a paramedic to detain a person who is mentally ill, but competent, and to impose treatment against the patient’s wishes. I make that argument because s 20 does not say paramedics can apprehend a patient nor does it (as s 22 does) that they can exercise the powers under s 81.  I make the point here to say I’m still not convinced but as I noted in an earlier post (Accepting that involuntary treatment is an option under s 20 of the Mental Health Act 2007 (NSW) (November 25, 2020)) lawyers who practice in the field do accept and think that a court would accept s 20 allows involuntary treatment, even though it doesn’t say that.   Having made the point again, I will take it no further.

Let us compare s 20 and s 22.

Section 22
(Police Officers) Section 20 (Ambulance Officers) Commentary What they have to believe That:

The person appears to be mentally ill or

The person appears to be mentally disturbed

And

the person is committing or
has recently committed an offence or

the person has recently attempted to kill himself or herself or

it is probable that the person will attempt to kill himself or herself or

it is probable that the person will attempt to kill any other person or

it is probable that the person will attempt to cause serious physical harm to himself or herself or

it is probable that the person will attempt to cause serious physical harm to any other person

and

it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law. That:

The person appears to be mentally ill or

The person appears to be mentally disturbed

and

it would be beneficial to the person’s welfare to be dealt with in accordance with this Act. The circumstances in which police can act are much more limited than ambulance officers. Police have to look at traditional policing roles, law enforcement, protection of others and protection of the person in circumstances of urgency.

Ambulance officers are required to consider the patient’s best interests alone. Grounds for that belief The belief that the person appears to be mentally ill or mentally disturbed does not have to be based on reasonable grounds. The belief that they have committed an offence or are a threat to themself or others does need to be based on reasonable grounds. Ambulance officers must have reasonable grounds for their belief that the person appears to be mentally ill or mentally disturbed and that action is required under s 20. Where a belief has to be held on reasonable grounds it is a mixed standard – it is a subjective test in that the officer must actually hold the belief. But the grounds upon which they form that belief has to meet an ‘objective’ standard that is would be judged by others as reasonable.

In State of New South Wales v Talovic [2014] NSWCA 333 Emmett JA said this of the difference between ss 20 and 22 and the fact that an ambulance officer must hold the belief that the person appears to be mentally ill or mentally disturbed on reasonable grounds, but a police officer does not:

“…that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.” (See NSW Police, paramedics and the mentally ill (May 15, 2018)).

In one sense police have more limited options under the Act as the circumstances in which they can act under s 22 are limited, but they can act on their honest belief that the person is mentally ill or mentally disturbed. They don’t have to have a clinical basis for that conclusion as ambulance officers must. Ambulance officers are not so restrained in the circumstances in which they can rely on the section but their belief that the patient appears to be mentally ill or mentally disturbed must be based on ‘reasonable grounds’.  They have to be able to point to their observations, the patient’s history etc (all the normal things paramedics rely on when making a diagnosis) to justify why they came to the conclusion that the patient appeared to be mentally ill or mentally disturbed.

That now gets me to the specific question of what does ‘probable’ mean. My correspondent was correct, given that it’s not defined in the Act one would normally start with an English language dictionary. I can also look to some law. In R v Crabbe [1985] HCA 22 the High Court of Australia that in order to be guilty of murder in the Northern Territory, the accused had to realise that the probable, not merely possible consequences of his actions would be the death of, or infliction of grievous bodily harm, upon someone. Gibbs CJ along with Wilson, Brennan, Deane and Dawson JJ said (at [8]-[9] emphasis added):

If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word “probable” means likely to happen…

It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.

Probable means ‘more likely than not’ Erich v R (1980) 31 ALR 123. The Concise Australian Legal Dictionary (Lexis/Nexis, 6th ed, 2020) defines ‘probability’ rather than probable. Relevantly it says (p. 527) “‘Probability’ is distinguished from possibility in that it might be ‘possible’ for an event to happen without the event being probable”.

In State of New South Wales v Talovic [2014] NSWCA 333 Basten JA had to consider what was meant by probable in s 22. He said:

On one approach, arguably protective of the liberty of the individual, a police officer should not intervene unless there are reasonable grounds to believe it is more probable than not that the person will attempt to kill himself or cause himself serious harm. That approach would also, presumably, require that prevention informs the purpose of the power and hence requires that the attempt be foreseen within a reasonably short period.

The alternative approach is to impose a lower requirement, namely some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not. There are two reasons to adopt the latter approach. First, the assessment is to be made by a police officer: even a psychiatrist might be hard pressed to say whether a stranger, encountered in a non-professional setting for the first time, was more likely than not to attempt suicide in the near future. To expect a police officer to form such a view would be tantamount to conferring an unusable power. Secondly, the purpose of the apprehension is to transport the person to a health facility where the person will be promptly assessed by professionals in a professional environment.

That is his honour did not think the definition of probable, as set out in Crabbe, was the appropriate test here.  Tobias AJA did not agree, he said (at [185]-[187]):

… in my view Constable Manoukian’s evidence as to the nature of his belief, accepting for present purposes that it was genuine, was not that it was probable that Mr Talovic “will attempt to kill himself” or would attempt to kill himself if he was not apprehended, but that there was only a risk that he could do so, or that he may or might do so, or that it was possible that he may do so… I regard it as insufficient that his stated belief went no higher than a threat that Mr Talovic “may”, “could” or “might” attempt to kill himself or that such an attempt was “possible” when the statute mandated a belief that he “would” attempt do so.

In my view the overall impression one obtains from the evidence of Constable Manoukian that I have recorded above is that the belief that he held did not rise above one whereby it was possible, and maybe probable, that Mr Talovic may or might attempt to kill himself if he was not apprehended or that at least there was a risk that he may do so. In my view such a belief fails to accord with the clear requirements of s 22(1)(a).

Although I accept that the purpose of the Act is intended to be beneficial to the individual (as Basten JA notes in his reasons at [3] which I have also had the benefit of reading in draft), nevertheless I see no reason to give the plain words of the statute a more liberal construction simply for that reason. The fact is that the Act involves an abrogation or curtailment of the fundamental freedom of a citizen not to be apprehended by police unless they are suspected of committing a crime: see Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437. There is no ambiguity in the words of the text and in my view they should not be departed from. The various terms and expressions used by Constable Manoukian in his evidence both in examination and cross-examination, although at times a little confusing, nevertheless in my view did not constitute a belief in the terms required by the statutory text.

Emmett JA, along with Basten JA upheld the State’s appeal against a finding that there had been an unlawful detention. Emmett JA did not address what ‘probable’ in s 22 means finding that the police officers were not ‘given the opportunity of dealing with’ the suggestion that they did not hold the necessary belief so the trial judge’s finding that they did not believe that it was probable that Mr Talovic would take his own life had to be set aside and the appeal allowed.

This case did not determine whether or not the constable held the relevant belief.  The trial judge had said that the police officer had to believe it was more likely than not that Mr Talovic would take his own life but Basten JA thought that was the wrong test. Emmett JA thought the challenge was not fairly put to the police during their evidence so both those judges upheld the appeal but they did not decide the matter. It went back to the District Court for another judge to determine.  There does not appear to have been a subsequent decision so presumably the case then settled.  What we don’t know is whether a trial judge would have found that the belief held by police met the less restrictive test posed by Basten JA.

What follows is that Tobias AJA thinks ‘probable’ (in s 22) means ‘more likely than not’, that the person subject to apprehension would or will take action if not detained.  Basten JA, taken into account the protective nature of the Act, thinks that the word means ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.  We don’t know whether the police in this case met that lower standard as Basten and Emmett JJA didn’t decide that the apprehension was lawful, rather they decided there needed to be a new trial.  How a judge would have dealt with teh difference of opinion between Basten JA and Tobias AJA we don’t know. We won’t get a definitive statement of what ‘probable’ in s 22 means until there is another case and another appeal to the Court of Appeal or perhaps the High Court of Australia.

Conclusion

This post has digressed somewhat but to return to my correspondent’s question as to what ‘probable’ means in the Mental Health Act 2007 (NSW) s 22.  My correspondent said:

The Act is silent on a definition of ‘probable.’ I thus take guidance on the definition of probable contained within the Oxford Dictionary online – ‘likely to happen or be the case.’ The same reference point defines ‘likely’ as ‘such as well might happen or be true.”

That probable means ‘more likely than not’, more than merely possible is consistent with the case law such as R v Crabbe.  With respect to s 22 Tobias AJA would apply a similar test. Basten JA would not be so strict given the protective nature of s 22 requiring ‘some reasonable degree of probability but not necessarily a prediction that the attempt is more probable than not’.  Either view requires more than a mere possibility, as it is ‘possible’ that anyone we meet at any time may go home and take their own life. It has to be more than ‘possible’ but whether it gets to ‘more likely than not’ or just ‘some reasonable degree of probability’ or concern or fear we won’t know unless and until there is another appeal.

Skinner v The State of New South Wales (No 2) [2021] NSWDC 49 is the latest case dealing with the duty owed by emergency services to take reasonable care to protect responder’s mental well-being. As with many of these cases the applicant was a police officer, but the principles would be equally applicable to other emergency services.

In this case there were many allegations of negligence regarding police management, the conduct of senior officers toward the plaintiff and how the police responded to the plaintiff’s disclosure that she was not coping with various parts of the job.  It was a mixed win with some of the allegations of negligence being rejected and others upheld.

This decision is a decision of a single judge in the NSW District Court. It does not therefore set a precedent but what is relevant is Judge Abadee’s useful summary of the law he was required to apply. He said (at [446]-[449]):

There was no dispute that the Police Force owed a duty to take reasonable care to avoid foreseeable risks of injury arising from the plaintiff’s service. Further the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events is also foreseeable.

Since State of New South Wales v Briggs (2016) 95 NSWLR 467 (‘Briggs’), it has been established that the content of the duty of care must: (a) accommodate the relevant statutory context, including provisions of the Police Force Act 1990 (NSW) and the special nature of service rendered by police officers to the Crown; (b) take into account some of the incidents of the usual employer-employee relationship (adjusted to take into account the matters in (a)); and (c) be formulated prospectively…

In my view the duty of care required the Police Force to:

(a)        identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm;

(b)       take steps to ensure that any officer so identified received appropriate treatment and support to alleviate or lessen the effect of his or her injury;

(c)        consult with appropriate persons in the workplace to identify hazards associated with the work environment and systems of work if and when the injured worker returned to duty, including the assessment of the risks of injury or further injury.

These matters were all accepted by the Police Force as comprising its duty of care …

Critically the duty of care has to take into account ‘the special nature of service rendered by police officers’ and I would suggest other first responders. That is it is the nature of the emergency services that they will attend scenes of violent and horrific death and injury. Police have the extra burden of being expected to deal with offenders often in situations of violence and all face threats to their own safety. It is not possible to avoid events that will expose emergency service personnel to a risk to their psychological health.  As a result, the service’s duty is set out in Abadee DCJ’s paragraphs (a) to (c) above.

A common law duty of care does not require that an employer ensure that no harm comes to employees. The duty is a duty to take reasonable care. Abadee DCJ said (at [450]-[458] emphasis added):

…  The reasonable response, by the Police Force, to the foreseeable risk of its general duties officers suffering psychiatric injury through their exposure to traumatic incidents requires consideration of the “magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have” [Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48].

I consider that there is virtually unarguable that the probability of the risk that front line officers exposed to traumatic incidents over the course of a career in the Police Force would suffer psychiatric injuries is high (the same may be said for other emergency services, such as the ambulance service). The general issue is the response of the Police Force to that risk.

The considerations adverted to in Shirt, and especially the consideration of ‘other conflicting responsibilities’ are to be tailored to the responsibilities operating on the Police Force and individual officers, especially in relation to the requirements for obedience to lawful orders and the carrying out of lawful duties. Further, in assessing the adequacy of response to the risk, the focus needs to be on how police officers should have been instructed to perform their work. The task is to identify the system of work that was, or should have been, prescribed in response to the risk of psychiatric injury.

… the appropriate response, by way of formulating a system of work, necessarily had to recognise the ‘inevitability’ of officers encountering traumatic events and pay close attention to practical consequences of the posited response, including, for example, the finite nature of police resources and command requirements for the adaptable deployment of officers.

… it is erroneous, in determining the question of breach, to reason from the circumstance that a suggested step could have been taken to reduce the risk of injury to the result that there was a breach of duty in failing to take it. An associated point is that an omission to take a step is not negligent simply because it would eliminate the risk of harm. It is negligent because it is unreasonable not to take the step…

Further … when assessing the adequacy of the systems, consideration needed to be given to certain values, such as respect for individual autonomy, privacy and the protection of confidentiality and the likely efficacy of intervention by an ‘employer’ in the face of those values, without a ‘paternalistic’ approach being adopted. For example, a requirement directing an employee to attend counselling may infringe such values; and/or could be counter-productive.

… the significance of respecting an officer’s autonomy or privacy is reduced where the Police Force knows that the officer has actually suffered psychological or psychiatric harm.

Briggs was a case where a police officer failed because of his failure to identify a system of work which was not, but allegedly should have been, in place. By contrast, the Court of Appeal’s decision Sills, upon which the plaintiff relied, did not challenge the adequacy of the system of work itself, or argue that it was negligent not to have had a better system of work. It was the failure of the Police Force to properly implement with its system of work, in relation to its dealings with the officer, who was known to suffer from PTSD, which gave rise to the breach…

From that summary we can identify that it is one thing to allege that the police, or other employer, should have had a different system of work or management in place (as was the case in Briggs). It is a different (and easier) case to show that they had an appropriate system in place, but failed to apply or follow it (as discussed in my post NSW Police liable for mismanagement of officers PTSD (February 9, 2019)).

In Vozza v Tooth & Co Ltd [1964] HCA 29 (cited in Briggs at [222] Leeming JA), Windeyer J said this about workplace injuries:

The vigorous assertion of [the obligations to ‘maintain a safe system of work’ and ‘not to subject a worker to unnecessary risk’] may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so.

In context, even if one can point to something that defendant could have done that would reduce the risk of psychological injury, even eliminate it, it does not prove that the failure to adopt that practice is negligent.  Adoption of any proposed alternative has to be reasonable taking into account ‘the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’ which includes the responsibility on police, fire and ambulance services to dispatch their staff to deal with traumatic events and the responsibilities of those officers to in fact respond and do the job they are employed to do – provide police, fire or ambulance services for the benefit of those in need and the community generally. Proof of injury does not prove negligence.

On 6 November 2020 the High Court of Australia dismissed cases raising objections to the COVID response in WA and Victoria- see Elizabeth Byrne, ‘High Court dismisses challenge to Victoria’s coronavirus lockdown’ ABC News (Online) (6 November 2020). Although the High Court announced its decisions on 6 November, the judges did not immediately publish their reasons. When sharing the story via Facebook, I said “I will report on the judgments if they say anything relevant to the subject of my blog”.

On 31 December 2020 I reported on the decision of the Victorian Court of Appeal in Loielo v Giles [2020] VSC 722 and on the decision of the High Court of Australia in Gerner v The State of Victoria [2020] HCA 48 (see Two cases on the pandemic response (December 31, 2020)). Yesterday the High Court handed down the reasons for its decision in Palmer v Western Australia [2021] HCA 5 (24 February 2021). On 6 November 2020 the judges of the High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) had unanimously dismissed Palmer’s case but we had to wait to yesterday for them to publish their reasons explaining the issues and the basis of their decisions.

The issue before the court

The issue before the court was described by Edelman J who said (at [213]):

The central question in the special case in the original jurisdiction of this Court concerns the challenge by the plaintiffs, Mr Palmer and a privately held company under his direct and personal executive management, to the validity of the Quarantine (Closing the Border) Directions (WA). Those directions were made under the Emergency Management Act 2005 (WA) for the purpose of responding to the COVID-19 pandemic. The essence of the plaintiffs’ case is that the Quarantine (Closing the Border) Directions are invalid by operation of s 92 of the Constitution because they involve an impermissible derogation from one or both aspects of the guarantee in that provision, those aspects being freedom of trade and commerce and freedom of intercourse.

The relevant law

Section 92 of the Constitution says (emphasis added):

“On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”

The Quarantine (Closing the Border) Directions (WA) were made under the Emergency Management Act 2005 (WA).  The relevant sections were sections 56 and 67. Section 56 says:

(1)       The Minister may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State.

(2)       The Minister must not make a declaration under this section unless the Minister —

(a)        has considered the advice of the State Emergency Coordinator; and

(b)       is satisfied that an emergency has occurred, is occurring or is imminent; and

(c)        is satisfied that extraordinary measures are required to prevent or minimise —

(i)        loss of life, prejudice to the safety, or harm to the health, of persons or animals; or

(ii)       destruction of, or damage to, property; or

(iii)      destruction of, or damage to, any part of the environment.

Section 67 says:

For the purpose of emergency management during an emergency situation or state of emergency, a hazard management officer or authorised officer may do all or any of the following —

(a)        direct or, by direction, prohibit, the movement of persons, animals and vehicles within, into, out of or around an emergency area or any part of the emergency area;

(b)       direct the evacuation and removal of persons or animals from the emergency area or any part of the emergency area;

(c)        close any road, access route or area of water in or leading to the emergency area;

(d)       direct that any road, access route or area of water in or leading to the emergency area be closed.

Kiefel CJ and Keane J

There was ‘no dispute that the Directions were authorised by the EM Act’ ([5]) that is that the Minister had made a declaration of a state of emergency, that in making that declaration the Minister had considered the advice of the State Emergency Coordinator and was satisfied of the matters listed in s 56(2). Further there was no dispute that the State Emergency Coordinator was an authorised officer who had issued the directions under s 67(a) for ‘the purpose of emergency management’.

The emergency area (s 56(1)) was the entire state of WA. The ‘effect of the Directions [was] to close the border of Western Australia to all persons from any place unless they were the subject of exemption…’ ([7]). At [12]-[14] their Honours said:

In proceedings commenced on 25 May 2020 in the original jurisdiction of this Court the plaintiffs [ie Clive Palmer and a company of which he was the Chair and managing director] claim a declaration that “either the authorising Act and/or the Directions are invalid, either wholly or in part … by reason of s 92 of the Constitution”…

The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect.

The defendants, the State of Western Australia and the Commissioner of Police for Western Australia, deny the plaintiffs’ allegations. In their defence they plead that s 67 and other provisions of the EM Act do not have the purpose of economically protecting the State of Western Australia, rather they have the legitimate purpose of protecting the population of Western Australia against risks arising from emergency situations. The continuation in force of the Directions, pursuant to the EM Act, does not have a protectionist purpose and is reasonably necessary to achieve, and is compatible with, the legitimate purpose of protecting the Western Australian population against the health risks of COVID-19 where there are no other equally effective means available to achieve that purpose which would impose a lesser burden on interstate trade or commerce. Likewise, it is pleaded that intercourse among the States, whether by movement or communication, is prevented only to the extent that is reasonably necessary and that there are no other, equally effective means which impose a lesser burden on that intercourse.

Ultimately the court decided that the orders under the Emergency Management Act did not raise questions of, and did not contradict, s 92 and did not raise any issue under the Australian Constitution.  Their Honours said (at [29]-[30], emphasis added):

… the guarantee in s 92, that interstate trade, commerce and intercourse be “absolutely free”, was not to be taken literally. The section should not be construed as precluding an exercise of legislative power which would impose any barrier or restriction on interstate trade or commerce or interstate intercourse…

The freedom which s 92 guarantees is freedom from discriminatory burdens which have a protectionist effect.

For example (and this is my example, not from the judgment), a fee that is imposed on a transaction in Victoria but not in NSW is not contrary to s 92 provided everyone trading in Victoria, whether Victorian or not, has to pay the fee. The fact that this imposes a cost on NSW traders of doing business in Victoria is not prohibited by s 92 as the fee is not discriminatory for protectionist purposes. It would be prohibited if the fee were imposed on interstate traders in order to make the price of interstate goods higher relative to goods produced in Victoria and thereby give a market advantage to Victorian traders.

Where a state legislature passes a law to achieve an appropriate purpose and the law has the incidental effect of imposes a cost or burden on interstate trade, commerce or intercourse, then the law will not be contrary to s 92 unless (at [62]) ‘… the burden cannot be justified as proportionate to the non-discriminatory, legitimate purpose of the law which is sought to be achieved. Whether it is proportionate is to be determined by the tests of structured proportionality …’

Their honours then considered (at [63]) that the issue of whether or not the law was contrary to s 92 question had to be considered by reference to the Emergency Management Act, not the directions made under it. The question was whether the Act imposed an unacceptable burden on the freedoms guaranteed by s 92. The Emergency Management Act did not impose any prohibited burden. The provisions of s 56(2) limited the Minister’s ability to make a declaration and a declaration was only in force for a limited time (albeit it could be renewed each time). At [72] their honours said ‘It cannot therefore be said that by their terms ss 56(1) and 67 of the EM Act discriminate against interstate movement…’ and there was no constitutional issue for the High Court to determine.

With respect to the Directions actually made, if they imposed burdens contrary to s 92 this would raise issues of whether the decision maker was acting according to law, not the constitutional issue of whether or not the law was a valid law. The Emergency Management Act including the power to declare a state of emergency and the power to restrict movement into a disaster area was a valid law. Was the decision to make the Quarantine (Closing the Border) Directions lawful under the Act. The plaintiffs argued (see [76]) that ‘the power to restrict the entry of persons into Western Australia’ was neither ‘suitable or necessary’ for the purpose of protecting the citizens of Western Australia from COVID-19.

Determining what was suitable or necessary required a consideration of factual matters. The High Court sits (usually) as an appellate court but in this instance the case started in the High Court because of the alleged constitutional issues. The High Court is not however a trial court and is not set up to hear witness and to take evidence. In order to determine the necessary facts, the matter had been referred to the Federal Court where Rangiah J had heard evidence and made findings. Kiefel CJ and Keane J summarised the outcome of the Federal Court hearing at [21]-[23]:

His Honour considered that if persons entered the Western Australian community whilst infectious there would be a high probability that the virus would be transmitted into the Western Australian population and at least a moderate probability that there would be uncontrolled outbreaks. If there were uncontrolled outbreaks, the consequences would include the risk of death and hospitalisation, particularly for the vulnerable groups mentioned above. In a worst-case scenario, the health consequences could be “catastrophic”…

His Honour concluded that in view of the uncertainties involved in determining the probability that COVID-19 would be imported into Western Australia from elsewhere in Australia, and the potentially serious consequences if it were imported, “a precautionary approach should be taken to decision-making about the measures required for the protection of the community”.

Accepting (at [80]-[82]) that the State Emergency Coordinator, acting under s 67, must impose restrictions that are proportionate to the risk, the findings of fact made by Rangiah J supported ‘the defendants’ submission that there is no effective alternative to a general restriction on entry…’:

… the importance of the public health purpose [must] be measured against the extent of the restriction on the freedom. It must be accepted that the restrictions are severe but it cannot be denied that the importance of the protection of health and life amply justifies the severity of the measures.

Gageler J

Gaegler J said (at [85]) that the guarantee provided by s 92 ‘is of absolute freedom from laws imposing differential burdens on interstate trade or commerce (in comparison to intrastate trade or commerce) which cannot be justified’ as a proportional means to obtain a legitimate non-discriminatory purpose.

With respect to whether the court should be concerned about the Act or about the orders made by those authorised by the Act, Gaegler J said (at [119]):

Where executive action purporting to be taken pursuant to statute imposes a burden argued to infringe … the express constitutional guarantee of absolute freedom of trade, commerce and intercourse among the States, two distinct questions accordingly arise: one constitutional, the other statutory. The statutory question is whether the executive action is authorised by the statute. The constitutional question is whether the statute complies with the constitutional guarantee if, and insofar as, the statute authorises the executive action.

In this case the constitutional question was whether the [Emergency Management Act] complies with the constitutional guarantee …’. The answer to that question was that the Act is not inconsistent with s 92. The purpose of the Act – to facilitate the management of an emergency – is a legitimate purpose even if, in some cases, it may impose a burden on interstate trade, commerce or intercourse. At [164]-[166] His Honour said:

What is significant is that the purpose of emergency management is the sole purpose for which the power of direction can be exercised. And the discretion to exercise the power for that purpose is subject to the standard implied condition that it can only ever be exercised by the authorised officer reasonably on the basis of the information available to the authorised officer.

The result is that, whilst the discretionary power of direction can extend to authorise the giving of a direction which on its face or in its practical effect imposes a differential burden on interstate intercourse (which might or might not be in trade or commerce), the power can only ever be exercised reasonably for the sole purpose of managing a designated emergency in a designated emergency area for so long as there is in force a state of emergency declaration, of the continuing need for which the Minister must periodically be stringently satisfied.

My conclusion was, and remains, that the cumulation of those statutory constraints means that a differential burden on interstate intercourse that might result from an exercise of the power of direction is justified according to the requisite standard of reasonable necessity across the range of potential exercises of the power. Being justified, such a differential burden is not discriminatory. Much less is it protectionist.

In other words, all the factors that had to be considered before the Minister could make a declaration under s 56 and then all the factors that the State Emergency Coordinator had to consider before making directions under s 67 mean that any action taken under the Act, even if it imposes a burden on interstate trade, commerce or intercourse, would be justified. If the argument was that the Minister did not in fact hold the beliefs required under s 56 or that the Coordinator’s actions were not for the purpose of emergency management or were not ‘exercised … reasonably on the basis of the information available to the authorised officer’ that would be a different issue; but that was not the issue before the High Court.  The issue before the High Court was whether the Act was contrary to s 92, and it was not.

Gordon J

Gordon J set out the requirements for making a declaration under the Act.  She said (at [168]):

The Directions could not lawfully be made unless certain statutory conditions were met. A state of emergency had to be declared by the Minister for Emergency Services (“the Minister”). The Minister could do that only if they had considered the advice of the State Emergency Coordinator and if satisfied that, relevantly, extraordinary measures were required to prevent or minimise loss of life, prejudice to the safety, or harm to the health, of persons from, in this case, an epidemic. That declaration being in place, the State Emergency Coordinator had then to be satisfied that, for the management of the adverse effects of the epidemic (including mitigation or prevention of the potential adverse effects), the nature and magnitude of the epidemic required a significant and coordinated response, which included, by direction, prohibiting the movement of most people into Western Australia.

Critically for those who were hoping this case may have been a test of there are sufficient reasons, or evidence to support, the Minister’s declaration and/or the State Emergency Coordinator’s directions, the ‘… plaintiffs did not allege that these statutory conditions had not been met…’ ([169]).  The plaintiffs’ argument was, accepting all the conditions necessary for the making of a declaration existed, the executive government could not make the orders restricting moving into WA.

At [180]-[181] Her Honour said:

Section 92 does not confer a personal right to engage in interstate trade, commerce and intercourse; it is a limit on legislative and executive power. And the guarantee in s 92 that “trade, commerce, and intercourse among the States … shall be absolutely free” does not confer immunity from all regulation. It does not prevent the making of laws which impose a differential burden on interstate trade, commerce and intercourse if the differential burden is reasonably necessary to achieve a legitimate object of the law.

… s 92 is to be treated as a whole and is centrally concerned with discrimination – an unjustified differential burden on interstate trade, commerce and intercourse, compared with intrastate trade, commerce and intercourse.

Her Honour set out an approach to be followed when considering whether a law infringed s 92 of the Constitution. She said ([197]):

… the answer … depends on the objects of the impugned law and whether the … burden imposed is reasonably necessary to achieve a legitimate object – an object other than imposing a differential burden on interstate trade, commerce or intercourse in favour of intrastate trade, commerce or intercourse… the inquiry is whether the true purpose of the law, in its legal and practical operation, is to achieve a legitimate object or to effect a form of prohibited discrimination.

The mere fact that there are alternative ways to achieve the legitimate object does not determine whether the pathway elected by the legislative or executive government is ‘reasonably necessary’ (see [198]-[199]).

If the Act does not breach s 92, then the question of whether administrative action authorised by the Act imposes an improper burden on interstate trade, commerce or intercourse does not raise a constitutional issue.  With respect to the Emergency Management Act Her Honour said (at [205]-[209]):

… Sections 56 and 67 are evidently concerned with managing a state of emergency. That object is one other than erecting State borders as barriers against freedom of trade, commerce or intercourse and it is a legitimate object….

The power in s 67(a) may only be exercised when a state of emergency has been declared under s 56. In addition, the statutory conditions in s 67(a) to the power of an authorised officer to prohibit movement, by direction, are so confined that any exercise of the power is reasonably necessary for the object of managing a state of emergency.

Each discretion is “effectively confined so that an attempt to exercise the discretion inconsistently with s 92 is not only outside the constitutional power – it is equally outside statutory power and judicial review is available to restrain any attempt to exercise the discretion in a manner obnoxious to the freedom guaranteed by s 92”. … Put in different terms, the discretion granted by these provisions is not wider than the Constitution can support; it cannot be exercised in a manner obnoxious to the freedom guaranteed by s 92. The statutory indicia are so tightly constrained that a differential burden can be placed on interstate trade, commerce and intercourse only in extraordinary and highly particular circumstances, namely to meet an emergency constituted by, in this case, an epidemic, the management of the adverse effects of which required a significant and coordinated response. That differential burden is not discriminatory. …

Again one has to remember the role of the High Court. Here it was asked to determine whether the legislation was contrary to s 92. What Gordon J (and Gageler J) considered was whether the Act, as written, would allow orders to be made that would impose a discriminatory burden on interstate trade, commerce or intercourse. Having decided that it did not, because the circumstances in which orders could be made under s 67 were so limited, that was the end of the matter. Neither Gordon J (nor Gageler J) went onto to ask whether the actual orders that had been made imposed an impermissible burden because it had not been argued that the conditions required for action under ss 56 and 67 had not been met. To quote again Kiefel CJ and Keane J ‘There is no dispute that the Directions were authorised by the EM Act’ ([5]).  If there was a claim that an ‘authorised officer’ issued directions for purposes other than those set out in the Act, or that the burden of the directions were disproportionate to the risk to be addressed, then that would require a different sort of action. As Gordon J said (at [211]):

It was open for the plaintiffs, when the Minister issued the state of emergency declaration and every 14 days when it was renewed, and when the State Emergency Coordinator issued the Directions and each time the Directions were amended, to challenge one or more of the exercises of those statutory powers on the grounds that the relevant actions were beyond power. No such challenge was ever made.

Edelman J

His Honour agreed that the appropriate level of analysis was not the effect of the actual orders made but (at [224]) the ‘… level of an empowering statute, leaving questions concerning the validity of actions taken under the statute, including regulations, directions and administrative action, to be resolved by reference to whether the valid statute empowers that action.’

At [261] His Honour said (emphasis added):

The constitutional guarantee that “trade, commerce, and intercourse among the States … shall be absolutely free” imposes a requirement that laws concerning movement across a border – whether it be goods, persons, or communications or other intangibles – cannot discriminate by imposing an unjustified burden on trade, commerce, or intercourse in one State compared with another.

Edelman J explained his preferred approach at [265] (which has been re-formatted below to make his three grounds clear):

Structured proportionality makes explicit and transparent the only three independent grounds upon which a law might be held invalid as contrary to s 92.

• First, a law will be invalid if its very purpose is to undermine the freedom guaranteed by s 92.
• Secondly, a law will be invalid if its means of achieving its legitimate purpose are not “reasonably necessary”, in the sense that those means burden the freedom guaranteed by s 92 substantially more than obvious and compelling alternatives which could achieve the purpose of the law to the same extent.
• Thirdly, and in absolutely exceptional cases, a law will be invalid if its legitimate, but trivial, purpose is inadequate to support the extent of the burden placed upon the high constitutional purpose of s 92.

(It should be noted that there was disagreement between the judges about the use of ‘Structured proportionality’ as explained by Edelman J. Kiefel CJ, Keane and Edelman JJ all favoured a ‘structured proportionality analysis’. Gageler and Gordon JJ did not; they preferred stopping at the test of ‘reasonable necessity’ (Edelman’s second point, above). Gageler and Gordon JJ would not allow the court to hold that the purpose of legislation – a purpose adopted by Parliament – was too trivial for the burdens imposed as a legitimate means to achieve that purpose. That is, it is for Parliament not a court to determine what is a proper purpose to be achieved by legislation. It is not for the courts to judge the value of a purpose that Parliament seeks to achieve. Edelman recognised the objection, he said (at [267]; [275]-[276]):

One objection to this form of structured proportionality is that there is no place for the third stage of the analysis… The third stage requires a comparison of the importance of competing policies, upon which Parliament is far better suited to judge in a representative democracy. There is great force to this objection. In Clubb v Edwards, I explained why this third basis for invalidating laws must be highly exceptional. The third stage permits the invalidation of a law even though the purpose of the law is legitimate and despite the means adopted being reasonably necessary to achieve that purpose. In other words, invalidation at the third stage of a law that has satisfied the first two stages might have the effect that Parliament can never legislate to achieve that legitimate purpose. Ultimately, however, … there may be extreme examples of laws whose legitimate but trivial purpose cannot justify a necessary, but extreme, burden upon the important freedom of trade, commerce, and intercourse…

… A law will be inadequate in the balance if, notwithstanding that the law is the only reasonable means of achieving the purpose, the extent of the discrimination and thus the incursion into the freedom of trade, commerce, or intercourse cannot be justified given the purpose of the law.

… the description of the s 92 freedom as “absolute” supports the possibility of invalidity where Parliament puts a necessary but extreme burden on the subject matter of s 92 in order to achieve a purpose that is trivial…

This debate will be of interest to constitutional lawyers and in future cases but for this blog we can put that particular issue aside. We can identify that there is a 3:2 majority for ‘structured proportionality analysis’ but in this case, nothing turned on it as none of the judges thought the purpose of the Emergency Management Act so trivial that any burden on interstate trade, commerce or intercourse could not be justified.)

Discussion

This blog cannot, of course, do justice to a High Court judgment that runs for 115 pages and 4 separate judgements and protracted argument about tests for legislative validity. What can be taken from the decision and is of relevance to readers of this blog is the following:

1. Despite claims in s 92 that interstate trade, commerce and intercourse shall be ‘absolutely free’ it is not to be read literally. Interstate trade, commerce and intercourse can be subject to a ‘burden’ or restriction provided that the aim is not to advance intrastate – local – traders over interstate ones and provided the purpose that a legislature is seeking to achieve is a legitimate purpose and the burden is reasonably necessary to achieve that purpose.
2. When considering whether or not a law offends s 92 the relevant analsysis is to look at the Act of parliament, not the subordinate legislation, orders or directions made under that legislation. There may be questions of whether or not those subordinate instruments are authorised by the Act, recognising that there is an implied limitation that any restrictions must be reasonable and proportionate. But whether they are, or are not, raises a question of whether the subordinate orders are authorised by the Act, not a constitutional question about the validity of the Act.
3. This case was about the Emergency Management Act 2005 (WA) and in particular ss 56 (the power of the Minister to declare a state of emergency) and 67 (powers to be exercised by an authorised officer during a declared state of emergency). None of those sections purported to limit interstate trade, commerce or intercourse so, looking at Edelman J’s three criteria for invalidity, the laws passed the first test. Emergency management is a legitimate purpose of state government (see [155] (Gageler J)). The procedures to be followed, and the state of mind that a decision maker must have before acting under either ss 56 and 67 limited the power of those involved to act only in the most serious cases. Assuming that the decision makers (the Minister and an ‘authorised officer’) are acting as required by the Act, it will follow that any burden imposed will meet the test of ‘reasonably necessity’ (Edelemen J’s second test). And, as Kiefel and Keane JJ noted, given the findings of Rangiah J sitting as the Federal Court, the burdens in imposed by the actual orders were ‘reasonably necessary’ to meet the Act’s legitimate purpose.
4. As noted there was disagreement as to whether Edeleman J’s third test was a legitimate test but for our purposes nothing turns on that as there was no suggestion that the purpose of the Emergency Management Act was ‘trivial’. For Gageler and Gordon JJ the third test was not a legitimate question to ask, for Kiefel CJ, Keane and Edeleman J there was no question that the legislation was not invalid for that purpose.

As a result all five judges agreed that the case did not in fact raise a constitutional issue as the Emergency Management Act 2005 (WA) did not have as an express, or necessary purpose, imposing prohibited restrictions on interstate trade, commerce or intercourse. To the extent that the orders made under that Act did impose a burden on ‘interstate trade, commerce or intercourse’ then that was not a constitutional issue and not an issue for the High Court. The question of whether a decision maker – such as the State Emergency Coordinator – had acted in accordance with the law (including s 92) was a matter of administrative law but in this case, there had been no allegation that either the Minister or the State Emergency Coordinator had acted contrary to the legislation. The plaintiffs did not ‘did not allege that the express statutory conditions for the exercise of the power to make the Directions had not been met’ ([171] (Gordon J)).

What the case did not decide

What might be disappointing for those that still see the COVID response as excessively burdensome is that the case did not decide that the COVID pandemic is a fraud. In the Federal Court (see [16]-[18];[21]):

… Rangiah J found that certain facts relating to COVID-19 and SARS-CoV-2, which had been pleaded by the defendants as particulars of the justification for the Directions, had been proved

The facts so found included the following. COVID-19 is a disease caused by the coronavirus SARS-CoV-2. Clinical and epidemiological knowledge about them is relatively uncertain, their being a new pathogen and disease. SARS-CoV-2 may be transmitted by a person who is asymptomatic and unaware that they have the disease. Where there is community transmission of SARS-CoV-2 its natural growth rate is exponential and must be minimised through certain measures. The risk of community transmission is substantially increased if measures of the kind contained in the Directions are removed. There are no known testing measures which are themselves sufficient to prevent community transmission.

The consequences of community transmission of SARS-CoV-2 and the development of COVID-19 are substantial, including the increased risk of death – particularly for members of the population who are over 70 years of age, members of the population with pre-existing medical conditions or members of the Aboriginal or Torres Strait Islander population – and the risk that the hospital system in Western Australia will be unable to cope. There [was] no known vaccine, and no treatment presently available to mitigate the risks of severe medical outcomes or mortality for a person who contracts COVID-19…

… if persons entered the Western Australian community whilst infectious there would be a high probability that the virus would be transmitted into the Western Australian population and at least a moderate probability that there would be uncontrolled outbreaks. If there were uncontrolled outbreaks, the consequences would include the risk of death and hospitalisation, particularly for the vulnerable groups mentioned above. In a worst-case scenario, the health consequences could be “catastrophic”.

Conclusion

Given there was no allegation that the conditions for action under ss 56 and 67 had been met, Palmer’s argument, in effect was that the state executive could not impose a burden on interstate trade, commerce or intercourse even where that burden was a legitimate and reasonable response to an emergency.  That argument was rejected.  The outcome is to recognise that the conditions required for action mean that the exercise of emergency powers is limited to extreme cases but because they are so limited, where they are lawfully used, they justify action that burdens interstate trade, commerce or intercourse and I would predict, other recognised rights. See also:

• Two cases on the pandemic response (December 31, 2020) and
• Challenging COVID restrictions – part 1 (April 23, 2020).

Tom Kiat, Industrial officer with the Australian Paramedics Association NSW wrote to me and said:

Following your post on 27 Oct 2020 regarding NSWA settling a negligence case against it, I thought it would interesting to find out more about how many neg cases NSWA is defending each year.

I made an informal GIPA application, see outcome attached. Total of 50 cases filed in last 3 years.

The post he was referring to was Negligence case against NSW Ambulance settles (October 27, 2020). In that post I said:

I have previously talked about accessing the result of court cases – see Accessing a judge or magistrate’s reasons for decision (November 18, 2016). That post discusses finding a result when a judge rules on a matter. Usually when a case settles out of court (and most do) there is nothing to find and we cannot know that the case existed let alone what the outcome is…

In the days of the internet we can identify many more cases that we could when I started law school back in 1983. In those days only important judicial decisions were reported in printed, bound law reports. Today nearly every judicial decision is published online.  It means that we can be reasonably confident that seven will represent the majority if not all the relevant claims. If there were others where a judge had to make a ruling, even on procedural or evidentiary matters but the case settled (which is the case with St. John Ambulance Australia (NT) v Stuart) or a case like McElhinney where the judge has to approve the settlement, we are likely to know about it.

The response to Tom’s request for information is attached (and I publish it with Tom’s permission). See

notice-of-decision-20-811-2Download

 The question Tom asked was:

“How many claims have been filed suing NSW Ambulance as the Defendant or joint Defendant, based on the alleged negligence of NSW Ambulance employees in the performance of their clinical duties, in each of the last 3 financial years i.e. FYs 2018, 2019 and 2020.”

The answer is:

FYCountFY 17-1819FY 18-1923FY 19-208Grand Total50

That is surprising and given what I wrote, above, much more than I would have expected. What surprises me is how few of those cases have got before a judge in order to produce some judgment that would have been identified.  Either the plaintiffs have decided not to proceed with the claim, or the claims have settled without reference to a court. Settlement may either be in favour of the plaintiff or the defendant and we cannot infer how any of these cases may have settled. Some will no doubt still be in the process of being resolved. We know how long cases take to get before a court so some may still be working their way through the process and will appear before a judge sometime in the future.

Regardless of where the cases have gone, it is certainly evidence that there have been many more cases that at least alleged negligence than I imagined.

Today’s question arises from the fires currently burning in the Perth Hills. My correspondent wants ‘some easy-to-understand advice about the employee protections provided for in the Emergency Management Act’. I have been provided with ‘…a copy of the Emergency Situation Declaration (due to expire or be renewed today)’. My correspondent says, ‘from my layman’s reading of the Act, the employee protections don’t seem to be dependent on a declaration being made’. I am asked whether those protections ‘are always in place or only during a declaration’?

The declaration supplied to me is a declaration of an ‘emergency situation’ (Emergency Management Act 2005 (WA) s 50) by the delegate of the Fire and Emergency Services (FES) Commissioner. The FES Commissioner is the hazard management agency for fire (Emergency Management Act 2005 (WA) s 4). Whilst the declaration remains in place, authorised officers may exercise the emergency powers set out in Part 6, Division 1 (ss 65-72A) of the Emergency Management Act 2005.

The employment protection provisions are set out in Part 9 (ss 91-94) of the Act. The critical section is s 92 which says:

(1)        For the purpose of calculating the entitlement of an employee to long service leave, sick leave, recreational leave or other benefits to which the employee is entitled, the continuity of service of the employee is to be taken not to have been broken only by the employee’s absence from the employment because the employee was carrying out an emergency management response.

(2)        An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence calculated at the employee’s ordinary rate of remuneration, determined in accordance with the regulations, on the time that the employee would ordinarily have worked had the employee worked his or her scheduled work time.

Section 93 adds further protection. It says:

(1)        An employer must not victimise an employee of the employer for the reason that, or reasons that include the reason that, the employee was temporarily absent from employment because the employee was carrying out an emergency management response…

(3)        An employer victimises an employee if the employer —

(a)        dismisses the employee from employment with the employer; or

(b)       alters the employee’s position in his or her employment with the employer, to the employee’s disadvantage; or

(c)        refuses to promote or transfer the employee; or

(d)       does not provide the entitlements referred to in section 92; or

(e)        otherwise injures the employee in his or her employment with the employer.

The consequences of a breach of s 92 or 93 is that the offending party may be ordered to pay compensation to an affected worker. The maximum payment is, if the worker has been dismissed 6 months’ pay, and in any other case $5000. A court may also order that a worker is to be reinstated to their position. The court may impose a civil penalty, to be paid to the WA treasurer to a maximum of $50 000 (Emergency Management Act 2005 (WA) s 94).

Section 91 is a definitions section. Relevantly it says:

(a)        an employee carries out an emergency management response if —

(i)         the employee undertakes an activity that involves responding to an emergency; and

(ii)        the employee carries out the activity on a voluntary basis; and

(iii)       the employee is a member of, or has a member-like association with, an emergency management agency; and

(iv)       the employee was requested by or on behalf of the emergency management agency to carry out the activity or no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made;

and

(b)       an employee does not carry out an emergency management response if the activity involves prevention of, preparedness for, or recovery from, an emergency.

An emergency is ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’ (s 3). An ‘emergency management agency’ is either ‘a hazard management agency, a combat agency or a support organisation’ (s 3). As noted, the FES Commissioner is the ‘hazard management agency’ for fire. Both the Department of Fire and Emergency Services (DFES) and each local government is a combat agency ‘responsible for the emergency management activity of fire suppression’ (Emergency Management Regulations 2006 (WA) rr 30A and 31). Bushfire brigades are operated either by DFES or local governments (Bushfires Act 1954 (WA) and Fire and Emergency Services Act 1998 (WA)). It follows that any volunteer with an established WA bushfire brigade is a volunteer for a combat agency as required by s 92(a)(iii), above.  The combined effect of s 92(a)(i) and 92(b) is that the provisions only apply to the ‘response’ phase of an emergency, not the Prevention of, Preparation for or Recovery from the emergency. Given the current state of the fires that Western Australia is still in the ‘response’ phase is beyond doubt.

Discussion

The power to declare an ‘emergency situation’ is found in Part 4 of the Act. The consequences of that declaration are found in Part 6. The employment protection provisions are in Part 9. There is no direct link between Part 9 and either Part 4 or Part 6. None of the provisions in Part 9, including the definition of ‘emergency response’ refer to or require a declaration of an ‘emergency situation’ (s 50) or a declared ‘state of emergency’ (s 56).  An ‘emergency management response’ requires that the volunteer is responding to an emergency that is ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’. It does not have to be a ‘declared emergency situation’ to constitute an emergency. The value of making a declaration under s 50 is that it triggers the emergency powers set out in Part 6, not that it triggers the employment protection provisions.

Conclusion

What follows is that the employment protection provisions apply to all volunteer firefighters in WA whenever they are responding to a fire – they are ‘always in place’ and do not depend on a declaration under either s 50 (‘emergency situation’) or s 56 (‘state of emergency’).

The stimulus for this post is a story from ABC Kimberley reported by ABC Online – Ben Collins, ‘Indigenous rangers in WA north priced out of bushfire prevention by insurance price jump’ ABC News (Online) (1 February 2021). The gist of the story is that:

Indigenous ranger groups in the north of Western Australia will have to stop their bushfire suppression work at the end of June unless a solution can be found to a more-than-doubling of fire insurance premiums in the space of a year.

The report says that the Department of Fire and Emergency Services (DFES) ‘would be meeting with the ICA to try to find a resolution to the issue’ whilst, at the same time, approaches are being made to the Federal Government’s National Indigenous Australians’ Agency (NIAA) for funding to cover the extra premiums.

Discussion

This story demonstrates some key issues that are familiar to those in the sector and, with all due modesty, some that were reported by Geoff Cary and I in our article ‘You own the fuel but who owns the fire’ International Journal of Wildland Fire 26(12) 999-1008 https://doi.org/10.1071/WF17070.

The first issue, reported many times over (see for example Productivity Commission National Disaster Funding, 1 May 2015), is that mitigation costs much less than response. Spending money now to mitigate risk will mean a manyfold saving in the amount that may have to be spent responding to mega fires.   As Mr Durack is quoted as saying:

“If we don’t do our jobs then they will be faced with more claims from property owners, from tourist ventures because infrastructure has been burnt down because of the large late-season fires,” he said.

The other issue, that Cary and I reported, is that the legal risk of taking action is much higher than the risk of doing nothing. As Mr Durack says ‘if we burn something down and we don’t have insurance, then we bankrupt the organisation’.  But doing nothing won’t expose the organisation to legal risk, even if there is a mega fire that has more devastating impacts.

Property owners can insure their assets against loss by fire. Whether that fire is an unplanned, naturally occurring wildfire or a hazard reduction that goes wrong, it is still loss by fire. If they are insured, they can look to their insurer to cover their losses. The position is different for the insurer. An insurer stands in the shoes of the insured. If the fire is started by natural causes, the insurer wears the loss. If it is a hazard reduction that does not go to plan, they can look to the agency that started the fire (or more accurately the agencies insurer) to make good their losses. As we discuss in our paper, there is almost strict liability associated with lighting a fire as there is always the option to not light the fire if conditions and resources are not right (see also Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)).

If a property is not insured, then the risk of loss by fire falls to the owner. If there is no-one to sue, they must bear the cost. If they can find a defendant who lit the fire, then they can look to them for compensation.

One can see the risk to an organisation such as the Kimberley Land Council. The legal risk of doing this work is higher than the risk of doing nothing even though doing the work brings many advantages and benefits to many communities.

The solutions suggested, working with the insurance council or trying to find money to pay the inflated premiums, are short term measures.  Another solution, put forward by Cary and I, may be more useful in the long term. In our paper we said

Bushfire management legislation should provide that where a landowner obtains a permit to conduct a prescribed burn, and the landowner honestly and in good faith complies with the restrictions, requirements and conditions of any permit, that should be prima facie evidence that the landowner’s conduct was reasonable and should provide a defence to any claim in negligence should the fire escape….

Putting that suggestion into context the Western Australian government could pass legislation to the effect that where appropriate risk management strategies are in place there is no liability for the escape of fire. For insured property owners they are still insured but their insurance company could not look to the Land Council for a remedy.  Uninsured property owners are left without a remedy, but they are already wearing the risk of loss by fire and it is likely that their losses will be less than those caused by an out-of-control mega-fire.

Mr Durack said the work came with inherent but manageable risks…

He said there could be severe consequences if Indigenous fire management could not continue.

“By us putting in fire early in the dry season, you mitigate against that large, uncontrolled fire,” he said.

“So, people are at risk. People’s lives will be at risk of large, uncontrolled fires as we’ve seen in other places.”

Mr Durack said larger, and unmanaged fires also increased risks to the environment and the economy of the region,

“Without running an early season program, we will change the landscape. You will burn it too often and too hot,” he said.

“A lot of the work we do protects against late-season fire running into pastoral properties, so [there would be] significant economic impact.”…

Indigenous rangers have increasingly managed bushfire in the Kimberley over the last decade, and Mr Durack said this had demonstrated the benefits of this practice.

Conclusion

This depressing story confirms that despite years of rhetoric around building resilient communities the gap between theory – that mitigation and prevention saves money, lives and assets when compared to response – and reality remains ever present. And the law doesn’t help

… the law is clear: whoever owns the ignition owns the fire. The question of whether the ‘owner’ of the fuel ‘owns’, or is legally responsible for, the fire has not been tested. Analysis of the law shows that the best that can be said is: whoever owns the fuel might own the fire. That means that a (legally) cautious landowner [or land manager], considering whether to set a prescribed burn, would be correct to conclude that the legally lower-risk option is to do nothing.

If the law says that it is safer to do nothing, then the law is pushing landowners [and managers] in a direction away from the policy direction adopted by all Australian governments. National policy is focused on all stakeholders doing their share to make communities resilient to hazards, in this case bushfire. If the law discourages action designed to mitigate risk, the law is pushing in the wrong direction.

Section 28 of the Rural Fires Act 1989 (NSW) says:

(1) 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.

(2) Any provision, stipulation, covenant or condition in any agreement that negates, limits or modifies or purports to negate, limit or modify the operation of this section is void and of no effect.

Today’s correspondent asks whether this is ‘… a dead-end piece of legislation?’ They say:

We had a bushfire originate on our property October 2019 which turned into a major bushfire. About 10 days after the start of the fire there was a windy day which fanned up the fire still on our property which then jumped a containment line. To make a long story short about a week and a half later I found that RFS had pushed a one-way containment line from a neighbour’s property up a very steep slope to a ridge top on a remote peak then along the ridge top for some distance. 

This containment line is now a major erosion problem. We made an insurance claim under s 28 [relying on ‘any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire’] which was denied as we did not have fire insurance over the property so damaged. It seems for s 28 to be relevant one needs fire insurance cover over the bush itself and the mountain! And according to our insurance broker there is no such insurance policy available, nor is there is a policy of insurance available for environmental damage by RFS.

Our farm insurance contract has those items listed for which we have purchased insurance cover. By the PDS our farm insurance policy covers events of fire. Therefore might the farm insurance policy itself provide a basis to make an insurance claim under s 28?

The first part of s 28(1) says, in short, if the RFS causes damage, that is deemed to be damage done by fire. If the RFS light a backburn and it burns out a property that is damage done by fire, not deemed to be done by fire. But if the RFS cut a fence or build a fire break with a bulldozer across private property then that damage is not caused by fire but it is deemed to be caused by a fire – that is it will be treated as if it was caused by fire even though it was not.

The second part of s 28(1) says that if there is environmental damage caused by fire the cost of rectifying that damage is to be considered part of the fire damage and must therefore be covered by the damage. The second part of s 28(1) is not completely clear. It does not say that the ‘environmental damage’ must have been caused by the RFS, or ‘any person exercising any function conferred by or under this Division’ nor does it say that the damage must be caused by fire. It cannot, however, mean ‘any remedial work necessary to rectify damage to the environment’ regardless of how the damage was caused. The second part of s 28(1) must I suggest be at least limited to damage by fire and more likely to remediating damage to the environment caused by firefighting efforts. Regardless of the possible limits of s 28(1) given my correspondent says that the damage they are dealing with is erosion which was caused by the firefighting efforts of the RFS, I will assume that it falls within s 28.

Section 28 says that the damage and the remediation costs are to be covered by an insurance policy that covers the damaged property against loss by fire. The test is to ask ‘if this damage was caused by a naturally occurring bushfire, would I be covered for the losses?’ If the answer to that question is ‘yes’ then you will also be covered for losses caused by the RFS and for remediation work. If the answer is ‘no’ then loss by fire is your loss and this damage is also your loss. It follows that indeed ‘for s 28 to be relevant one needs fire insurance cover over the’ property that is damaged. If you have insurance that covers pastures but not bushland then damage to the pasture is covered, damage to the bushland is not.

If a ‘farm insurance policy covers [losses due to] fire’ then it also covers the losses that fall within s 28.  I think that is what is meant by ‘might the farm insurance policy itself provide a basis to make an insurance claim under s 28?’  Section 28 does not create an independent source of compensation, it extends the definition of ‘fire’ in any fire insurance policy to include damage caused by, and remedial action required as a result of, the actions of the RFS. Section 28(2) makes it clear that insurance companies cannot ‘get out’ of that extended definition – they cannot contract out of s 28(1).

Conclusion

If you have an insurance policy that covers an asset from loss by fire, that asset is also insured against damage done by the RFS (or more accurately, by ‘any person exercising any function conferred by or under this Division in good faith’) and for the cost of remediating environmental damage. The first step in applying s 28 is to look at one’s own insurance policy and see that property is insured against loss by fire. That property is also insured against the risks set out in s 28. If the property is not insured against loss by fire (and that may be ‘the bush itself and the mountain’) then s 28 provides no assistance.

Today’s question arises from increased public health demands. My correspondent has:

… a question about a security staff member at an airport ignoring the passenger’s request to be temperature tested at the anterior wrist as opposed to “the company policy” for which she could not provide documentation of, saying she must take the temperature behind the ear. I was behind the passenger and heard her emphatically state she did not want to be temperature tested behind her ear but offered her anterior wrist. As a Paramedic, I know the wrist gives a reading and so did the passenger being tested. The chartered plane security guard refused to test at the wrist even when the passenger spoke to her about autonomy. She would not allow the passenger on the plane without being tested behind the ear. The passenger ended up conceding but was clearly distressed at her autonomy being disregarded. When laypeople are given roles to temperature test, why are they not given the understanding of autonomy? Is there documentation I can provide this security person should I see her again, which is likely as I travel there often. Autonomy is such an important ethical and legal issue.

Respect for autonomy is indeed an important and ethical legal issue and one of Beauchamp and Childress’ ‘Principles of Biomedical Ethics’ (a reference to a seminal textbook on the subject). In the context of medical and paramedical practice, respect for autonomy means health care practitioners have to respect a patient’s own choices and decisions even if the practitioner does not think they are wise choices. Health practitioners as patient advocates may even advocate for the patient’s wishes where what the patient wants is not ‘company policy’.

I’ll give an example using my own jurisdiction. Here in the Australian Capital Territory (the ACT) there are two hospitals with public emergency departments, Canberra Hospital on the south side (ie south of Lake Burley Griffin) and Calvary Hospital on the north side. Paramedics may be treating a person on the south side so Canberra Hospital would be the ‘normal’ destination – if you like the ‘policy’ destination; but the patient may live on the north side and prefer to go to Calvary as that is closer to home and family and therefore their social support. A paramedic may want to advocate for their patient’s choice – talk to co-ord and ask -even argue – to take the patient to Calvary. That would show respect for patient autonomy and other ethical principles may also come to play. In particular the principle of ‘beneficence’ that is it would actually benefit the patient to go to Calvary. But there may be circumstances where it would not benefit the patient. The extra time that it would take may be critical given their condition so the principle of non-maleficence (ie do no harm) says take the person to the Canberra hospital. It may be a busy night and tying up an emergency ambulance by the longer drive to Calvary and then to return to the south side may reduce the service to others so the principle of ‘justice’ would say go to Canberra.  The point is that the patient’s wishes are not the only factor to be considered. The patient can refuse to go to Canberra, can ask to go to Calvary, but cannot insist to go to Calvary even though ACT Ambulance regularly transport patients to both hospitals.

Take a more extreme example, the patient may, for similar reasons, say that they actually want to go to the Royal Prince Alfred Hospital (RPAH) in Sydney.  And even if that would be of some benefit to the patient the ACT Ambulance Service could well say ‘that is not an option’; no matter how much the patient wants it and no matter how much it would advance their autonomy to be taken to the RPAH, ACTAS does not transport emergency patients from Canberra to Sydney just because the patient wants to go there.

Let us consider another example. This time the patient agrees to go to the nearest hospital but says ‘but there’s a social function I promised to go to and it’s very important to me, so I’ll go there first and then go to the hospital’. Respect for patient autonomy means the paramedics cannot override the patient’s choice – they can give advice on why that is a bad choice, but they cannot compel the person to come with them. But they can refuse if the person says ‘can you give me a lift to the social function and stay with me to make sure I’m ok, and then drive me to hospital?’ They can refuse as that would be facilitating the poor choice but equally because that is not a service we offer. A doctor can respect a patient’s choice to smoke, but they do not have to condone it or buy them cigarettes.

What’s the relevance of all that? Respect for autonomy means respecting a person’s choices. For health professionals, the patient is their client or person of primary concern, so they may want to advocate to achieve the patient’s autonomous wishes. But there are limits. They are not required to do what the patient wants (no matter how far that would advance their autonomy) if they do not think it is in the patient’s best interests. Nor are they required to provide the service the patient wants if other principles point to an alternative outcome and in some cases because it’s just beyond the scope of what they can offer.

Where does that put our security guard? I assume that the security guard is not a paramedic or other health professional (of course they might be working a 2nd job, but I’ll assume that’s not the case). First her ‘client’ is not the patient, it’s the airline or airport that have engaged her employer’s services. I think we can safely assume that she’s probably been trained ‘this is how you take the temperature’. The paramedic (my correspondent) and the passenger may know the ‘anterior wrist’ can also be used to take the temperature, but the security guard may not. And no doubt the security guard does not want to act on what the passenger says and then be the person on the news for failing to apply the training they have been given. Taking the temperature at the wrist, rather than behind the ear, like driving a patient to their social function and waiting for them, was simply not a service on offer.

Justice requires the fair allocation of resources. The security guard has to process everyone who wants to get on the plane.  There are costs in delaying flights to ask questions of superiors (‘can I take a temperature at the wrist?’) or to argue with the passenger. The security guard (again I assume) does not know whether there is harm to anyone else if she takes the temperature at the wrist. What if the wrist temperature would be lower than behind the ear so the temperature taken reads at the top of the acceptable range but if taken at the ear would read higher and flag that the patient should not fly? I don’t know if that is possible, and I bet the security guard doesn’t either. But her job is to screen the passengers for everyone’s benefit, not just or even the individual passenger being screened. Unlike a paramedic treating a patient, the passenger’s autonomy is not her primary concern. Her job is concerned with the well-being of the entire flight. Justice says you get screened behind the ear, like everyone else.

But respect for autonomy is not irrelevant. The passenger’s choices have to be respected. If she does not want to be tested behind the ear, or go through a metal detector, or put her carry-on luggage on the machine for inspection, that is indeed her right and choice and it should be respected. Exercising your rights is not however cost free. A person may choose to smoke but that comes with the cost of an increased risk of many diseases. A person may choose not to be subject to airport screening the cost of which is that they don’t get on the plane. Respect for autonomy is to allow them that choice and to respect their choice; it does not compel the airline or the security to offer an alternative.

Telling the passenger that she would not be allowed ‘on the plane without being tested behind the ear’ is respecting her autonomy. Telling a person what the consequence of their choices are but still leaving it to them to make a choice – an informed choice – is respecting autonomy.

For related posts see:

• Facemasks, beards and COVID-19 (March 26, 2020); and
• Patient’s demands do not create a duty to treat (April 11, 2020).

Not surprisingly 2020 has been a busy year on this blog. In 2020:

• I published 231 posts (including this one) which is an average of 19.25 each month.
• 369,345 people visited this blog site and looked at
• 619,903 pages, which is an average of 1.68 pages for each visitor.
• Visitors came from around the world. As expected most (546,438) were from Australia followed by the United States (32,213), the United Kingdom (10,251), Canada (4,187) and New Zealand (3,287). There was only one visitor from 22 places (not all are sovereign countries) such as Cuba, Guinea, the Falkland Islands and Antarctica.
• Apart from the home page, the most popular page was Disaster fundraising for government or charity? (January 5, 2020) which was the first of many posts on the fundraiser established by Celeste Barber that was intended to raise $30 000 for the NSW RFS but which ended up raising $51 million. It was viewed 44,019 times with the majority of those views (43,226) in January 2020.

On 6 November 2020 the High Court of Australia dismissed cases raising objections to the COVID response in WA and Victoria- see Elizabeth Byrne, ‘High Court dismisses challenge to Victoria’s coronavirus lockdown’ ABC News (Online) (6 November 2020). Although the High Court announced its decisions on 6 November, the judges did not immediately publish their reasons. When sharing the story via Facebook, I said “I will report on the judgments if they say anything relevant to the subject of my blog”.

The High Court has published its reasons in Gerner v The State of Victoria but the reasons for the decision in Palmer’s case are yet to be published.

Rather than continue to wait, I report here on the Victorian decision in Loielo v Giles and the High Court’s decision in Gerner. I will come back to the issue of constitutional guarantees and the powers of government to respond in an emergency when the High Court publishes its reasons in Palmer’s case some time in 2021.

Loielo v Giles [2020] VSC 722 (2 November 2020)

This was the decision of the supreme court of Victoria. This was a challenge to the 9pm to 5am curfew imposed on residents of Melbourne by the Stay at Home Directions (Restricted Areas) (No 15). These directions were signed by the defendant, Associate Professor Michelle Giles, an authorised officer and senior medical adviser in the Department of Health and Human Services on 13 September 2020.

Ginnane J said (at [2]):

The Curfew was a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed in Victoria by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness.

The unique nature of the curfew meant the case was listed for an urgent hearing. On Sunday, the day before the hearing was to commence, the Premier announced that the curfew would be lifted from the next day. ‘In those circumstances, the case commenced on the Monday as a challenge to Associate Professor Giles’ decision to direct or order the continuation of the modified Curfew on 13 September even through it had been revoked’ ([3]).

The plaintiff was a business owner whose business was affected by the curfew. She argued (at [5]) that (numbers to the grounds of appeal added by me for clarity):

(1)… Associate Professor Giles’ decision was made a the direction or behest of the Premier, Mr Daniel Andrews, and was not an independent decision. Ms Loielo also contends that the decision was (2) unreasonable, (3) illogical and irrational in the legal sense. Finally, (4) she contends that the decision unlawfully limited her human rights which are recognised by the Victorian Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), especially her rights of freedom of movement and to liberty.

This was a long judgment but in paragraphs [1]-[22] His Honour gave a summary. The summary is reported below, but anyone wanting to see the details of the evidence and His Honour’s conclusions will need to read the entire judgement.

(1); Was it Ms Giles’ decision?

At issue was the fact that Ms Giles signed the relevant order on the evening of Sunday 13 September but the changes and their effect was announced by the Premier at a media conference before the orders were signed.  At [8] Ginnane J said:

… In the particular circumstances of this case, that announcement could have resulted in Giles considering that she should just follow and adopt the announcement rather than making an independent decision. Under the law, Giles, as the authorised officer, had the power to make the decision and not anyone else. That is not to say that she could not discuss the decision she was to make with Department staff and medical and other relevant officers, but she had to make an independent decision, as both parties accepted.

And at [10]:

The importance of the person with legal authority not only making the decision, but being seen to make it, is not just a point of procedure. Far more importantly, it is about the legal principle that the person who has the legal authority to exercise extraordinary statutory power in times of emergency, in this case Giles, actually exercises it. When basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed…

The nature of the various declarations were drafted by the Department and circulated to relevant stakeholders ‘So the Premier, or his office, may be aware of the proposed directions before they are signed’.  The government’s case was ‘Associate Professor Giles was the decision-maker and made an independent decision although she had not been part of discussions that had led to the drafting of the Directions…’ ([11]). Regardless of the propriety of the Premier announcing the effect of the decision before it was made, the court was satisfied that Associate Professor Giles did consider the relevant materials and did make her own independent decision to make the relevant orders. At [19] Ginnane J said:

Ms Loielo’s first ground, that Giles acted at Mr Andrews’ direction or behest, ultimately involves a question of fact. As previously mentioned, deciding whether Giles actually made an independent decision was complicated by the fact that on 13 September, the day when she signed the Directions, Mr Andrews had already announced, in effect, that the Curfew, as modified, would continue. Ms Loielo contended that it was implausible that Giles could make an independent decision in view of Mr Andrews’ announcement that Sunday morning. But, Giles gave detailed evidence that she did make an independent decision and explained her reasoning, I accept that she did so. Her evidence is supported by emails of the Sunday afternoon in which she discussed her consideration of the Curfew, in terms similar to her evidence given to the Court. The plaintiff’s first ground therefore does not succeed.

(2) and (3); The decision was unreasonable, illogical and irrational

At [20] Ginnane J said:

Grounds two and three, the unreasonable, illogicality and irrationality grounds do not succeed, as Giles’ decision to continue the modified Curfew was within the range of reasonable decisions that could have been made.

(4); The Charter of Human Rights

At [21] Ginnane J said:

Ground four raised issues under the Charter about whether Ms Loielo’s human rights to freedom of movement and to liberty had been unlawfully limited by the Curfew. The Curfew limited her rights to freedom of movement and those of about 5 million other people living in the Restricted Areas. The legality of the limitation and restriction then depends on whether Giles’ evidence established that the restrictions or limitations were reasonably proportionate to the objective of protecting public health. Ultimately, I have decided that, taking into account the purpose of the emergency powers and the temporary duration of the Curfew, that Giles’ evidence has established that the limitation of, and restrictions on, human rights caused by the Curfew were, at least in the case of the plaintiff, proportionate to the purpose of protecting public health. Giles’ evidence established that in the emergency circumstances presented by the second wave of the pandemic, that there were no other reasonably available means to achieve that purpose… I am also satisfied that Giles gave the relevant human rights real consideration in approving the Directions. Ground four is therefore not established.

In short, the court found that although the curfew did restrict the human rights of Victorians the decision was an independent decision made by Associate Professor Giles, the decision to impose a curfew was authorised by law and was a reasonable response (which does not mean it was the only reasonable response) to the threat posed by COVID-19 based on the material before Associate Professor Giles. Whilst the curfew did restrict human rights protected by the Victorian charter, ‘The Charter recognises that human rights are not absolute and may be limited, according to the standard of demonstrable justification…’ ([245]) and that ‘Associate Professor Giles’ evidence establishes that the Curfew was reasonably necessary to protect public health’ ([253]).

Gerner v The State of Victoria [2020] HCA 48 (10 December 2020)

This is the first case from the High Court to have the reasons for decision published.  The decision is a unanimous decision of Kiefel CJ, Gageler, Keane, Gordon And Edelman JJ.  This case also dealt with the curfews imposed on Victorians under the Public Health and Wellbeing Act 2008 (Vic).  The plaintiff, Mr Gerner was a restaurateur in Melbourne who alleged he had suffered a significant loss of earnings as a result of the lockdown and therefore had standing to challenge the decision.  Mr Gerner (at [4])

… commenced proceedings in the original jurisdiction of this Court seeking declarations that s 200(1)(b) and (d) of the Act and the Lockdown Directions made thereunder are invalid as an infringement of a guarantee of freedom of movement said to be implicit in the Constitution.

(That the case commenced in the court’s original jurisdiction means it began in the High Court, it did not start in a lower court and end up in the High Court as an appeal from an earlier decision).

It was agreed (at [5]) that to determine the matter, the High Court had to answer this question:

“Does the Constitution provide for an implied freedom for the people in and of Australia, members of the Australian body politic, to move within the State where they reside from time to time, for the purpose of pursuing personal, recreational, commercial, and political endeavour or for any reason, free from arbitrary restriction of movement?”

The court said that the answer to that question is ‘no’.  A summary of the judgment, published by the High Court, says:

The High Court held that no freestanding guarantee of freedom to move wherever one wishes for whatever reason is implicit in the Constitution on any of the three grounds contended for by the plaintiffs. First, the Court held that such a limitation on the legislative and executive power of the Commonwealth and States could not be implied from the fact of federation. Rather, the legal nature and effect of the federation established by the Constitution can be known only from the terms and structure of the Constitution itself; those terms and that structure provide no support for the limitation on power for which the plaintiffs contended. Secondly, the Court held that while legislated limits on movement that burden political communication may infringe the implied freedom of political communication, a limit on movement which does not have a political character will not. Thirdly, the Court held that s 92 of the Constitution does not imply a freedom of movement of the kind for which the plaintiffs contended. Such an implication would render otiose the delineation clearly drawn by the text of s 92 between protected interstate intercourse and intrastate intercourse which it does not purport to protect. It would also attribute to the text a meaning rejected by the framers of the Constitution.