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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 16 hours 34 min ago

Damaging the neighbour’s property to access a patient

6 August, 2020 - 12:21

Today’s question relates to paramedics accessing one property to rescue a person from a neighbouring property. My correspondent says:

I was curious about the legalities in terms of requiring access to private property in order to save a life. An example might be a very sick patient located somewhere in house or back yard. Paramedics are unable to simply take patient out through the front of the property due to house design or space available or something. After consultation with other paramedics, managers, police and fire rescue it is determined that the only way to get the patient out is to remove part of the fence with next door and take patient through next doors property. The neighbour says “No, you can’t come through here”. For paramedics it is ‘take the patient out through next door or sit there and watch the patient die’.

My (admittedly shaky) understanding is that in QLD, under the Ambulance Service Act 1991, authorised officers could require the next-door owners to comply to protect their patient from danger but what about NSW or VIC…

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?
  • Can the private property owners deny access if it means the death of a patient?
  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

The Ambulance Service Act 1991 (Qld) s 38 says:

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) or (b) , an authorised officer may, for that purpose—

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force  as is reasonably necessary; and

(c) bring any apparatus or equipment onto premises; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

That section would give QAS officers the power to enter via the neighbour’s property. That does not mean QAS would not have to pay for the damage – section 39 says:

The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a)        acts done, or omitted to be done, by the officer under section 38; or

(b)       acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

A person could not look to the ambulance officer to pay for the fence, but could look to the State of Queensland. Whether the state would actually be liable to pay would depend on too many factors to consider here.

There is no equivalent to s 38 in either the Health Services Act 1997 (NSW) (dealing with NSW Ambulance) or the Ambulance Services Act 1986 (Vic) but that does not mean there are no powers. In the post The doctrine of necessity – Explained (January 31, 2017) I said:

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In 2008 the High Court of Australia (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ) said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403)…

All of that would justify the sort of action suggested but one might consider that is unfair as the neighbour is left with damage to their property that is inflicted upon them in order to rescue someone else. As there is no ‘duty to rescue’ why should they be left with that cost? And what if the damage is more than just a fence – eg it’s a hole in the wall? The destruction of their building? The loss of their prize-winning garden? But, on the other hand, there is no doubt that a fire brigade can demolish a house that is not on fire in order to stop the spread of that fire –

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses … (Maleverer v Spinke (1538) 73 ER 79, 81).

Conclusions

The questions I was asked were:

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?

Yes, the common law doctrine of necessity would justify that action but agencies should be cautious to consider the damage they are doing and do as little damage as possible. Convenience is not necessity (Murray v McMurchy [1949] 2 DLR 442). It would have to be the only way, not just the most convenient way to rescue the patient.

  • Can the private property owners deny access if it means the death of a patient?

Fundamentally I think they cannot though that would fly in the face of some principles including that there is no duty to rescue because here the neighbour is being saddled with the cost of their neighbour’s rescue. A cost which they are not legally bound to meet but if they cannot prove negligence by someone, they may not recover.

  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

Categories: Researchers

In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’?

6 August, 2020 - 11:41

Today’s question comes from a colleague who queries the advice given by Queensland Ambulance to paramedics regarding an emergency examination authority – see QAS Clinical Practice Procedures: Behavioural disturbances/Emergency Examination Authority (October, 2017). My colleague says:

Were you aware of this from Queensland Ambulance? They are basically saying that if a person is suicidal then they can be detained and transported by paramedics and apparently the “patient’s consent is not relevant”!

I think they have phrased this really badly and really mean that this would apply if the patient cannot give consent…

The law (dealing with EEAs) does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

And just adds confusion at the bottom by saying,

The law (dealing with EEAs) does not affect the operation of section 63 of the Guardianship and Administration Act 2000 in relation to the provision of urgent treatment to an adult with impaired decision-making capacity. EEAs are not required in circumstance were a person with impaired decision-making capacity is in need of urgent treatment to avoid imminent risk to the person’s life, health or safety.

As far as I can tell this section alone would make EEAs irrelevant.

I have previously written about EEAs (see Paramedics and the mentally ill – Queensland – An update (October 14, 2019) and I think that addresses many of the issues raised.

It is important to note that the EEA comes from the Public Health Act 2005 (Qld), not the Mental Health Act 2016 (Qld). The Public Health Act is dealing with people with a ‘major disturbance in mental capacity’ (See Chapter 4A) and prima facie that is not the same as a mental illness. If it was, they would use the same term. What is meant by ‘a ‘major disturbance in mental capacity’ is not, however defined.

Section 157B deals with the power of ambulance officers and police to detain and transport a person. Section 157B(1) says:

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

Example—

a person is threatening to commit suicide

(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.

Subsection 157B(3) says that if the criteria in s 157B(1) are met, then:

The ambulance officer … may detain the person and transport the person to a treatment or care place.

I agree that there is an inconsistency in the QAS document. It says:

Patient consent is not relevant. Irrespective of whether the patient consents or does not consent, if the EEA criteria is met, the EEA is to be applied and the patient transported.

Later it says:

The law dealing with EEAs does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

Those propositions are mutually exclusive. If a person who suffers from ‘a major disturbance in the person’s mental capacity’ is not of ‘sound mind’ then an EEA is not required. Treatment can be given to a person who is incapable of consenting where that treatment is reasonable and in their best interests (see The doctrine of necessity – Explained (January 31, 2017); see also Guardianship and Administration Act 2000 (Qld) s 63 referred to in the QAS document and discussed in the post QAS asked to ‘return’ patients (March 30, 2020)).

If an EEA is to have any value it must apply when a person remains competent even thought they have ‘a major disturbance in the person’s mental capacity’. If, if in those circumstances ‘patient consent is not relevant’ then an EEA does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’. In short an EEA is only required if a person can consent but suffers from ‘a major disturbance in the person’s mental capacity’. The presence of such a disturbance, like a diagnosed mental illness, is not however determinative of whether or not the person retains capacity. If they do not have capacity treatment can be given without an EEA. If they do have capacity an EEA can only work if it does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’.

It is my view that the law on EEAs does affect the operation of the law with respect to a person’s right to make decisions and that is made clear by the use of the word ‘detain’ in ss 157B, 157E and 157L. Further once the paramedics issue an EEA a person may be examined ‘without the consent of the person or anyone else’ (s 157O). That is only relevant if they have the capacity to consent.

My personal concern with the document is the example given where it says ‘An example of a disturbance in mental capacity is ‘person threatening to commit suicide’.

When you compare the Act to the QAS guidance there is an immediate problem. The QAS document says (emphasis in original):

To detain and transport a person under an EEA, paramedics must form the belief that the following criteria are met

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

ii)       the risk appears to be the result of a c (whether caused by illness, disability, injury, intoxication or another reason); and

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

An example of a disturbance mental capacity is ‘person is threatening to commit suicide’.

What QAS have written is simply not consistent with the Act. The example given in the Public Health Act s 157B of ‘a person is threatening to commit suicide’ is an example of something that may indicate that the person is at immediate risk of serious harm. That is, in the Act the example appears after criterion (a) not criterion (b).

A paramedic has to be satisfied that (a), (b) and (c) are all met. The Act says that the threat of suicide is relevant to (a); the QAS document, incorrectly, says that is relevant to (b). The QAS document is clearly wrong.

Although dealing with mental health legislation, not public health legislation, the High Court, in Stuart v Kirkland-Veenstra [2009] HCA 15, had this to say about the link between suicide and mental illness:

  • ‘While attempted suicide may be indicative of mental illness, it is not necessarily so’ ([5], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists…’ ([44], French CJ);
  • ‘… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined’ ([46], French CJ);
  • ‘As is apparent from the structure of s 10, and consistently with the common law history discussed earlier, the fact that a person has attempted suicide or prepared to attempt suicide is not of itself sufficient to support an inference that the person is mentally ill’ ([54], French CJ);
  • ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra’s rational and cooperative responses observed by the officers supported their opinion [that he was not mentally ill]’ ([58], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’ ([91], Gummow, Hayne and Heydon JJ);
  • ‘It is nonetheless important to acknowledge that suicide is often associated with disturbance of “the balance of the mind” or with being of “unsound mind”. This was not always so.

Bracton, writing in the 13th century, recognised the complexity of suicide. Bracton contrasted the case of “a man [who] slays himself in weariness of life or because he is unwilling to endure further bodily pain” from one who “lays violent hands upon himself without justification, through anger and ill-will, as where wishing to injure another but unable to accomplish his intention he kills himself”. The former might have “a successor, but his movable goods are confiscated. He does not lose his inheritance, only his movable goods”. On the other hand, the latter “is to be punished and shall have no successor”. But by the 16th century distinctions of this kind were lost in the general condemnation of suicide as “an offence against nature, against God, and against the King. Against nature, because it is contrary to the rules of self-preservation … Against God, in that it is a breach of His commandment, thou shalt not kill … Against the King in that hereby he has lost a subject, and … he being the head [of the body politic] has lost one of his mystical members.” And of these three causes for condemnation, it was the religious that may be seen as having had chief influence on the later development of the law.

A suicide was buried at night, at a crossroads, and the corpse was defiled. The last recorded instance of this being done in England was in 1823. In Victoria, the Coroners Act 1896, in a provision drawing upon English statutory sources, provided that upon a coroner’s finding of a verdict of suicide (felo de se) it was not necessary that the interment of the body “take place between the hours of nine and twelve at night” and that the coroner could not forbid the performance of any of the rites of Christian burial.

The performance of the rites of Christian burial was not authorised on the interment of the remains of a person who had committed suicide, unless, significantly, the deceased was shown to have been non compos mentis at the time. During the 20th century, perhaps even earlier, coroners or juries would often add to a verdict that the deceased had killed himself or herself, words to the effect “whilst of unsound mind” or “whilst the balance of [his or her] mind was disturbed”. Riders to this effect were added even where there was no medical evidence to support the conclusion.

In these circumstances, the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do. That is, the historical association between suicide and mental illness provides no sufficient basis upon which to impose a duty of care which denies the personal autonomy of the person to whom it is owed. And the provisions of the Mental Health Act not only do not provide such a basis, they reinforce the need to give effect to personal autonomy.

Contrary to the inference drawn by the majority in the Court of Appeal in this case, the premise for the provisions that now appear in s 10 of the Mental Health Act is that a person threatening suicide may or may not be suffering mental illness…’ ([93]-[98], Gummow, Hayne and Heydon JJ (emphasis added));

  • ‘Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness in s 8. The majority [in the Court of Appeal] were not correct to hold that s 10 is to be read as equating a person who has attempted or may attempt suicide with a person who is mentally ill…’ ([147], Crennan and Kieffel JJ);

Again I note that they were dealing with the definition of ‘mental illness’ in the Victorian Mental Health Act (as it then was) not the question of a ‘a major disturbance in the person’s mental capacity’ as required by Queensland’s Public Health Act, but even so the discussion is informative. Given that what constitutes ‘a major disturbance in the person’s mental capacity’ is not defined, one would have to consider the case law and plain English language meaning of those words. As with mental illness if ‘the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do’ it must follow that the threat of suicide does not demonstrate an impaired capacity. The person may be quite rational, orientated as to place and time and have sound reasons for choosing to end their own life perhaps due to “weariness of life or because he is unwilling to endure further bodily pain”.

Again as noted in Kirkland-Veenstra, suicide is no longer a crime (see [45] and [77]). People can refuse treatment in the sure and certain knowledge they will die and some would equate that as suicide.  Whatever perspective one has, for some suicide may be a rational response to their world view and position and therefore not evidence of a ‘major disturbance in the person’s mental capacity’.

Conclusion

As I noted it my earlier post, it may be the case that a person remains competent to make medical decisions but still has ‘a major disturbance in the person’s mental capacity’. In that case treatment can be given without their consent but, as I noted in that post

A court may determine that a finding that a patient retains competence (as defined in, for example, PBU & NJE v Mental Health Tribunal [2018] VSC 564, In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112) means that they do not have a sufficiently ‘major disturbance in the person’s mental capacity’ but equally a court may find that the issue depends on all the circumstances.  Until that issue is resolved paramedics and police will have to make their own decision on whether the patient’s behaviour represents a ‘major disturbance in the person’s mental capacity’ or just an unwise decision.

It may be that if you have capacity, you do not have ‘a major disturbance in the person’s mental capacity’ but if that were the case, there is no need for EEAs. I agree that the QAS have phrased their Clinical Practice Procedure ‘really badly’. By saying that consent is irrelevant but the EEA does not affect the law of consent they are making two mutually inconsistent statements.

Further, the QAS document says ‘An example of a disturbance mental capacity is ‘person is threatening to commit suicide’ but that is not true. The QAS document misquotes the Act. The Act gives the example of suicide as an example that the person is ‘at immediate risk of serious harm’ (criterion (a)), not that they have ‘a major disturbance in the person’s mental capacity’ (criterion (b)). An intention to commit suicide may be evidence of ‘a major disturbance in the person’s mental capacity’ but it will not, on its own, be sufficient to justify action under the Public Health Act.

Categories: Researchers

Clive Palmer’s challenge to WA border closures

5 August, 2020 - 19:52

Today’s question is about Clive Palmer’s challenge to the border lockdown in Western Australia. The matter is still before the court so I don’t have details of exactly what the application is or the arguments made. I’m asked:

Without going into detail about the State laws  could  you please tell me what the relatively  recent  case law concerning s92 of the Constitution points to if a restriction on interstate intercourse was not intended to be discriminatory?

Could you also illuminate the procedure being adopted in Palmer v WA for me. Is it usual for the evidence to be given outside of the State concerned and in the Federal Court? What is the relationship between the Federal Court hearing and the High Court decision, eg do Counsel still address the High Court before they deliberate?

In Mr Palmer’s case I assume that  the event that triggered his cause of action is the refusal of an entry application he made to the WA Police Commissioner some time ago. If the fact that he and the Federal Attorney General allege makes Western Australia’s regime unconstitutional is that it doesn’t discriminate between the risks (ie level of community spread) in the various States,  is the time at which the Court considers whether the legislation was invalid the time that Mr Palmer was refused entry,  the time that evidence is given to the Federal Court or the time when the High Court hands down it’s decision? The practical situation is likely to be very different at each point in time.

They are good questions. I don’t think I could do a better job that refer readers and my correspondent to a blog published by AUSPUBLAW, the Australian Public Law Blog established by the Gilbert + Tobin Centre of Public Law at UNSW. See:

Henry Cooney and Harry Sanderson  ‘Border Closures and s 92: Clive Palmer’s Quest to Enter WA’ on AUSPUBLAW (04 August 2020) <https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/>

I would add this on the relationship between the Federal Court and the High Court. When originally established the High Court would hear ‘first instance’ cases, that is some cases could start in the High Court. As the population has grown more cases arise and that puts demands on the courts. The High Court sits as the ultimate appeal court in all Australian jurisdictions and with only seven judges it is not appropriate for the court to sit as a trial court. The Federal Court was created by the Federal Court of Australia Act 1976 (Cth). As a trail court the Federal Court has the capacity to hear evidence and determine what are the facts.

In this case there are critical issues of fact, what Cooney and Sanderson call ‘the complicated epidemiological evidence required to determine the necessity of the border closure’. The Federal Court will hear the relevant evidence and determine the facts. The High Court judges will then determine how the Constitution applies to the factual situation identified by the judge so yes, counsel will still address the High Court once the Federal court has determined the factual situation.

In these sorts of cases it doesn’t really matter where the evidence is taken. Justice Rangiah is based in Brisbane and I understand Mr Palmer is also based in Brisbane (or at least Queensland) so hearing the matter in Brisbane may have been convenient for everyone involved.

Categories: Researchers

Revisiting evacuations in Melbourne

5 August, 2020 - 17:05

Today’s question revisits an earlier post – Compulsory evacuations in Melbourne (February 8, 2016). My correspondent says that in that post I say:

“under the Emergency Management Act 1986 (Vic) the Minister, during a declared state of disaster can order an evacuation but again, not of anyone with a pecuniary interest.  Police, on the other hand, can declare an area an emergency area and require people to evacuate or leave the area, or allow them to stay under certain conditions.  Their power extends to people with a pecuniary interest and we know that because ss 36B(2) and (3), above, expressly say that this is the case.”

The quoted sections of the Act are:

“36B. Powers in respect of emergency area

(1) If a declaration of an emergency area is made under section 36A, a police officer may exercise the following powers— …

(c) direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d) authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2) Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3) Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a  pecuniary interest  in property in the emergency area or goods or valuables in that property and is on that property.”

Just wanting to clarify something regarding compulsory evacuation of those with pecuniary interest. You state that 36B(3) allows a person to be removed if they are in an area declared as an “emergency area”, irrespective of pecuniary interest. I note that 36B(3) only refers to Subsection (1)(d), not the entire subsection. My reading of that is that a person cannot be forced to leave, but can have conditions placed upon their decision to remain in an “emergency area”?

This is seemingly corroborated by a link you have posted previously (https://ajem.infoservices.com.au/items/AJEM-22-04-02), in which the author states:

“The Emergency Management Act 1986 (Vic) allows police officers to direct a person who is out in the open or in a vehicle to leave the ‘emergency area’ (as declared by the most senior police officer under section 36A of the Emergency Management Act 1986 (Vic)) immediately. ‘Reasonably necessary force’ may only be used to remove persons if it is suspected that an offence against the Act is being committed. Otherwise, force may not be used. Persons with pecuniary interests may however be prohibited from entering their property and persons with pecuniary interests who are already on the property may have a condition placed on their staying. It is unclear if force can be used to remove such persons when the conditions placed on their staying are not met.”

Just hoping to clarify – we were talking about this at work yesterday and just wanted it to be made clear. Are you saying that persons in an “emergency area” can be forced to leave regardless of pecuniary interest?

The Emergency Management Act 1986 (Vic) s 46a says that an emergency area may be declared when (emphasis added) the

… most senior police officer in attendance at an emergency, being a police officer of or above the rank of senior sergeant, is of the opinion that because of the size, nature or location of an emergency it is necessary to exclude persons from the area of the emergency so as to ensure—

(a)        public safety; or

(b)       security of evacuated premises; or

(c)        the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity—…

Section 36B says:

(1)        If a declaration of an emergency area is made under section 36A, a police officer [not just the police officer making the declaration] may exercise the following powers—

(a)        close or cause to be closed any road, footpath or open space otherwise providing access to the emergency area;

(b)       prohibit any person or vehicle from entering or passing through the emergency area;

(c)        direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d)       authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2)        Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3)        Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is on that property.

(4)        …

(5)        If a police officer has reason to suspect that an offence against this Act is being or is about to be committed, the police officer may order a person to leave the emergency area and may use such force as is reasonable necessary to remove the person from the emergency area or to prevent the person from entering the emergency area.

Section 36C(1A) says:

A person who is authorised under section 36B(1)(d) to enter or remain in an emergency area must not, without reasonable excuse, fail to comply with the conditions of the authorisation.

Failure to comply with an authorisation is an offence.

Section 36B(3) allows an authorisation to given to a person with a pecuniary interest when they are on the property of which they have an interest. But equally it must follow that police do not have to give that authorisation. If they are not authorised to be there but cannot be directed to leave (s 36B(1)(c)) what is the value of the ‘authorisation’ when given?

It seems to me that the effect must be that if a person is not authorised to be in the area then s 36B(5) would apply and would allow the police to order the person to leave and use reasonable force to ensure compliance. This could be made clearer if the police phrased it as an authority – ‘I authorise you to be in the emergency area for 10 minutes on condition that you are packing your car and then leaving’.

However the answer is not clear. My interpretation of the various sections is that it is reasonably clear that police can use force to compel a person to leave who has been authorised to stay but has not complied with the conditions of the authorisation even if they are on property for which they have a pecuniary interest. It seems to me that is what ss 36B(3) and s 36C(1) say. But I agree with Loh that it is ‘not clear’.  Further it is not clear what action is to be taken if police refuse to authorise a person to stay. The fact that police can authorise who is on a property where they have a pecuniary interest must also mean they can choose not to authorise that person to stay and that must have some meaning.

My view is that reading ss 36B and 36C together that yes ‘persons in an “emergency area” can be forced to leave regardless of pecuniary interest’. That seems unproblematic if they don’t comply with any conditions authorising them to stay but is less clear if police decline to authorise them to stay. My conclusion is based on the premise that if police ‘may’ authorise a person to stay even if they are on their own property so it must follow that they may also refuse to authorise a person to stay, and that has to have meaning. I think that is also consistent with why an emergency area may be declared. If you want to get everyone out of a building that is at risk of collapsing you want everyone out.

I note however that is inconsistent with the rest of the evacuation processes in Victoria.  Further there is no general power to evacuate people who are not on a road, footpath or open space. It would be also open to a court to find that the section allows police who are evacuating say a park to allow people who are on the road, footpath or open space to stay in the area provided for example they go and stay home. If they leave home they can then be compelled to leave both for breaching the condition and by virtue of s 36B(1)(c).

At the end of the day I would suggest that the sections are poorly drafted and if anyone challenges a direction to leave or a prosecution for failing to comply with an order to leave, some judge will have to sort it out.

Categories: Researchers

Does a paramedic require a first aid certificate to practice in an unregulated health field?

3 August, 2020 - 21:45

This question comes from a registered Paramedic who is

…also a qualified Practitioner [in a health field that is not registered under the Health Practitioner Regulation National Law] and, while this is currently not regulated, the [Professional Association] provides Membership and practice oversight. In order to join as a practitioner and teacher I needed to provide them with evidence of my training as well as my indemnity Insurance … but they also asked me for a current First Aid certificate. When I stated that I am a current registered Paramedic they stated that this didn’t matter and that the law required all health professionals even registered Doctors, nurses and paramedics to produce a current First Aid certificate. They only require HLTAID003 however it is an added expense of course and I find it extraordinary that registered health practitioners would need to provide this by Law. Can you shed any further light on this for me please?

I did ask if my correspondent could direct me to the law they were referring to. They were told ‘that it was a requirement in the National Code of Conduct for Health Care Workers’.

The National Code of Conduct for Health Care Workers is a product of the Council of Australian Governments (COAG). The National Code is set out as Appendix 1 to the COAG communique of 17 April 2015 (see also COAG Health Council Final Report: A National Code of Conduct for health care workers (17 April 2015)). The National Code is a recommendation. On its own it has no legal effect. It was a recommendation of the COAG report that:

That a National Code of Conduct for health care workers in the terms set out in Appendix 1 be approved as the basis for enactment of a nationally consistent code-regulation regime for all health care workers.

and

That jurisdictions use their best endeavours to enact or amend legislation to give effect to the National Code of Conduct and a nationally consistent code-regulation regime for health care workers.

New South Wales, South Australia and Queensland all had forms of a code for unregistered health professionals prior to the National Code.  NSW still retain its code whereas South Australia and Queensland have amended theirs to bring them into line with the National Code. The National Code has been adopted in Victoria: see Public Health Regulation 2012 (NSW) Schedule 3, Health Ombudsman Regulation 2014 (Qld) and National Code of Conduct for Health Care Workers (Queensland), Health and Community Services Complaints Regulations 2019 (SA), Schedule 2 and Health Complaints Act 2016 (Vic) Schedule 2.

The NSW code says (at [3] emphasis added):

(1)       A health practitioner must provide health services in a safe and ethical manner.

(2)       Without limiting subclause (1), health practitioners must comply with the following principles–…

(k)       a health practitioner must ensure that appropriate first aid is available to deal with any misadventure during a client consultation…

The National Code, along with the codes in Queensland, South Australia and Victoria says (at [7] in South Australia, [5] in the other states and the National Code; emphasis added):

1)         A health care worker must take appropriate and timely measures to minimise harm to clients when an adverse event occurs in the course of providing treatment or care.

2)         Without limiting subclause (1), a health care worker must:

a) ensure that appropriate first aid is available to deal with any adverse event …

The question

My correspondent was told ‘that the law required all health professionals even registered Doctors, nurses and paramedics to produce a current First Aid certificate’. I am asked if I can ‘shed any further light on this’ claim. The material above shows that neither the NSW nor the National Code require a registered health professional to have a standard first aid certificate.

The Codes require that a practitioner ‘ensure that appropriate first aid is available to deal with any adverse event’ but does not prescribe any qualifications for that purpose. Having a paramedic on site would be a way to ‘ensure that appropriate first aid is available to deal with any adverse event’.

A registered paramedic could practice their second profession without a first aid certificate and without being in breach of the NSW or National Code. A professional association however may require practitioners to have a first aid certificate, as that makes it easier for the membership secretary to tick off that they have provided the necessary certification. If the paramedic wanted to join that Association they would need to get a certificate or persuade them that Registration as a paramedic means you meet the Code’s requirement and you can and do ensure ‘that appropriate first aid is available to deal with any adverse event’.

One can understand for example that doctors and nurses might have to get a first aid certificate because it may have been years since they have done anything that looks like first aid or CPR. For paramedics, at least those actively employed, providing ‘appropriate first aid’ is their key role – it’s what sets paramedics apart from other health professions (and see the discussion in Eburn M. Registered paramedics, insurance and first aid – looking for coherence in law. Australasian Journal of Paramedicine [Internet]. 2019 Feb.4 [cited 2020 Aug.1];160. Available from: https://ajp.paramedics.org/index.php/ajp/article/view/663). The problem is that paramedics, and readers of this blog may have a view of what paramedics do and what paramedic registration means, but others may not.

Conclusion

The NSW Code of Conduct and the National Code of Conduct for Health Care Workers adopted in Queensland, South Australia and Victoria require a person practicing as an unregistered health professional to ensure that appropriate first aid is available. They do not prescribe the qualification to meet that requirement. It is up to the practitioner to determine what is ‘appropriate first aid’ and how they will ensure that it is available. If the practitioner is also a registered paramedic he or she may quite reasonably believe that their presence (along with any necessary equipment, eg a first aid kit and an AED) meets these requirement. The Codes do not require the practitioner to have an HLTAID003 first aid certificate.

A professional Association can of course set its own membership requirements. They could insist, as part of their rules, that a potential member have an HLTAID003 first aid certificate but that is a different matter and not a matter of law.

Categories: Researchers

Common law and constitutional rights (again)

3 August, 2020 - 20:47

This email was received before I made my post State of Disaster declared in Victoria (August 3, 2020) and therefore before I said ‘Further correspondence will not be entered into’. In light of that and given that they are serious questions, I’ll answer them.

My correspondent says:

I would like to know if during declared states of emergencies:

  1. Is the Constitution temporarily suspended?
  2. If so, when is the suspension lifted, how would people know?
  3. If it is suspended, is this legal and lawful to do according to the Constitution?
  4. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?
  5. Is the constitution simply never suspended regardless of what ‘state of emergency’ is taking place or has been declared?

Your blog stated: “The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact.”

Does this therefore legally invalidate any declaration of a state of emergency as well?

In relation to all that is happening with “mandatory” face mask wearing, I’ve been trying to research constitutional law and any precedents that may exist.

I have found that Magistrate Duncan Reynolds in Melbourne, in July 2013 stated that following:

“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory surge of such power”

In addition, Justice Stephen Kaye said in a Melbourne Supreme Court Ruling on November 25, 2011:

“It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

I understand this is a very long message, and I apologise for that, but in this world ruled by language and legalise, I am a mere common man doing my utmost best to ensure that I retain whatever rights and freedoms have been guaranteed to me and all people through Common Law and the Constitution.

The numbered questions

The answers to the numbered questions are:

  1. Is the Constitution temporarily suspended?

No, the (Australian) Constitution is not temporarily suspended. The Emergency Management Act 1986 (Vic) s 24(2)(b) says that during a declared state of disaster

… if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

The Constitution of Victoria is an Act of the Victorian Parliament (Constitution Act 1975 (Vic)). Presumably the Minister could ‘suspend’ parts of the Victorian Constitution where the criteria in s 24(2)(b) have been met.

  1. If so, when is the suspension lifted, how would people know?

On the basis that I think we’re talking about the Australian Constitution there is need to answer that question as there is not, and cannot be any suspension.

  1. If it is suspended, is this legal and lawful to do according to the Constitution?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. Is the constitution simply never suspended regardless?

Yes, the Australian constitution is never suspended.

Other questions:

Does the absence of Commonwealth emergency management legislation ‘legally invalidate any declaration of a state of emergency as well?’

Answer: No, they’re unrelated. The States are not subservient to the Commonwealth in the way local government is subservient to state government. The States do not need ‘authorising’ Commonwealth laws. The States can make laws on any subject they like other than those subject areas that are in the exclusive power of the Commonwealth. The presence or absence of Commonwealth emergency management legislation means nothing about the validity of state emergency management legislation.

The cited case law

The cases cited appear to come from a website Police Powers – Our Rights and Responsibilities. I’m not sure who the authors are and they don’t give the case names or citations. Finding decisions of magistrates is very difficult (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)). I infer that the decision by Kaye J was his decision in DPP v Hamilton [2011] VSC 598 ((25 November 2011).

In that case Mr Hamilton was approached by police who wanted to ask questions about whether he had left a restaurant without paying the bill. Mr Hamilton ran away and was pursued by police. He was charged with a number of offences all of which were ultimately dropped leaving only a charge of resisting a police officer in the execution of his duty. The court held that Mr Hamilton was not guilty as the police officer had no authority to detain him and therefore running away was not resisting the officer in the execution of his duty.

His Honour said (at [3]):

At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him.

The quote ascribed to Kaye J in my correspondent’s question does not appear in the judgement. That is His Honour did not say

It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

The second sentence in that quote – ‘The conferring of such a power …’ was the submission of one of the lawyers, not the judge’s reasoning (see [36]).

It is however true that without a specific statutory obligation, a person is not obliged to answer police questions or provide details of one’s identification. In Victoria s 456AA (see Policing the public health response via Facebook (July 27, 2020)) does require a person to provide identification details in the circumstances set out in that Act. In New South Wales a person has to provide identification if they are:

  • driving or accompanying a learner driver (Road Transport Act 2013 ss 175 and 176);
  • responsible for a vehicle where the driver is alleged to have committed an offence (Road Transport Act s 177)
  • involved in a traffic accident (Road Rules 2014 (NSW) r 287);
  • the owner, driver or passenger in a vehicle that police suspect has been used during the commission of a serious offence (LEPRA s 14);
  • suspected of committing an offence on a public passenger service (Public Transport Act 1990 (NSW) s 55).
  • suspected of being under 18 and carrying or consuming alcohol in a public place (Summary Offences Act 1988 (NSW) s 11);
  • suspected of being at or near the scene of a serious offence and police believe that they have information that would assist them (LEPRA s 11(1)).

A person is also required to confirm their identity if police:

  • or a sheriff’s officer is trying to serve a fine default warrant (Fines Act 1996 (NSW) s 104);
  • are trying to issue a penalty notice (Criminal Procedure Act 1986 (NSW) s 341);
  • have emergency public disorder powers and the person is in a target area, and the police suspect that they have been or may become involved in public disorder (LEPRA s 87L);
  • suspect that an Apprehended Violence Order has been made against the person (LEPRA s 13A);
  • give a ‘move-on direction’ and the person’s identity is unknown to the police (LEPRA s 11(2)).

This list should not be considered as comprehensive. There may be other provisions in specialised legislation that compel people to confirm their identity.  There are many examples that regardless of any common law position, the legislature has made laws that do require people to provide information to police.

An issue in DPP v Hamilton was whether statutory changes allowed police to arrest for the purposes of investigation. At common law, the only purpose of arrest is to put a person before a court. Police had to already have ‘reasonable suspicion’ that the person had committed the offence and have at least prima facie evidence to justify an arrest (Williams v R [1986] HCA 88). Legislatures have now provided that between the arrest and putting the person before a court, the person may be held for the investigation period to allow police to undertake further investigation (see Crimes Act 1958 (Vic) s 464 to 464H). An argument in DPP v Hamilton was that these changes allowed an arrest for the purpose of investigation. The court held that it did not, police could still only arrest if they had the evidence and formed the view that they intended at that time to prosecute the offender (see [35] and s 464I).

At best this decision confirmed that at common law, police do not have a power to stop a person to ask them questions and 464 to 464H of the Crimes Act 1958 (Vic) did not change that. His Honour was not considering the power under s 456AA of the Crimes Act or any other legislative power as there was no suggestion that was the power the police were trying to exercise.

Conclusion

Whatever rights and freedoms are guaranteed to you ‘and all people through Common Law and the Constitution’ are very limited.

Any common law rights are subject to modification by Parliament. If that were not the case we would still be ruled by laws from the 12th century, woman would lose property on marriage and men could still discipline their wives provided the cane was not larger than their little finger. Laws have to be updated and that is what Parliaments can and do do – see Common law rights v Parliament’s legislation (May 17, 2020).

The Australian Constitution does not guarantee any rights other than the right to take part in the democratic process. As the authors of Emergency Powers in Australia (2nd ed, Cambridge, 2019) say (at pp. 67-68):

The Constitution contains no general individual rights protections of the sort found in most contemporary constitutions. Therefore, statutory conferrals of emergency powers are not amenable to challenge on the basis that they infringe human rights.

There is no bill of rights in the Australian Constitution so the ‘rights and freedoms … guaranteed to [you] and all people through … the Constitution’ are very limited indeed.

 

Categories: Researchers

The Celeste Barber fundraising saga continues

3 August, 2020 - 18:58

At comedian Celeste Barber’s request, people from around the world donated $51 million to the NSW Rural Fire Service & Brigades Donations Fund. Donors and Ms Barber were shocked to find that if you donate money to a charity, it can only use the money for the purposes for which it was established and not for whatever purpose donors may later think is a good idea. The Fund went to the Supreme Court to get guidance on what they could do with the money and the Court confirmed that they could only use it for the purposes for which they receive funds. Greens MP David Shoebridge introduced a Bill to the NSW Parliament to allow the trustees to spend money in ways that some donors may have intended but for which the trust was never established (see all the posts appearing here: https://emergencylaw.wordpress.com/?s=celeste+barber).

The latest step is that on Friday 31 June the NSW Legislative Assembly Portfolio Committee No. 5 handed down its report on the Bill. You can read the report here. The Committee made three recommendations; they are:

Recommendation 1

That the NSW Rural Fire Service establish a Rural Fire Service Volunteers Benevolent Fund, with this Fund administered cooperatively by the NSW Rural Fire Service, the Volunteer Fire Fighters Association and the Rural Fire Service Association, so that immediate support can be provided to volunteer firefighters who have been injured and/or who have lost their homes to fires during the course of their volunteer duties, and to the families of firefighters who have lost their lives.

Recommendation 2

That the NSW Rural Fire Service and Brigades Donations Trust allocate an initial start-up budget for said Benevolent Fund from any unallocated donated monies originating from the Ms Celeste Barber fund in the NSW Rural Fire Service and Brigades Donations Fund as at 31 July 2020.

Recommendation 3

That the Legislative Council proceed to debate the Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020, and that the committee comments and concerns identified by stakeholders as set out in this report be addressed during debate in the House

Recommendations 1 and 2 are not related to the Shoebridge Bill. The suggestion of a benevolent fund came from the Volunteer Fire Fighters Association (see [2.41]). The Supreme Court said that the trustees could they could use the donated funds for the purposes of ‘setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting’ (see Judgment from the Supreme Court regarding Rural Fire Service Donations Fund (May 25, 2020) see also [1.13] of the Report). The court did not say that funds could be used for the benefit of firefighters who had lost their homes so I’m not sure why that is considered a permissible use. The Volunteer Fire Fighters Association did not provide written submissions nor is the extension – from ‘firefighters injured while firefighting’ to ‘firefighters who have been injured and/or who have lost their homes to fires’ is justified.

The first recommendation was directed to the RFS and the RFS could make those sort of payments, and the evidence is that it has done so (see [2.33] of the report). It is not clear to me, given the Supreme Court judgement how the trustees could put money into that fund other than for firefighters killed or injured, but not those that lost their homes. That may however been an over strict reading of the judgement so, for the sake of argument let us assume this would be a permissible use of the funds. On that assumption recommendations (1) and (2) are urging the RFS and the Trustees to ‘get on with it’.

As for the Bill itself it would, if passed allow the trustees wider discretion on how to use the money. You can read the Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020 (NSW) here. The key provision says:

Despite the terms of the deed, the trustees may pay or apply relevant trust money for the purpose of providing support or assistance to any one or more of the following—

(a) the families of volunteer rural fire fighters killed while providing rural fire services,

(b) volunteer rural fire fighters injured while providing rural fire services,

(c) people and organisations providing care to animals injured or displaced by bush fires,

(d) people and communities that are significantly affected by bush fires.

For the purpose of the Bill ‘relevant trust money means gifts or contributions received by or on behalf of the trust during the period commencing on 1 November 2019 and ending on 1 February 2020.’

The Committee noted arguments for and against the Bill including that the date range extended beyond Ms Barber’s fundraising efforts so would catch donations made by people who were not responding to her request. The Committee report was balanced giving arguments in favour for, and against the Bill. I won’t try to summarise them here, people can read the report if they are interested.

The final recommendation was that ‘the Legislative Council proceed to debate’ the Bill. That is very neutral. They could have recommended against any further progress of the Bill and I suppose that would have been the end of it. They did not do that but they do not recommend that the Bill be passed, only that it be debated so that the MPs can make their own decision based on the arguments for and against in the report, their own views and no doubt the views of those in their electorates.

Conclusion

Back on 16 January 2020 (see Trust operations 101) I said:

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

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

I don’t think anyone would or has seriously suggested option 3. We’ve had a review by the Supreme Court and the advice from Justice Slattery. Now we’re at the stage of seeing whether the NSW Parliament will adopt option 1. This report is just a step along the way. Now we have to see whether the government will allow debate on the Bill and if they do then its up to the MPs to decide. There’s more to come.

Categories: Researchers

State of Disaster declared in Victoria

3 August, 2020 - 09:08

As the latest step to try to deal with COVID 19 a state of disaster has been declared in Victoria. Normally I would write about what this means but on this occasion Anne Twomey, Professor of Constitutional Law at the University of Sydney has beaten me to it with this excellent piece in The Conversation Explainer: what is a ‘state of disaster’ and what powers does it confer? (August 2, 2020).

She says, inter alia,

The declaration of a state of disaster gives the police minister responsibility for directing and co-ordinating the activities of all government agencies. The minister may also allocate government resources as necessary to respond to the disaster.

The minister can direct government agencies to act or refrain from acting in particular ways to deal with the disaster. Such a direction prevails over anything to the contrary in any state law.

One of the most extreme powers the minister has is to override legislation. For centuries, it has been accepted in Australia and the United Kingdom that governments do not have executive powers to suspend or dispense with the application of the law set out in statutes.

In this case, however, it is a statute that is giving the minister, during a state of disaster, the power to declare that the operation of the whole or any part of an Act or legislative instrument is suspended.

Reassuringly, there are strict limits placed on this power. The minister can only exercise it if they believe compliance by a government agency with the provisions of an Act or instrument that prescribes the agency’s duties or responsibilities, would inhibit its response to the disaster.

Other relevant powers conferred on the minister include the power to control movement within, and entry into or departure from, the disaster area (which is the whole of the state) or any part of it.

Victoria also declared a state of disaster during the 2020 summer bushfires – see State of disaster in Victoria (January 2, 2020).

To the correspondent who asked me ‘Does a declaration of a State of Emergency or Disaster in Victoria really give the government enforceable powers or is it symbolic’ as I described in my post What is a ‘national emergency’? (December 25, 2019). The answer is yes, a declaration of a State of Emergency or Disaster in Victoria really does give the government enforceable powers. The difference between Victoria (and all the states and territories) and the Commonwealth is that the states and territories have emergency management legislation providing for a declaration and what it means. The Commonwealth does not.

Further correspondence will not be entered into

Correspondence about whether the Emergency Management Act 1986 (Vic) is in fact law and whether or not this is a good decision will not be entered into.

To those that want to write to me to argue that this action is contrary to the Australian Constitution, Magna Carta (1215) the Bill of Rights (1688), the Universal Declaration of Human Rights (1945), the Charter of Human Rights and Responsibilities Act 2006 (Vic) or some other rule, please don’t. It isn’t and even if it is, it doesn’t make it invalid (see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(5); see also Common law rights v Parliament’s legislation (May 17, 2020)).  If you really think there is an infringement of one of these rules, please take the matter up with the Victorian Supreme Court or the High Court of Australia and help develop the jurisprudence (see Challenging COVID restrictions – part 1 (April 23, 2020).

If you think it’s an overreaction as there have only been 208 deaths in Australia (as at 2 August 2020 at 4:01pm) then look at the numbers coming out of other countries. Remember that in the USA COVID has taken more lives than combat in WWI. If Australia’s death toll is relatively small it is because of action taken, not because the disease is not virulent. Pointing to the low death toll is like complaining about the money spent on fire mitigation if next year there is no major fire when of course the point of mitigation is to prevent or minimise the impact of the fire. The fact that there is no fire (or a low disease death toll) does not demonstrate that the action was or is unnecessary.

To those that want to write to me to argue that this is a gross over reaction to what is basically ‘the flu’ please don’t. Unless you have a PhD in epidemiology or medical science and access to all the information and advice that the Minister and the Chief Health officer have, your opinion is unhelpful.

And if you want to tell me that this is all a fraud by the UN, WHO or a secret new world government and the Bill Gates Foundation aiming to inject microchips via compulsory vaccination (noting that there is no vaccine for COVID-19) then I understand Bunnings has a new range of tin-foil hats – see https://www.facebook.com/watch/?v=321163975914746.

Categories: Researchers

An unreserved apology

2 August, 2020 - 22:56

In a recent post I accidentally left the name of my correspondent attached to the question that was posed. For this I offer an unreserved apology. It is my practice to always maintain the confidence of my correspondent’s identity. Of course I cannot help it if people ‘in the know’ can infer who a correspondent is but it is my practice to always remove, and keep confidential, identifying information. On this occasion that did not happen.

The post has been deleted and to that person again I offer my apology. To future correspondents I confirm that it is my intention to continue to keep confidential the names of people who write to me.

Categories: Researchers

Private charity as NSW Ambulance community first responders

1 August, 2020 - 13:12

When I wrote my post Paramedics and drawing professional boundaries (July 30, 2020) I did think it had been some time since I’d received any questions. Between then and now I now have 8 questions/comments to respond to!  If you have written to me ‘watch this space’ as I try to get through them, generally in the order received.

The first question relates to Chevra Hatzolah, a private ambulance service operating in Sydney, Melbourne and around the world, but this question relates to their Sydney (ie NSW) operations. My correspondent asks:

I wonder where non-secular jurisdictional services fit in here. In Sydney and Melbourne for example, I have come across Hatzolah, a charity serving their respective religious communities as an ambulance service. In NSW they have received funding in form of training and equipment from NSW Health and they respond to call outs in NSW Ambulance uniforms. Their webpage states:

‘Hatzolah should be called:

– for all medical emergencies

– to bandage a serious injury

– if you are involved in a car accident or witness a pedestrian struck

– even when in doubt. We are happy to assist patients that don’t turn out to be as serious as previously thought’

There have been a few interesting incidents with Hatzolah attending as they do not respond to calls from outside their religious community. Apart from the obvious question, ‘How is that legal?’, I wonder whether they fall under the private ambulance service banner or do they qualify as jurisdictional service due to the NSW Ambulance uniforms and equipment?

All I know about Hatzolah I know from their website https://www.hatzolah.com.au/ so the answer may not be comprehensive. The ‘when to call’ information, quoted above, can be found at https://www.hatzolah.com.au/about-us/.

On the news page they report ‘Hatzolah’s Bondi Lifesavers’. This is a report of an incident of ‘August 30’ but they don’t say which year. In that story they say:

SIX Jewish volunteer lifesavers from Hatzolah helped save the lives of two Indonesian Muslim teenagers who nearly drowned at Bondi Beach on Tuesday (August 30).

Hatzolah’s Mendy Litzman said his volunteers responded in less than two minutes when the call for help came through after the boys were rescued from the surf by Bondi lifeguards.

“We received the 000 call that patients weren’t breathing and we assisted straight away,” Litzman said.

“We assist everyone regardless of religion, race or gender, and I’m proud that we were able to help the teenagers that were plucked from the surf.”

I will accept their version, and that it is not true that ‘they do not respond to calls from outside their religious community’ so I won’t address that claim any further.

Also on their news page they report:

PARTNERSHIP WITH NSW AMBULANCE

Rabbi Mendy Litzman is the founder and President of Hatzolah in Sydney. Hatzolah started responding to emergencies in June of 2006. Since our inception we have rendered care for the sick and injured in the Jewish Community and anyone who calls.

Read the reports from NSW Ambulance.

Partnership with NSW Ambulance

Hatzolah Becomes an Accredited CFR Unit

The links to the website of NSW Ambulance but the specific pages are no longer at those links nor can I find relevant pages with a search of the Ambulance Service website. But let us assume for the sake of the argument they are a CFR (Community First Responder) unit.

NSW Ambulance operates cooperative arrangements to create community first responders now called ‘clinical volunteers’.  NSW Ambulance says (at (https://www.ambulance.nsw.gov.au/get-involved/volunteer)

NSW Ambulance operates a number of clinical volunteer responder models across metropolitan, regional, rural and remote NSW…

Over 350 clinical volunteers provide first response clinical care to our patients in approximately 60 locations.

These programs are an important part of building the resilience of small communities and minimising the time between calling for help, and receiving initial care from clinically skilled responders, until paramedics arrive. This leads to improved patient outcomes.\

I will infer that Hatzolah is part of the ‘clinical volunteer responder’ network.

The Health Secretary is to ‘provide, conduct, operate and maintain ambulance services’. To that end he or she may ‘co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance service’. He or she is also to ‘consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services’ (Health Services Act 1997 (NSW) s 67B).  Further ‘The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers’ (s 67H).

Akin to a debate that’s been discussed here, the NSW RFS is the combat agency for fires in a rural fire district but that means they are to coordinate the response, it does not mean that RFS brigades are the only responders. The RFS can call on others such as the FRNSW, National Parks, the private sector or anyone that can assist (see Coordinating firefighting with NSW RFS, FC and NPWS (February 29, 2020). The Health Secretary may be responsible for ensuring that there are ambulance services available to members of the NSW community but that does not mean those services can only be provided by NSW Ambulance.

It is illegal (s 67E) to

(a) … directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

Even if Hatzolah are not getting any fees they are still operating for ‘reward’ in the broad sense of achieving their purpose and objective and providing a valuable service to their community (see Castle v Director General State Emergency Service [2008] NSWCA 231). One assumes that Hatzolah have specific authority under s 67E but if they don’t the Health Secretary’s consent must be inferred by the decision to task Hatzolah in response to triple zero calls.

The legal status of Hatzolah is not clear but I would infer that the volunteers are appointed by Hatzolah to Hatzolah, they are not appointed by the Health Secretary to NSW Ambulance so I would infer that they are not honorary ambulance officers (though they maybe, I just don’t have those details).

It would appear that Hatzolah is providing an example of what might be called a ‘public/private partnership’ where Hatzolah is cooperating with the Health Secretary to provide ambulance services in Sydney’s Eastern Suburbs. It might also be akin to a visiting medical officer at a public hospital. The doctor has the right to admit patients for treatment but, in return, agrees to treat public patients as well. It would appear that Hatzolah accept private patients (ie you can call them direct) as well as public patients if they are allocated a task by NSW Ambulance via the Ambulance ComCen and the triple zero call process.

The question

The question I was asked was ‘I wonder whether they fall under the private ambulance service banner or do they qualify as jurisdictional service due to the NSW Ambulance uniforms and equipment?’ I suggest it’s a bit from A, and a bit from B.

They are clearly a private ambulance service but when responding to an incident at the request of NSW Ambulance they are providing a service as part of the ambulance services provided by NSW. In that sense they are part of the service provided by the jurisdictional ambulance service but of course subject to their own structures and the terms of any consent issued by the Health Secretary. They are not part of “NSW Ambulance” but they are part of the ambulance services provided to citizens of NSW in the same way that CFR units operated by NSW SES (https://www.ses.nsw.gov.au/volunteering-details/community-first-responder/) and NSW Fire and Rescue (https://www.facebook.com/frnsw/posts/community-first-responders-play-a-vital-role-in-small-communities-across-nsw-and/3246649385369616/) are part of those services.  The first responders with FRNSW and NSW SES are also trained by NSW Ambulance and wear NSW Ambulance vests over their uniforms in the same way the Hatzolah volunteers are shown to do in the photos on their webpage.

Conclusion

It would appear (based solely on their website) that Hatzolah form part of the community first responder network established by NSW Ambulance. They are not part of NSW Ambulance, they are a private provider, but they work with and coordinate with NSW Ambulance. That doesn’t make them part of NSW Ambulance but it does make them part of the ambulance services provided to the citizens of NSW.

Categories: Researchers

Paramedics and drawing professional boundaries

30 July, 2020 - 23:02

Today’s question comes from a Queensland paramedic who is a very difficult situation. There is a

… house very near to my own private residence which the occupiers all suffer with a variety of mental health conditions and social issues. Despite my efforts, the occupants are now aware that I am a paramedic with the state ambulance service, and they will on occasions make approaches to me when I am at home for advice on health matters. Last weekend I was woken by the matriarch of the house requesting that I assess her grandson who had allegedly been given illicit drugs the night before.

The matriarch has previous form for making health ombudsman complaints against other health practitioners, and I am aware that she is currently shopping for a lawyer to take on a case of medical negligence for the doctors involved in a previous hospital admission for her husband. With this in mind, I transported the drug affected grandson to the local hospital with his grandmother for further assessment.

I am trying to balance any risk between being a good neighbour and my professional registration. Is there a risk to my registration from any advice that I give to these people?

This is indeed a very difficult situation. As a general rule there is no duty to go to the aid of a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) so you would be in within your rights to tell them to call triple zero if they thought it was an emergency or otherwise make their own arrangements. But that is not helpful if they have a distorted view of the world and may make your life difficult.

Further one has to recall the case of Lowns v Woods (1996) AustTortsReps ¶81-376. In that case Dr Lowns was liable for failing to render assistance when requested even though he had no prior doctor/patient relationship with the patient. Critical in that case was that he was approached because the family knew he was a doctor (as with my correspondent). Critically, also, Dr Lowns was at work, he was at his surgery ready to see, but not yet seeing patients and there was no impediment to his attending. That would not be the same with my correspondent who is clearly not at work and in some cases may be unable to attend. Whether that is because he or she has already had one or two cleansing ales or is caring for children or has dinner on the stove or has just come off shift or any number of an infinite number of reasons.

Another key factor in Dr Lowns’ case was a provision in the then Medical Practice Act that provided it was unsatisfactory professional conduct to fail to render assistance in an emergency. There is no equivalent provision in the modern Health Practitioner Regulation National Law.  On balance I would suggest that finding that there would be a legal duty to provide any assistance would be difficult – even unlikely – but that’s probably what Dr Lowns’ lawyers told him, too.

The Paramedicine Board’s Code of Conduct (Interim) (June 2018) says (at [2.5]):

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

There is an expectation that good paramedic practice includes rendering assistance in an emergency but that begs the question of whether the events being described are, objectively speaking, an ‘emergency’.

The Code of Conduct also says (at [8.2]):

Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner’s own personal views, feelings and relationships which are not relevant to the therapeutic relationship.

Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves:

a) maintaining professional boundaries…

I’m not suggesting that my correspondent is not maintaining professional boundaries, but the family are not. Of course they are not bound by the Code of Conduct but it would be reasonable for my correspondent to try to establish those professional boundaries, ie to say ‘I’m at home and am not on call as a personal paramedic’; but one has to be careful if there really is an emergency.

Queensland does not have ‘good Samaritan’ legislation like other states. The Law Reform Act 1995 (Qld) s 16 says

Liability at law shall not attach to a medical practitioner, nurse or other person prescribed under a regulation in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency…

But there are no other prescribed persons and my correspondent is a paramedic, not a ‘medical practitioner’ or ‘nurse’.

The Civil Liability Act 2003 (Qld) s 26 says:

Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—

(a) the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and

(b) the first aid or other aid or assistance is given in circumstances of emergency; and

(c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

A prescribed entity for the purposes of s 26 includes ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’ (Civil Liability Regulation 2014 (Qld) r 4 and Schedule 1).  Queensland Ambulance is also a prescribed entity for the purposes of s 27 that seeks to ensure that a prescribed entity is also not liable. In State of Queensland v Roane-Spray [2017] QCA 245 (discussed in State of Queensland STILL liable for paramedic negligence (October 25, 2017)) the Queensland Court of Appeal held that amendments to the Ambulance Services Act meant that

…the Queensland Ambulance Service, in its present form (as it was at the time of Ms Roane-Spray’s injury) is not a body corporate, and does not represent the State. It is an unincorporated body, an entity within the meaning of that term in schedule 1 to the Acts Interpretation Act 1954 (Qld), which consists of the commissioner, ambulance officers, medical officers and other staff members employed under s 13, from time to time. It is in that respect similar to an unincorporated club or association, which is comprised of its members from time to time.

The relevant defendant given the structure of the Act was the state of Queensland and the State of Queensland is not a prescribed entity for either ss 26 or 27.

One would infer that my correspondent, even if responding to the neighbours was part of his or her duties as a QAS paramedic would not enjoy the benefit of s 26 as he or she would be performing ‘duties to enhance public safety for’ the State of Queensland (the putative employer of QAS paramedics, not the Queensland Ambulance Service that has no independent legal existence (Ambulance Service Act 1991 (Qld) s 13).

Let me then turn to my correspondent’s question: Is there a risk to my registration from any advice that I give to these people? I cannot see any risk to registration in answering questions and providing generic advice (such as I do on this blog) provided the advice is professional and often that will require statements such as ‘I cannot make a diagnosis’, ‘I don’t have the equipment’ and ‘you should go and ask your doctor’.  There could be a risk if you provide advice you are not really in a position to give and the people rely on it or even if you qualify the advice and realise that they may still rely on it. The best advice may often be ‘you really need to go and see your doctor if you are worried about …’

In the story we’re told, my correspondent has been asked for assistance and has gone above and beyond the call of duty to respond. The question in disciplinary proceedings (which is where the risk to registration comes form) is how would other paramedics view the behaviour. Unsatisfactory professional performance is conduct of ‘the practitioner … below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  Would other paramedics judge the conduct in that way?

Transporting the person to hospital is, I would suggest, imprudent. First it means that my correspondent is driving the car not providing patient care. If the person needs to go to hospital a more prudent response would be to call triple zero so the patient can receive care en-route from paramedics equipped with necessary drugs and therapeutic agents and where proper records of treatment etc can be maintained. If the patient went ‘flat’ en route there could be a risk to registration if other paramedics judged that a practitioner of ‘equivalent level of training or experience’ would have judged that the risk to the patient’s well being of being transported in a private car existed and could easily be avoided by calling for an on-duty ambulance crew.

We can all imagine cases, however, where further assessment may be justified but the case does not need an emergency ambulance; the sort of cases that fill paramedic facebook pages and ‘Save 000 for emergency’ campaigns. As neighbours we are free to offer to assist our neighbours who would benefit from being ‘checked over’ but who don’t need an emergency ambulance.  That makes sense if we are close friends, but I would infer that is not the case here. But the point of drawing that out is to show that one cannot say one should ‘always’ or one should ‘never’ do anything; the ‘right’ response depends on all the circumstances and the professional assessments made.

Equally, and hence the quote from the Code of Conduct, I don’t see that it would be open to find ‘Unsatisfactory professional performance’ if my correspondent refused to give advice and certainly if he or she refused to personally transport anyone to hospital. It would be open to any professional as part of maintaining professional boundaries to tell the neighbour that if they needed ambulance assistance, they should call triple zero and if they need to go to hospital but don’t need an ambulance call a taxi if they cannot drive themselves.

But again we cannot say there can never be a duty to help. We have been given the story in a particular way that no doubt colours all our views, but one can imagine that fellow professionals would think it ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ to ignore cries for help from a neighbour with an infant child who says their baby is not breathing. I don’t think we can safely say it can never be expected that once a health professional is off duty, they can simply turn a blind eye to every request, just as Dr Lowns could not ignore the request from Ms Woods to come and help her brother; but consideration of all the circumstances would be relevant.

Conclusion

I am concerned about my correspondent’s position. A professional at home is at home and cannot be expected to provide a 24 hour medical service. Equally a health professional at home is still a health professional and a neighbour may well call them for help in circumstances where there are genuine threats to life and the professional neighbour is the only person with the skills to intervene. In between are many circumstances.

The Code of Conduct (Interim) recognises the limitations in providing care in an emergency where one has to consider all the circumstances, as well as the need to maintain professional boundaries which includes, I suggest, not turning one’s home into a clinic for demanding neighbours.

How my correspondent is to balance ‘being a good neighbour, professional obligations and ethics and the right to have a private life is a matter I cannot advise on. I can say that giving advice and assistance to the neighbour does not per se pose a threat to registration- there is nothing improper about helping those that ask for it should you chose to do so and the Code of Conduct expects that in a genuine emergency a professional will assist if they can. Equally refusing to attend and certainly refusing to provide personal transport and instead calling triple zero would not pose a risk to registration either. It follows that I would be very careful about adopting a policy of refusing to attend any request by a neighbour, but equally I would be very careful about ensuring those professional boundaries and not becoming their private paramedic and I would be very cautious about actually driving a neighbour who is not a close personal friend to hospital.

At the risk of ‘stepping out of my lane’ I would suggest that this issue needs careful management. My correspondent should think about raising the matter with peers for advice as well as with the QAS. It may be that if the situation becomes a problem the QAS, perhaps via a chaplain, could meet with the neighbours to help draw those necessary professional boundaries.

Categories: Researchers

Policing the public health response via Facebook

27 July, 2020 - 12:39

We’ve probably seen the videos of people being belligerent with Victoria police and shop staff – and if not, here are some:

A correspondent has also written to me saying

I read your with interest your blog regarding the current situation in Victoria and specifically police powers and the Public Health and Well Being Act 2008.

I must say, after reading the Act, I too arrived at the same conclusions as you did though I am not a barrister.

Police have no powers under the Act to enforce anything.

In fact, a person has no legal obligation to provide name and address to Police if requested – only an “authorised officer” has the power to request such and police are NOT authorised officers for purposes of the Act.

Amazingly, I have asked they produce their identity card which authorised officers are obliged to do, and they simply state that being in uniform is enough!!!

Finally, threats of arrest by police would constitute assault (I recall case law to the effect), and arresting any person for questioning is unlawful as you rightly pointed out.

I was arrested for refusing to provide my details and released after questioned and provided my details (conversation was recorded).

Appreciate your blog!!

Lest I be misquoted I’ll try again. In my post Policing the public health response – Victoria (July 10, 2020) I said that the police could not use force to take a person who was subject to the general lockdown that what was then in force, to return a person to their apartment. That is not the same as saying that the police could not ‘enforce anything’. It is an offence to fail to comply with a public health order. In that earlier post I said:

It is an offence to fail to comply with a direction made under s 190 or 200 (see ss 193 and 203). It is the police that usually enforce the criminal law but in this case, the Secretary may issue an infringement notice (s 209).

Just because the ‘Secretary may issue an infringement notice’ it does not mean that the Secretary must do so or that police have no authority. To again quote the Crimes Act 1958 (Vic) s458:

Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a police officer to be so taken, any person—

(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) to ensure the attendance of the offender before a court of competent jurisdiction;

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv) for the safety or welfare of members of the public or of the offender;

My point in my earlier post is that if police arrest a person breaking a lockdown with an intention of returning them to ‘the place where the person is required to be under the order’ that is not justified by this section. But that doesn’t mean they cannot arrest for the purposes set out in that section. And the primary purpose of arrest has to be to put the person before a court or otherwise commence proceedings.

It follows that if a person who is required to wear a mask is not doing so then they are committing an offence (Public Health and Well being Act 2008 (Vic) s 203). If they refuse to wear a mask police can arrest them for the purposes set out in the Crimes Act 1958 (Vic) s 458(iii) and (iv). If they refuse to give their identification details then an arrest could also be justified under s 458(i), because if the police don’t know the person’s name and address they cannot issue a summons or infringement notice and cannot, should it be necessary (eg if they ignore the summons or infringement notice) ‘ensure the attendance of the offender before a court of competent jurisdiction’.

Further the Crimes Act 1958 (Vic) s 456AA says:

(1)        A police officer … may request a person to state his or her name and address if the police officer … believes on reasonable grounds that the person—

(a)        has committed or is about to commit an offence, whether indictable or summary…

(2)        A police officer …who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.

(3)        A person who, in response to a request made by a police officer or a protective services officer in accordance with this section—

(a)        refuses or fails to comply with the request; or

(b)       states a name that is false in a material particular; or

(c)        states an address other than the full and correct address of his or her ordinary place of residence or business—

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

(4)        A person who is requested by a police officer or a protective services officer under subsection (1) to state his or her name and address may request the officer to state, orally or in writing, his or her name, rank and place of duty.

(5)        A police officer or a protective services officer who, in response to a request under subsection (4)—

(a)        refuses or fails to comply with the request; or

(b)       states a name or rank that is false in a material particular; or

(c)        states as his or her place of duty an address other than the name of the police station which is the police officer’s or the protective services officer’s ordinary place of duty; or

(d)       refuses to comply with the request in writing if requested to do so—

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

It’s not clear to me whether the first two videos that I’ve linked to are the same incident or different incidents. In one of the videos the police officer says that the requirement to provide a name and address is under ‘Commonwealth law’ and that is not correct. The obligation is under the Victorian Crimes Act, but just because the officer got the source wrong does not deny that the authority exists.  Lawyers spend a lot of time chasing down provisions and laws, police on the street are not required to give people legal advice. The assertion that she was required to provide her name and address was correct.

The police in the news.com.au video are on the ball. They hand over their details when requested (s 456AA(4) and (5), they tell the woman that they think she has committed an offence for not wearing a mask (s 456AA(2)) and they require her to provide her name and address. Her failure to do so appears to be an offence (ie an offence separate to the offence of not wearing the mask) and that again triggers their power to arrest (s 458).  Her assertion that she does not consent is irrelevant, the whole point of arrest is that it is depriving a person of their liberty. No-one ‘consents’ to being arrested.

A critical question is ‘is it an offence to not wear a mask in Victoria?’

The Stay at Home Directions (Restricted Areas) (No 4) has been issued by Dr Finn Romanes, Deputy Public Health Commander pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).

Section 199 says that the Chief Health Officer may authorise various persons to exercise emergency powers. I will assume that Dr Romanes is duty authorised. The powers in s 200(1)(b) and (d) are powers to:

(b)       restrict the movement of any person or group of persons within the emergency area;

And

(d)       give any other direction that the authorised officer considers is reasonably necessary to protect public health.

This particular order applies to ‘everyone who ordinarily resides in the Restricted Area’ (as defined by the Area Directions (No 4) (see The Stay at Home Directions (Restricted Areas) (No 4), cl 13). Clause 5(6) says that a person may not leave their premises within the restricted area unless they

(a)        wear a face covering at all times; and

(b)       if subclause (7) (other than subclause (7)(a) or (c)) applies, carry a face covering at all other times.

Subclause (7) does provide exemptions but none of them appear to be relevant in any of the scenarios shown.

I cannot see that there is an obligation to wear a mask if you enter the restricted area from outside the restricted area.

The critical question becomes, at least for the first two videos, whether the woman ‘ordinarily resides’ in the restricted areas. I don’t know where the video was shot, but one can immediately see the problem for police. If we assume that the video was shot in one of the restricted areas, then prima facie she lives in that area but if she doesn’t produce ID they cannot know that.

An arrest, or a demand for ID is not unlawful because it turns out the person is not guilty of any offence. Police only need to have reasonable grounds to suspect the person is guilty of an offence to arrest (Crimes Act 1958 (Vic) s 461) or demand identification (s 456AA)..

It may be that the woman in videos (1) and (2) has not committed an offence. She may not ordinarily reside in a restricted area; she may have an exemption under cl 5(7); Dr Romanes may not have been duly authorised to issue the Stay at Home Directions (Restricted Areas) (No 4). Police cannot resolve all of that at the time. First they cannot address the issue of her address if she doesn’t tell them what it is. Second just because a person has an defence that does not make the arrest illegal; police do not determine guilt or innocence, courts do. Provided police have ‘reasonable grounds’ to believe an offence has been committed that is sufficient. A person may be able to challenge Dr Romanes’ appointment but I don’t think anyone would question that a police officer would have ‘reasonable grounds’ to believe he is duly authorised by the very terms of the order made.  As for a legitimate reason under cl 5(7) again if that is not offered to police they cannot form a view as to whether it applies.

As with most circumstances if one thinks police are acting ultra vires, it is usually better to cooperate and deal with it later rather than assert that ‘I’m right; you’re wrong’. Getting arrested and spending two years in court is a high price to pay to climb the moral high ground.

As for asserting that she’ll sue each officer personally for $60 000 that is rubbish. When you sue for ‘unliquidated damages’ (ie damages that cannot be quantified) you make a claim and ultimately a court assesses your actual losses. You can claim $60 000 but damages may be assessed at $6. Further if she alleges a tort (eg assault or false imprisonment) by a police officer, it is the State of Victoria that is liable (Victoria Police Act 2013 (Vic) s 74). She cannot simply chose to avoid that section. If she tries to sue the police officers personally it will still be the state of Victoria that is the defendant and that is there, no doubt, in part to stop people threating to take action against individual police in order to stop them performing their duties.

Conclusion 1

As always, we don’t know all the facts from a short video but from what we can see I would suggest:

  1. If she was in a restricted area and not wearing a mask that would give police reasonable grounds to suspect she was committing an offence contrary to the Public Health and Well being Act 2008 (Vic) s 203.
  2. That belief would justify making a demand that she provide details of her name and address. Failure to comply with that demand is also an offence.
  3. There being reasonable grounds to suspect the commission of two offences, police could choose to exercise their powers of arrest to stop further breaches, to protect public safety and to take steps to put her before a court.
  4. It is wrong to say that the ‘Police have no powers under the Act to enforce anything.’
Video 3

Video 3 is a different story. In that video the person is in Bunnings and an Australia Post outlet. These are private premises (even though Australia Post is a Commonwealth agency). They can set the terms and conditions of entry to their store. They don’t need authority to question the person or to ask them to leave. Trying entering Bunnings or Australia Post naked and test whether they have to let you in.

That is not unlawful discrimination on the basis of gender as alleged.  It may be unlawful discrimination if the person lived in a restricted area and was not required to wear a mask because (cl 5(7)(c)):

the person has a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable…

Examples: persons who have obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness, or who have experienced trauma.

But the shopkeeper/employee would have to have some notice of that before it could be said they were discriminating on the grounds of disability by refusing to serve the person.

Conclusion

There is no ‘right’ to insist on not wearing a mask any more than there is a right to insist on the right to not wear a helmet when riding a motorcycle or a right to walk the street naked. Provided the Deputy Chief Health officer really holds the requisite belief that the actions are ‘reasonably necessary to protect public health’ then the order can be made and it’s a criminal offence to fail to comply.

If someone wants to challenge the ‘reasonableness’ of those orders getting arrested may be a good start. If a person is arrested and charged, they would have standing to raise those issues and take the matter to the High Court.  If you want to get arrested, fine – get arrested but don’t try to argue the police out of arresting you.  That just makes everyone’s life difficult for no good purpose.

Posting videos on facebook of half-baked legal understanding just demonstrates that the person is a [insert what you think is an appropriate descriptive statement here].

See also:

Categories: Researchers

Fire Rescue Victoria and the obligation to proceed with ‘all practicable speed’

13 July, 2020 - 10:44

Today’s correspondent asks for my

…  opinion on the following:

Prior to the Metropolitan Fire Brigade (MFB) ceasing to exist on July 1, the Metropolitan Fire Brigades Act 1958 – section 32B stated that “On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.”

Historically, it is my understanding that MFB used this particular section of their Act, particularly the phrase “practical speed”, as a justification for proceeding code 1 (emergency response) to the vast majority of calls. The only exception was less-common calls that were deemed to be of a low priority, such as an animal rescue.

The creation of Fire Rescue Victoria has seen the joining of MFB career firefighters with Country Fire Authority (CFA) career firefighters. There has been significant discussion about response codes to calls between the two merged groups. CFA firefighters have previously operated under a system where a code 3 (normal road conditions) response was quite common to calls considered to pose a low immediate threat to life and/or property, such fires not spreading, powerlines sparking and minor car accidents.

The phrase quoted from Metropolitan Fire Brigades Act 1958 – section 32B now exists in the Fire Rescue Victoria Act 1958. Does that section of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Of course, one must consider the Road Safety Rules 2017 – regulation 306, stating that the exemption to the Rules for the driver of an emergency vehicle only applies if “it is reasonable that the provision should not apply”.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa?

To set it out in full the Fire Rescue Victoria Act 1958 (Vic) s 32B(2) says:

On an alarm of fire being received by a unit, those members of the unit specified by Fire Rescue Victoria must, with the appliances and equipment specified by Fire Rescue Victoria, proceed with all practical speed to the scene of the alarm of fire.

And, as my correspondent has noted, an alarm of fire is ‘any call for assistance at a fire, accident, explosion or other emergency’ (s 32A). Section 32B is similar to the Fire and Rescue NSW Act 1989 (NSW) s 11 which says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

There are differences: The NSW Act says that the obligation exists ‘despite anything to the contrary in any Act’ and that the NSW Brigades must ‘proceed with all speed’, not just all ‘practicable speed’, but despite their differences I suggest they are sufficiently similar that lessons from one can be applied to the other. I have discussed the NSW section 11 in an earlier post: FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015). In that earlier post (referred to above) I referred to the decision in Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426. I said:

The court held that the section [ie s 28 of the Fire Brigades Act 1909 (NSW) equivalent to the modern s 11 and s 32B of the Victorian Act] gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

My conclusion was:

Section 11 of the Fire Brigades Act 1989 (NSW) [as it then was] is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

The Victorian Act is even clearer given that it says all ‘practicable’ speed and does not purport to apply ‘despite anything to the contrary in any Act’. What follows is that one has to consider many factors to decide what is ‘practicable’ including the risk to other road users and the benefit to be obtained. I suggest that a clause like s 11 (in NSW) or 32B (in Victoria) is telling the Chief Officer that responding to a fire alarm is the brigades first priority, so don’t finish lunch or do other tasks that were received first because the ‘fire can wait its turn’. It does not however give a ‘blank cheque’ to travel at whatever speed one get the appliance up to nor does it mean that the service cannot determine policies about what is practicable given the nature of the alarm.

To turn to the questions asked:

Does that section [ie s 32B] of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Yes, my view is that it does justify a code 1 response, but it does not require it. It is up to Fire Rescue Victoria to determine its policy on responding to fires and to consider what is ‘practicable’ in the myriad of circumstances that the now expanded service will face.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa? 

I note that the Road Rules 2017 (Vic) still define an ‘emergency vehicle’ by reference to the MFB and CFA. I’m sure, without checking, that the ‘savings and transitional’ provisions that brought about the changes to Victoria’s firefighting arrangements will provide that any reference to the MFB is to be read as a reference to Fire Rescue Victoria and I will assume therefore that Fire Rescue Victoria appliances are an emergency vehicle for the purposes of the Road Rules.

For a discussion on determining what is reasonable see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016).

Reasonable is one of the great words of English/Australian law that leaves the response to be determined ‘in all the circumstances’ and with the consequence that you can only know whether your conduct was ‘reasonable’ after the event. Certainly, it would not, in my view, be ‘practicable’ to respond without regard to the Road Rules (and that was my conclusion on the NSW section too, even though it says it applies ‘despite anything to the contrary in any Act’). It is practicable for Fire Rescue Victoria to drive contrary to the normal road rules in circumstances permitted by r 306 as it applies in Victoria, in other circumstances their practical speed must be limited by the need to comply with road rules including stopping at traffic lights and complying with the speed limit.

When developing their response policy, Fire Rescue Victoria like the former MFB and CFA will need to consider their circumstances. Perhaps the fact that the MFB operated only within Melbourne meant that priority 1 responses were more ‘routine’ than in country Victoria. Now that Fire Rescue Victoria operates in both realms one might think that simply adopting the ‘norms’ of either organisation will not be fit for purpose.

The new organisation can, and I would be bold enough to say should, reflect on its all of Victoria mandate and it may determine that a priority 1 response is not ‘reasonable’ in all cases and that the benefit of any faster response time has to be balanced against the risk to firefighters and other road users, and sometimes it’s not ‘reasonable’ to expose those firefighters and other road users to a great risk for a marginal benefit. If it is not ‘reasonable’ (as the term is used in r 306 of the Road Rules), then it’s not ‘practicable’ to proceed other than in accordance with the Rod Rules.

Conclusion

It would be my view that s 32B(2) of the Fire Rescue Victoria Act 1958 (Vic) would justify, but would not require, a code 1 response to every ‘alarm of fire’ even where the event was perceived to be of low risk and where it can be shown that the policy response is ‘reasonable’ taking into account the various benefits and costs (or risks) associated with response driving.

But the obligation remains in both metropolitan and country Victoria. On receipt of an alarm of fire, responding too that alarm takes priority over other tasks.

Categories: Researchers

Lifeguards making a citizen’s arrest – NSW

12 July, 2020 - 12:16

Today’s question is about ‘citizen’s arrest’ in NSW. Perhaps not an ‘emergency law’ question save that the stimulus for the question comes from the TV show ‘Bondi Rescue’ so the people making the arrest are the lifeguards ie emergency personnel. The question is:

I watched the following video: https://www.youtube.com/watch?v=DZLH3vK8PwM

It’s a Bondi beach and they actually grab supposed thieves. Is this allowed? At 13:58 you can see one example. The one with the black shorts is a probable thief (they have seen him taking an unattended bag), the other one is a lifeguard.

I haven’t watched the whole video and I’m not going to comment on the particular incidents, but the law is clear.

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) s 100 says:

(1) A person (other than a police officer) may, without a warrant, arrest a person if–

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

(The power of police to make an arrest is set out in s 99 and has more extensive circumstances that we don’t need to consider).

Stealing (or Larceny) is an offence punishable ‘under any Act’, in particular the Crimes Act 1900 (NSW) s 117.

Sub-section 2 may appear to be problematic and is a carry-over from old legislation. It says the person making the arrest must take the person before an ‘authorised officer’. An ‘authorised officer’ is (s 3):

(a) a Magistrate or a Children’s Magistrate, or

(b) a registrar of the Local Court, or

(c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.

No-one who makes a citizen’s arrest actually takes the offender to court, they hand them over to police. Police can then ‘take over’ the arrest, that is effectively ‘end’ the citizen’s arrest and then exercise their powers of arrest.  Further the case law dealing with the old Crimes Act 1900 (NSW) s 352 (that was in similar terms) says that delivering the person to police is sufficient compliance.

Brown v GJ Coles trading as Coles New World Supermarket [1985] FCA 114 was a decision of the Full Court of the Federal Court of Australia hearing an appeal from a judge of the Federal Court. The matter was in the Federal Court because the events occurred in the Australian Capital Territory before the passage of the Australian Capital Territory (Self-Government) Act 1988 (Cth). At that time NSW law applied in the ACT so the court was interpreting s 352 of the Crimes Act 1900 (NSW) (now repealed) that said that a citizen, when making an arrest, was required to take the person ‘before a Justice to be dealt with according to law’.  In this case the store loss prevention officer had taken the alleged offender to the office and called police who after making inquiries continued the arrest. Davis J said:

The principal burden of Dr O’Connor’s submissions [Dr O’Connor was the lawyer for the defendant] was that a citizen who arrests another under the powers conferred by s.352 must take the arrested person immediately before the appropriate authority and is not entitled to delay such taking while consulting with a more senior person or calling in aid an officer of the police. Yet that view has been distinctly rejected.

In Leachinsky v Christie [1947] UKHL 2; (1946) 1 KB 124 Uthwatt LJ said, at pp.148-9 :

“. . . Arrest is a step in criminal procedure directed to leading to an adjudication in due course of law on the conduct in the matter in hand of the person arrested. For it is the duty of a constable arresting without warrant with all due speed to bring the individual arrested before a court of justice having jurisdiction in the matter, and it is the duty of the private citizen either to take that course or to hand the supposed offender over to a constable with a view to that course being taken. Neither can justify private detention. There is no lawful arrest therefore unless the interference with the individual’s liberty is made as a preliminary step to an investigation by a court of justice. . . “

In John Lewis & Co Ltd v Tims (1952) AC 676, where the facts were similar to those with which we are concerned, Lord Porter said, at pp.687-8:

“Where the right of arrest is given to a private person, it is obviously desirable that the arrested man should be entrusted to some official care as soon as possible, and statements to that effect are to be found in, I think, all the textbooks, old or new. . . . “

At pp.691-2, his Lordship said:

“The question throughout should be: Has the arrester brought the arrested person to a place where his alleged offence can be dealt with as speedily as is reasonably possible? But all the circumstances in the case must be taken into consideration in deciding whether this requirement is complied with. A direct route and a rapid progress are no doubt matters for consideration, but they are not the only matters.

Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence. But there are advantages in refusing to give private detectives a free hand and leaving the determination of whether to prosecute or not to a superior official. …

Sheppard J (dissenting, on other grounds) said

It appeared to me that counsel’s argument went so far as to suggest that s. 352 conferred only one power, namely a power to apprehend and to take the person apprehended before a justice. If the person making the arrest did not take the arrested person before a justice, the power had not been exercised according to law with the consequence that the arrest was unlawful. I would reject that submission. A similar submission was rejected by Asprey J.A. in Jobling’s case; see (1969) 1 N.S.W.R. at p. 135. I would respectfully agree with what his Honour there said.

Everett J said:

As I understood the argument of counsel for the appellant, it was submitted that the provisions of sub-section 352(1) were in effect one and indivisible, to the extent that the two physical acts to which the provision refers – namely, the apprehension and the taking of the arrested person before a Justice to be dealt with according to law – are not severable but are strictly joint. That is to say, the argument was that unless the second of the two physical acts is in fact done by the person who makes the arrest, the whole arresting process is without lawful justification and therefore actionable.

Such an interpretation of sub-section 352(1) is, in my opinion, without authority, illogical and overlooks the purpose of the arresting process.

I would reject the argument for the reasons expressed by Mr Justice Davies and against the background of the authorities to which he has referred. In my opinion, the actions of the store detective [in holding the offender until the arrival of police] were lawful.

In other words, notwithstanding that s 352 of the Crimes Act said, and s 100 of LEPRA now says that a citizen is to ‘take the person, and any property found on the person, before an authorised officer’, holding the person until police arrive is consistent with that obligation, and police can then form the view to take over the arrest and continue the prosecution or release the person (LEPRA s 105).

As for the use of force, LEPRA s 231 says (emphasis added):

A police officer or other person who exercises a power to arrest another person may use such  force  as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

I have not (and will not) go through the case law on the mental state required for a lawful arrest suffice to say that being wrong does not make the arrest unlawful. If the arrested person is acquitted or after further investigation the arrest is discontinued or charges are withdrawn, that does not make the original arrest unlawful. What is critical is whether the decision to arrest was reasonable the circumstances, that is whether the arresting citizen, or police officer, ‘reasonably believed’ that the circumstances in s 100(1) existed (see the various cases cited in Brown v GJ Coles and in particular, Leachinsky v Christie (1946) 1 KB 124 and John Lewis & Co Ltd v Times (1952) AC 676).

Conclusion

If a life saver, or life guard, or any person sees someone take a bag in circumstances where they reasonably believe the person has committed an offence they may, with reasonable force, detain the person and hold them until they can be delivered to police.

This post has been made with reference to NSW law but a citizen’s arrest is permitted in every jurisdiction. The law allows a citizen to ‘actually grab supposed thieves’.

For another posts on  lifeguards and lifesavers acting as law enforcement, see:

 

Categories: Researchers

Policing the public health response – Victoria

10 July, 2020 - 12:40

Today’s correspondent asks about

… the highly publicised lockdown of nine public housing towers in Melbourne. Amongst my friends and peers there seems to be widespread acceptance that the lockdown of these towers and their inhabitants is necessary, but there also seems to be considerable outrage over the use of the Victorian Police to enforce and monitor the lockdown.

My questions for you are, disregarding all logistical or manpower considerations:

  • Does this lockdown need to be carried out by police?
  • What are the legal implications of health professionals enforcing this lockdown?
  • Would a health professional be able to issue fines for non-compliance or stop, with reasonable force, an individual that chooses not to abide by the lockdown orders?

I’d be grateful if you could shed some light onto the relevant legislation.

The lockdown is authorised by the Public Health and Wellbeing Act 2008 (Vic). That Act, in Part 10, gives the Chief Health Officer extensive powers to take action ‘to investigate, eliminate or reduce public health risks’. These powers include the powers in s 200 to

(a) detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

(b) restrict the movement of any person or group of persons within the emergency area;

(c) prevent any person or group of persons from entering the emergency area;

(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.

The Stay at Home Directions (Restricted Areas) issued on 8 July 2020 is made pursuant to s 200. (You can see all the Directions at https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19 under the heading ‘Directions issued by Victoria’s Chief Health Officer’.

To return to the question I was asked, the critical question is ‘who is an authorised officer?’

The Public Health and Wellbeing Act 2008 (Vic) s 30 says

(1) The Secretary by instrument may appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act.

(2) The Secretary must not appoint a person to be an authorised officer under this section unless the Secretary is satisfied that the person is suitably qualified or trained to be an authorised officer for the purposes of this Act.

(3) An appointment of a person to be an authorised officer may—

(a) specify the functions, duties or powers under this Act or the regulations to which it relates; and

(b) be made subject to any conditions that the Secretary considers to be appropriate….

(6) The Secretary may give a direction to an authorised officer appointed by the Secretary in relation to the performance of the authorised officer’s functions or duties or the exercise of the authorised officer’s powers under this Act or the regulations.

(7) A direction given under subsection (6) may—

(a) be of a general nature; or

(b) specify that the direction relates to a specific matter or specified class of matter.

It’s not all or nothing. It’s not that an authorised officer can exercise all the powers under the Act, only those that he or she is authorised to exercise and on the terms set out in any direction. But anyone employed under Part 3 of the Public Administration Act 2004 (Vic) can be appointed an authorised officer.  Council officers can also be appointed (s 189(b)).

Part 3 of the Public Administration Act 2004 (Vic) deals with employment in the ‘public service’ that is Departments and Administrative offices (ss 10 and 11). What are the departments and administrative offices that make up the Victorian Public Service? That is explained on the Victorian Public Sector Commission website at https://vpsc.vic.gov.au/about-public-sector/employer-public-sector-bodies/. It includes Ambulance Victoria and Victorian health services.

The use of force – Public Health Orders

A public health order is an order made under s 117 (see s 1, definition of ‘public health order’). Section 123(4) says:

A police officer may use reasonable force to detain the person subject to … a public health order and take that person to—

…(b) the place where the person is required to be under the order.

That would be fine save that the orders relating to the covid lockdown say they have been made under s 200 ‘Emergency Powers’, not s 117 ‘Public Health orders’.

The use of force – Public Health Risk and Emergency Powers

Section 200 is triggered by the declaration of a state of Emergency (see s 198). That declaration has been made.  That declaration allows the Chief Health Officer to authorise an authorised officer to exercise the powers listed in ss 190 (Public Health Risk Powers) and 200 (Emergency Powers) (see s 199(2)).  An authorised officer may be assisted by police (ss 192 and 202).  Apart from s 123(4) there is no provision allowing the use of force to ensure compliance with directions made under s 190 or s 202. Section 123 is not relevant as the orders are not ‘Public Health Orders’ as defined by ss 1 and 117.

It is an offence to fail to comply with a direction made under s 190 or 200 (see ss 193 and 203). It is the police that usually enforce the criminal law but in this case, the Secretary may issue an infringement notice (s 209).

To be honest I cannot see where there is a power to use force to ensure compliance. The Crimes Act 1958 (Vic) s 458 says

Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a police officer to be so taken, any person—

(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) to ensure the attendance of the offender before a court of competent jurisdiction;

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv) for the safety or welfare of members of the public or of the offender;

Detaining someone who is breaching an order may well be relevant to subparagraphs (a)(ii), (iii) and (iv) but the overarching purpose of arrest under this section is to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’ not to return them to where they are meant to be or ensure compliance with a direction under the Public Health and Wellbeing Act 2008 (Vic).  Arresting them for the purposes of returning them to the area of detention would not be justified by the Crimes Act 1958 (Vic) s 458; see also Bales v Parmeter (1935) SR(NSW) 182; Williams v R (1986)161 CLR 278.

It may be that the use of the word ‘detain’ and ‘detention’ in s 200 implies a power to use force, but the Act does not say that.  Equally one might find a right to use force in some ancient common law on the power of a constable to preserve the peace, a power that is retained by Victorian police by virtue of the Victoria Police Act 2013 (Vic) s 51which says (unhelpfully) says:

A police officer who has taken and subscribed the oath or made and subscribed the affirmation under section 50 has—

(a) the duties and powers of a constable at common law; and

(b) any duties and powers imposed or conferred on a police officer by or under this or any other Act or by or under any subordinate instrument.

A section that requires a person to go back through history to identify what are the duties and powers of a constable at common law is unhelpful for both members of Victoria police and the citizens of Victoria. A pamphlet on the Office of Constable (2018) produced by the Police Federation of England and Wales says:

In England the office of constable was in existence during Henry I’s reign. The principal duty of the constable, which was a military term at this stage, was to command the army.

The term constable first appeared after the Norman conquest, and towards the end of the 12th century acquired the local significance it has held ever since.

The Statute of Westminster 1285 enshrined the principles of two high constables appointed in every hundred with responsibility for suppressing riots and violent crimes and for the arming of the militia to enable them to do so.

Henry I reigned from 1100-1135 so if one would have to trace over 900 years of case law in both England and Australia to identify the ‘duties and powers of a constable at common law’. It follows that no-one really knows what those duties and powers are and Victoria Police Act 2013 (Vic) doesn’t help.

Discussion

This has been a really interesting outcome. First, I cannot see any provisions in the Public Health and Wellbeing Act 2008 (Vic) that allow the use force to ensure compliance with the Chief Health Officer’s Directions. The penalty for non-compliance is a fine (ss 193 and 203). A person could walk out of the building and receive an infringement notice. The Act provides for no other enforcement unless the order is made under s 117 and none of the directions that I have seen refer to s 117.

Police could arrest a person who breached the order on the basis that their arrest was necessary to ‘to preserve public order’, ‘prevent the continuation or repetition of the offence or the commission of a further offence’ or it was necessary ‘for the safety or welfare of members of the public or of the offender’ but that arrest would only be lawful if at the time fo the arrest the police officer intended to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’.

If there is a power to use force it is implied by the word ‘detain’ in s 200 or to be found in 1000 years of case law. That is not satisfactory.

What follows in my view, is that if police or anyone used force to detain a person who chose to leave the ‘locked down’ apartment block and returned them to the block, rather than taking them to the police station to charge them and then perhaps release them on bail with conditions that they return, then the person arrested would have a good argument to bring a claim for assault and false imprisonment.

Conclusion

So where does that leave my correspondent’s question? It follows that the lockdown does not have to be enforced by police as they’ve got no specific power. Any member of the public service including health officials or members of Ambulance Victoria could be ‘authorised officers’ and they could give directions to a person to remain in their premises and they could, if authorised, issue an infringement notice.  Even they could arrest someone under s 458 and hand them to police for prosecution.

The use of police, I suspect, deals with the ‘logistical or manpower considerations’ that I have not considered. And Police carry a great moral suasion. People are used to doing what they are told to do by police because, whether the police have the legal power or not, complying is easier than testing both their patience and their legal authority. Getting arrested, charged and appearing before a court is a big price to pay even if 2 years later a court agrees with you that there was no power to use force. And given there’s 900 years of history to troll through, a court could probably find a relevant power if it really wanted to.

This is clearly an unsatisfactory situation and in my view brings out some very poor drafting in the Public Health and Wellbeing Act 2008 (Vic) and lazy drafting in the Victoria Police Act 2013 (Vic).

Categories: Researchers

Can the CFA follow up on an unpublished report?

8 July, 2020 - 17:26

Today’s correspondent says:

Some years ago there was a report into Bullying in CFA done at the request of the State government and completed by the state human rights commission.

Because CFA and the Unions argued that only CFA can investigate CFA the report was suppressed from public publication by a lawful court order.

BUT senior CFA officials and their legal staff viewed the report and the complaints from the 563 CFA volunteers who lodged formal written complaints about bullying harassment intimidation assault and sexual assault in CFA.

While the release of the report is banned I would like to know what is the legal requirement for CFA having been informed of these complaints and being aware of the names and addresses of the people who did complain, to act on those complaints and launch their own internal CFA investigation of the complaints ?

This has not happened

None of the 563 CFA members have been contacted by CFA with regards their complaints (to my knowledge).

No CFA counselling or peer support has been offered to any of these complainants, they have only been told that they cannot even have a copy of their own statement to the investigation because it’s suppressed.

What would be the legal requirements for CFA to deal with this?

The report that my correspondent refers to is discussed in my post Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018).  To correct one issue, the result was not that ‘only the CFA can investigate the CFA’ it was ‘only the CFA or the MFB could request the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to conduct a review of the CFA or MFB’ but at the end of the day it’s correct that VEOHRC could not publish its report.

I would be very surprised if the CFA was informed of the details of the complaints or of the names and addresses of the people who did complain. The decision before the Court of Appeal talked about an online survey. I don’t know the terms on which that was conducted but it may have been anonymous or with a guarantee that identifying information would not be shared with the MFB/CFA.  The privacy principles say that information can only be used for the purposes for which it was obtained. If the information was obtained for the purposes of a review by the VEOHRC it would be a breach of privacy to then share that with the MFB or CFA.  Without further material, I would very much doubt that the CFA has the information suggested.

The CFA one can infer however knows that there are issues and maybe it does have some identifying information. The CFA has both common law and statutory duties to ensure that the CFA is a safe place for workers and volunteers ((though the duty to volunteers is not express in Victoria as it is in those states that have adopted the Model Work Health and Safety Act).   That means if the CFA is aware of a culture of bullying and sexual harassment it has to take reasonable steps to deal with that, but no doubt it claims to do so.

As for approaching individuals that is problematic. Again I’m sure the CFA has a complaints process and provides for an employee/volunteer assistance program. It cannot compel people to use them (just as an employer cannot compel a person to make use of resources to help deal with their PTSD – see Negligence claims relating to PTSD (May 14, 2018)).

Even if someone in the CFA does know of someone who made a complaint or provided information to VEOHRC if they have not complained to the CFA then it would appear to me to be improper to behave as if they have. They may not have lodged a complaint for a reason and you cannot force them to do so.

Conclusion

To give any informed answer to those questions one would need a lot more detail of how the VEOHRC inquiry was conducted, how and what information was obtained and on what terms, how did the CFA and MFB work with VEOHRC during that process etc.  My immediate thought is that I very much doubt the VEOHRC either did or could share information about the complainants with the CFA or MFB and if that’s right there can be no legal obligation to follow up with individuals unless and until they make a complaint or reach out to the CFA or MFB.

Categories: Researchers

Membership of the VFBV and disciplinary proceedings

7 July, 2020 - 18:19

Today’s correspondent is interested in my opinion of the effect of s 100(1) of Country Fire Authority Act 1958 (the CFA Act).  That section says:

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

I’m told that:

The CFA appears to use this section to effectively hamstring VFBV from providing advocacy for volunteers with disciplinary matters. My lay view, is that the section prohibits the VFBV from raising an issue with the authority but should not prohibit them advocating or assisting a volunteer in their defence of any disciplinary matter brought against them. what do you think?

I infer from the question that if someone from the VFBV is seeking to appear for, or as a support person for, someone going through that process the CFA says they cannot as that is not expressly provided for in s 100?  Is that the gist of the issue?

Volunteer Fire Brigades Victoria (VFBV) is not created or established by the CFA Act. According to the VFBV Constitution, available from their website they are an association incorporated under the Associations Incorporation Act 1981 (Vic) (now repealed and replaced by the Associations Incorporation Reform Act 2012 (Vic) but nothing turns on that as the transitional provisions ensure that it retains its incorporated status and the constitution retains its status as the constitution).

To digress for a minute, the CFA Act s 100(2) says ‘A person is not eligible to become an officer or official of Volunteer Fire Brigades Victoria Incorporated unless he or she is a registered volunteer.’  It is unusual for the Parliament to dictate membership qualifications for a non-government legal entity. That the Parliament knows that it is not the author of the VFBV constitution is made clear by s 100(6) which says ‘This section applies despite anything to the contrary in the Associations Incorporation Reform Act 2012 or the rules or constitution of Volunteer Fire Brigades Victoria Incorporated’. It is the case that the Parliament has imposed a qualification requirement on the VFBV executive even though they have not established the organisation.  That is unusual, but not beyond Parliament’s power.

To return to the VFBV Constitution, there is a Statement of Purpose attached to the Constitution. There is no reference to the statement of purpose in the Constitution, that is there is not clause that says words to the effect of ‘The purpose of the Association is set out in Schedule 1’ or the like. Despite that drafting anomaly nothing turns on that for this comment.  The purposes of the VBFV are:

An interesting, and with respect surprising (at least to me) aspect of the Constitution, is that it is the brigades and groups established by the CFA that are members of VFBV, not individual volunteer firefighters (see VFBV Constitution cl 3.1; see also [1] of the Statement of Purpose). This is consistent with provisions that say the Board is made up of 8 members appointed by the Brigades (cl 4.2) not by, say an election where firefighters get to vote. District councils are (cl 8.6), inter alia, to ‘Provide a forum for affiliated brigades to express volunteer concerns/views’ and to ‘Help brigades resolve matters of concern at a local level’. There is no process in the constitution for individual firefighters to raise issues other than via their brigade delegates; and no provision in the constitution for individuals to seek or receive assistance.

The VFBV does not represent firefighters, it represents brigades. How the brigade members give instructions to the VFBV or direct their brigade on what matters to raise is not spelled out in the Constitution and is presumably a matter for brigades to determine according to their local circumstances. But given Brigades are established by, and subject to direction from the CFA there may be cases where a firefighter’s interests are not the same as the ‘brigades’.

I note that the Rural Fire Brigades Association Queensland (RFBAQ), like the VFBV has ‘all registered Rural Fire Brigades in Queensland’ as members (RFBAQ Constitution cl 5). The NSW Rural Fires Association and the Country Fire Service Volunteers Association in South Australia, on the other hand, have individual firefighters as members (RFSA Constitution cl 2; CFSVA Constitution cl 5.1).

Discussion

To return to the question, s 100 of the CFA sets out the purpose of the VFBV in relation to the Act.  To repeat the section, it says (emphasis added):

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

Issues of disciplinary proceedings are dealt with in the Country Fire Authority Regulations 2014 (Vic).  As would be expected there are provisions about how complaints are received, investigated and finalised. Where a firefighter has been charged with a disciplinary offence the matter is to be determined at a hearing. At that hearing (r 18):

… the person charged may be—

(a) self-represented; or

(b) represented by another person.

Where a person is facing any of life’s troubles, including disciplinary hearings in the CFA he or she can and should be able to turn to any person they like for support, advice and counsel. A CFA volunteer may turn to a person who is an officer in the VFBV.

A person may want to write to the CFA or a relevant CFA officer to make submissions to try and stop a charge being presented or to draw to the CFA concerns that they may have of that process. They can and should be able to write that letter themselves, write it with assistance, or ask a trusted person, who may nor may not be an officer of the VFBV to write it for them.

When it comes to a formal hearing they can and should be able to be assisted, or represented by a person who may or may not be an officer of the VFBV.

The critical issue in all of these paragraphs is that the person’s status as an officer of the VFBV is incidental or even irrelevant. As soon as the person says “I’m making this submission as President/Board Member/Other officer of or on behalf of the VFBV” then I think the issue changes.

First s 100(1) says that VFBV may ‘bring to the notice of the Authority all matters affecting … [the] welfare and efficiency’ of ‘members of brigades’. If one is arguing that a member is not guilty of an offence charged, or that the penalty should be reduced due to mitigating factors, then the VFBV is bringing matters to the notice of the authority that affect the welfare and efficiency of that member but addressing the authority on matters of discipline is specifically excluded. Even if the VFBV wants to address disciplinary issues more broadly – eg the way the CFA is managing discipline in this area, or across Victoria, that is also excluded from the VFBV mandate.

On top of that there is nothing in the purposes of the VFBV to say that advocating for individuals is its role. As noted the members of the VFBV are brigades, not the individual firefighters. With no stated purpose and noting that the member subject to disciplinary proceedings is not a member of the VFBV, then it would appear to me that the VFBV acting as an advocate for a firefighter would be ultra vires (ie beyond power).

Conclusion

Reading both the VFBV Constitution and s 100 it appears that the VFBV is there to represent the interests of volunteers at a very broad level. It takes volunteer interests as communicated to it via brigades to the CFA. Section 100 specifically excludes issues of discipline from the VFBV mandate and the constitution and purposes in no way give the VFBV a role in advocating for individual firefighters.

I would agree that taken together, cl 100 of the Act along with the VFBV constitution makes it clear that it is not the role or purpose of the VFBV to provide ‘advocacy for volunteers with disciplinary matters’. To do so would be ultra vires and could put the VFBV in conflict with its members ie the Brigades, including the brigade of which the person is a member.

If a person who happens to be an officer with the VFBV wants to assist a friend and colleague that is another matter, but it would appear to me to be inappropriate to do so with VFBV resources or in the name of the VFBV.

Categories: Researchers

Weaponising paramedic care – practice from the USA to avoid here

2 July, 2020 - 18:33

Today’s correspondent refers me to

… issues of restraint by US police. One high profile case involves Elijah McLean who was restrained by police and sedated by paramedics with ketamine. Regardless of the dosage of ketamine, it raises an issue of paramedics sedating patients on the advice or request of police. In this case the police had been there first and had apparently painted a picture of Mr. McLean as being out of control and unable to be calmed. Following the sedation by the paramedics Mr. McLean has a cardiac event several minutes later and did not recover.

Police requesting sedation by paramedics is a common occurrence in many jurisdictions. This article: https://www.thecut.com/2020/06/elijah-mcclain-injected-with-ketamine.html  suggests it is too common in the US and suggests that paramedics, either knowingly or unknowingly are being used to transfer liability from police in the event of a poor outcome. While this article is commentary, is raises the issue of the decision making of paramedics in deciding to chemically restrain someone and the liability that creates for them. This article suggests that in the US paramedics are sometimes put in precarious ethical positions such as police demanding sedation or indicating it is the alternative to another non-lethal restraint such as a TASER.

While it is not suggested that this same dynamic between police and paramedics occurs in Australia regarding patient sedation, some of the same issues may arise. Could you comment on shared liability for patient outcomes in such situations requiring restraint in police custody. This is especially in light and the level of information paramedics have to make complex sedation decisions often in time-sensitive or dynamic environments.

Whilst I can understand that applying the answer, given the often close working relationship between police and jurisdictional ambulance staff, may be difficult, I think the legal answer is clear.

Paramedics are health professionals.  Every aspect of their job is to provide health care. The Paramedicine Board’s Code of Conduct for Paramedics says (at [2.1])

Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes:

a) assessing the patient or client, taking into account their history, views and an appropriate physical examination where relevant; the history includes relevant psychological, social and cultural aspects

b) formulating and implementing a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners)

c) facilitating coordination and continuity of care

d) recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients, and

e) recognising and respecting the rights of patients or clients to make their own decisions.

All of that remains true whether the person is under arrest or not. A person who is under arrest can still consent, or refuse consent to medical treatment. Providing treatment without the patient’s consent is a battery, even if police ask the paramedics to provide the treatment.  (Noting that the situation may be different for prisoners under sentence see for example Crimes (Administration of Sentences) Act 1999 (NSW) s 73).

If the person is unable to consent that is they are unconscious, or so mentally ill or so intoxicated that they cannot understand the advice they are given and make a decision, then treatment that is clinically indicated in their best interests can be given (The doctrine of necessity – Explained (January 31, 2017)).  That doctrine does not justify treatment that is in the best interests of the arresting police or treatment that is not clinically indicated by the patient’s medical needs.

A paramedic administering any treatment without first assessing the patient and making his or her own assessment of the patient’s medical condition and the treatment required for that condition would be abrogating his or her professional responsibility and failing to act as a health professional.

Police don’t get to request or direct the type of treatment that paramedics give. They can request paramedic assistance if they think a person in custody needs health care. They don’t get to say what that health care will be so ‘Police requesting sedation by paramedics’ should be ignored. If the paramedic does not think sedation is clinically indicated, they should not administer it. If police demand ‘sedation or indicat[e] it is the alternative to another non-lethal restraint such as a TASER’ and a paramedic does not think sedation is clinically indicated he or she should say so and leave it to the police to decide if they believe they have the right to use alternative force. Weaponizing medical care, in effect giving police a weapon that they do not themselves have, should not be the role of paramedics.

I cannot see there is any shared responsibility or liability. Each is liable for the decisions they make. If police use force, whether a baton, capsicum spray, a TASER or a firearm they have to account for that decision and are (or we hope they are) accountable to law for that decision. They are entitled to use ‘reasonable’ force in arrest and ‘reasonable force’ if they believe their lives or the lives of others are in danger.

Paramedics are health professionals. They are expected to provide health care. That may involve advocating for patients (including those under arrest) eg by telling police to get off them and stop choking them; if they believe the patient needs transport to hospital they should say so, if they don’t think a patient’s condition warrants a particular treatment they should not give it. If they give treatment that is not indicated by the patient’s clinical position and consent (where the patient is competent to consent) then they can be liable for assault and/or professional misconduct. If they are of the view that the treatment (in this case sedation) is clinically indicated then they should give it and transport the patient to hospital. If they are aware that the patient/prisoner has been subject to violence that should affect their decision making where it is clinically relevant.

Conclusion

Paramedics are health clinicians. Every decision they make with respect to the treatment of a patient should be guided by that role and the ethics that inform health professional practice. They are not there to provide an extra weapon on the police arsenal. A police request to sedate a prisoner is an irrelevant consideration in a paramedic’s determination of treatment that should be administered.

Categories: Researchers

Using the ADF to maintain quarantine

2 July, 2020 - 17:42

Today’s correspondent asks:

Did you do a post by chance I might have missed on using ADF as guards in quarantine hotels and their powers? With the angst among public posters and commenters about how they should have been used to guard quarantine hotels as in NSW, it would be helpful to have the insight.

No I haven’t posted on this; but I can.

The Australian Defence Force can provide assistance to the Civil Authorities or Assistance to the Civil Community (DACC) (see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)).

Defence Aid to the Civil Authorities is where the ADF deploys onto the Australian streets armed or at least with the expectation that they may use force. This is governed by the Defence Act 1903 (Cth) and the Australian Constitution.

The Constitution provides that the Commonwealth may make laws with respect to “the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth” (s 51(vi)). Further “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” (s 119).

The ADF may be used to protect Commonwealth interests and, when requested, to assist the States to quell ‘domestic violence’ (Defence Act 1903 (Cth) Part IIIAAA). Section 51B says that the ADF may be used to protect a State against domestic violence if that violence is occurring or likely to occur and the is unlikely to protect itself.

To ‘call out the troops’ various steps are required.  Section 30 of the Defence Act provides a simplified guide to the process. It says:

The Defence Force can be called out under a call out order made under this Part. A call out order is made by the Governor-General if the Prime Minister, the Minister and the Attorney-General (who are called the authorising Ministers) are satisfied of various matters.

There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders. …

Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self-governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor-General makes a Commonwealth interests order.

A State or self-governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.

Members of the Defence Force can exercise certain powers if the Defence Force is called out under a call out order. There are 3 categories of powers:

  • powers that generally can be exercised only if authorised by an authorising Minister; and
  • powers that can be exercised in an area that has been declared by the authorising Ministers; and
  • powers for protecting infrastructure that has been declared by the authorising Ministers…

We saw the ADF ‘called up’ during the 2019-2020 bushfires crisis. We can see what a call up (as opposed to a ‘call out’ order looks like – see Calling out the troops (January 5, 2020). To the best of my knowledge there has been no formal order such as the one we saw in January.  Further, the use of the ADF in hotel quarantine is not protecting the states from domestic violence; it is therefore not an example of a state protection order. Nor is there ‘domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia’ (s 33) so this is not a Commonwealth interests orders. In short the ADF has not been called out under Part IIIA and is not providing Defence Aid to the Civil Authorities.

This must, therefore, be an example of Defence Aid to the Civil Community (DACC).  DACC is not provided for in the Defence Act, rather it is governed by the DACC Manual. I would infer that the current use of the ADF is either DACC category 4 or 6 that is:

Category 4—significant non-emergency assistance provided to other Government departments or authorities, to Local, State or Territory Government or other authorities or organisations, commercial enterprises, not-for-profit organisations, individuals or bodies in the general community (DACC 4).

Category 6—law enforcement non-emergency assistance to civil authorities in the performance of law enforcement related support. As is the case with all DACC categories, there must be no likelihood that Defence personnel will be required to use force (DACC 6).

Under those categories the members of the ADF have no particular power. They cannot use force nor compel compliance with directives. They are in the same position that the SES or a private security guard would be in if they were asked to help maintain the quarantine. They are a well disciplined, self-sustaining force that are willing to turn their minds to any task they are given. That means they are an effective labour force but as guards at hotels, the most they could do is ask (with some moral authority) people not to leave and report them to police if they do. It’s no offence to disobey the soldier but it may be an offence under relevant public health orders and the Biosecurity Act 2015 (Cth) to leave the hotel or otherwise not comply with the directions that have been given.

They have a power of arrest, just as any citizen does, but it would be ‘brave’ (as Jim Hacker might say in ‘Yes, Minister’ for those old enough to remember) for an ADF member to try to arrest someone who failed to comply with a requirement under a public health direction.

Conclusion

the ADF provide a very effective surge capacity to help maintain quarantine at the various hotels, but they have no particular legal authority or power.

Categories: Researchers

Dysfunction within Victoria SES

2 July, 2020 - 13:18

I have previously reported on the story of the Chapmans and the moves by Victoria SES to cancel their membership and their efforts to resist that move – see Natural Justice and the SES (September 28, 2015). In that post I reported on the outcome of an application to the Victorian Civil and Administrative Tribunal (VCAT) seeking a review of a decision to suspend the membership of the Chapmans.  5 years later and the matter may have been finally resolved with the decision in Chapman v Victoria State Emergency Service Authority (Review and Regulation) [2020] VCAT 722.

This decision was about an application by the Chapmans to recover their costs from the SES but it tells us much about what has happened since September 2015.  We are told that in October 2015 formal disciplinary proceedings were commenced. There were delays in hearing the allegations whilst the Chapmans took the matter to the Supreme Court of Victoria – Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547 (13 September 2017).  That case had not previously come to my attention, so I will digress here to consider what the Supreme Court decided.

Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547

The Supreme Court outlined the story of the Chapmans’ complaints about the leadership of the SES unit and the complaints by others regarding the behaviour of the Chapmans’ along with details of meetings and investigations and escalation of the issue within the SES. An independent consulting firm was asked to report on the matter and the impact it was having on the ability of the SES to provide a safe working environment (‘the Bowe Report’). This report was delivered on 12 December 2014. At [23]-[26] and [29] Emerton J said:

The Bowe Report records agreement among the individuals interviewed that ‘tension and disharmony within the Unit [had] reached unsustainable and unhealthy levels’. The volume and nature of the verbal and written complaints and counter-complaints was said to have impacted on the health and wellbeing of every member of the Unit. According to the Bowe Report, although there were numerous points of disagreement, all of those interviewed agreed that the Unit was divided into two groups, being ‘the Chapmans and their supporters’ and ‘the rest of the Unit’. The ‘Chapman group’ was identified as Ray, Paul and Daniel Chapman and three other individuals, including Mr Brendan Bennett. The other group was said to comprise the remaining approximately 50 members of the Unit. According to the Bowe Report, the Chapmans quite openly expressed their dissatisfaction with the existing Unit leadership team and made it known that they believed Ray Chapman would be a more appropriate Unit controller.

The Bowe Report found that the manner in which the Chapmans, and later their three supporters, chose to raise their concerns about the decisions and overall performance of the Unit leadership had created tension between them and the leadership and between them and other members of the Unit. Their conduct was increasingly perceived as disrespectful and as being motivated by an intention to discredit and drive out the existing leadership team. The Bowe report continued:

… It has become an unsatisfactory and unhealthy environment for both sides. For an organisation that depends on the goodwill of volunteers to turn up and collaborate to carry out the work in a highly professional and safe manner, it is not sustainable for this unhealthy, disrespectful and combative environment to continue.

… As a result, the Bowe Report identified two options: first, the Chapman group changing their approach; secondly, ‘separating’ the Chapman group from the Unit if they were unwilling or unable to make such a change. However, as the disrespect and disconnection had developed over a number of years and become entrenched, the second option was more likely to be ‘the appropriate and necessary way to eliminate the health risk in the short term and over the longer term’. The Bowe Report therefore recommended that VICSES management consider communicating with the Chapmans to outline a number of the findings and the position of the organisation, giving the Chapmans time to consider their options and whether it would be in their own best interests, and in the best interests of others, for the Chapmans to find another organisation in which to pursue their community service goals…

It is evident from the events that followed that VICSES management accepted the recommendation that the Chapmans be asked to step away from the Unit, at least temporarily, but not to use disciplinary action at the outset.

The events that followed were the directions that were the subject of my earlier post and the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402 (see [53]).  As part of those proceedings there was a compulsory conference to try and find agreement between the parties. At [59]-[63] Emerton J said:

What took place at the VCAT compulsory conference is hotly disputed.

Ray Chapman gave evidence that as part of the compulsory conference process, Ms Bahen [SES Director of Human Resources] ordered the Chapmans to sign the draft Deed. According to Mr Chapman, Ms Bahen said that if the Chapmans signed the Deed, they could return to the Unit within a week or so and all would be forgiven and forgotten. Their ranks would be restored and life would just go on as normal. However, if they did not sign the Deed, Ms Bahen would procure charges against them and make the charges public. According to Mr Chapman, Ms Bahen also said that if they refused to sign the Deed, they would be charged with refusing to follow a lawful command.

Mr Chapman’s evidence that Ms Bahen required them to sign the draft Deed under pain of being charged with disciplinary offences, including being charged with refusing to obey a lawful command, was supported by the evidence given by Paul and Daniel Chapman and the evidence of Mr Bennett.

However, in their evidence, Ms Bahen and Ms Main denied that any such threats or demands were made. Their evidence was to the effect that the applicants were told that if the VCAT proceeding did not settle, then the next step would be the making of a formal complaint. This would involve the commencement of the disciplinary process under the Regulations.

The Chapmans declined to settle the VCAT proceeding. They said they were not prepared to sign a document containing the release.

(It should be noted that at [220] Her Honour says ‘I do not accept the Chapmans’ version of what took place at the VCAT compulsory conference on 3 June 2015’).

On 31 July 2015 the Chief Officer advised that complaints had been made about the Chapmans and these would now be dealt with under the Victoria State Emergency Service Regulations 2006 (Vic) (now repealed). Again an independent organisation (ZALT) was appointed to investigate the complaints. The consultant wrote to the Chapmans with details of the complaints. The problem was (at [82] and [84]) that the:

… allegations were … not the same as those summarised in the notices of complaint sent to each of the Chapmans on 31 July 2015. The allegations listed in the ZALT letters were apparently taken more directly from the interviews recorded in the attachments to the Bowe Report. Many of the allegations in the ZALT letter do not correspond with the allegations in the notices of complaint….

On 7 September 2015, the Chapmans collectively wrote a long letter to the Chief Officer in relation to the allegations in the ZALT letter. They pointed out that four different versions of the allegations against them had now been provided and that there was a ‘lack of clarity and consistency’ in regard to the allegations. They further contended that the allegations set out in the ZALT letters lacked sufficient detail to enable them to proffer a meaningful response.

Emerton J continued (at [90] and [93]):

On 9 October 2015, the Chief Officer wrote to Ray Chapman, advising him that in accordance with reg. 12(1)(b), the Chief Officer had decided to charge him in relation to the complaint. The letter stated that, for the purpose of reg. 13(a), the full particulars of the charges were set out in an annexure…

The disputation between the Chapmans and VICSES has continued since the Charges were brought. Most of the disputation has concerned the particularisation of the Charges and the adequacy of discovery…

The Chapmans went to the Supreme Court asking, amongst other things, that ‘the Court … set aside the decisions by the Chief Officer to suspend and charge them pursuant to the Regulations and [issue]… an injunction restraining the Chief Officer from taking any steps or proceedings on the basis of the purported suspension and charges’ ([94]).

In making her decision Emerton J reminded everyone (at [113])

Not every step taken by VICSES to manage the Chapmans involves a decision that is reviewable by the Court on administrative law grounds. The Court has no jurisdiction to review an administrative decision just because it is unfair or unjust; the decision must be unlawful. The relevant statutory framework for the decision-making is vital and must be steadily borne in mind. Otherwise there is a risk of losing sight of the limited scope and purpose of any proceeding for judicial review of administrative action.

It can be noted that the Chapmans complained about the SES not following the rules and procedures to the letter, of variations in the allegations making it impossible to respond etc.  Of the Chapmans, in court, Emerton J said (at [115]):

More worryingly, the Chapmans have deployed a scattergun approach to challenging the actions of VICSES and have made opening and closing submissions that raise a plethora of grounds or allegations that are not included in the Further Amended Originating Motion. The submissions are prolix, they generate more heat than light, and they contain numerous propositions of fact and law that are not sustainable.

The Court tried to come to grips with the complaint and the remedy sought. At [117]-[118] Emerton J said:

The principal relief sought by the Chapmans is that the decision of the Chief Officer to ‘suspend and charge’ them be quashed.

In order for certiorari [the formal name of the order] to issue to quash a decision, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, for it is the legal effect of the decision which is quashed…

The problem was that the decision by the Chief Officer did not affect the Chapman’s legal rights.  At [126] Her Honour said:

… there is a real question as to whether the Chief Officer’s decision to bring the Charges is a decision that affected the Chapmans’ legal rights in the relevant way. It is an essentially procedural decision that forms part of a larger decision-making process, which will culminate in the hearing and determination of the Charges. However, as Nettle JA held in Byrnes v Marles, even if certiorari is not available, that may not be the end of the matter: procedural fairness in the form of an opportunity to be heard may need to be afforded if such a requirement is implied in the statute (in this case, the Regulations) governing the decision-making process.

Her Honour then reviewed the regulatory scheme for disciplining members and the processes that the SES had followed. She concluded that the SES had complied with the regulations up until the time that ZALT wrote to the Champans. At [168] Her Honour said:

…the allegations identified for investigation by the ZALT investigator are not coextensive with the allegations detailed in the notice of complaint. The ZALT investigator proposed to investigate a far greater number of allegations than were detailed in the notice of complaint. I have tried to reconcile the matters listed in the notice of complaint with those listed in the ZALT letter. I have concluded that, in substance, the ZALT letter raises a whole new set of allegations.

This means that the notice of complaint did not clearly indicate what was to be investigated. In that sense, the notice of complaint served on Ray[,Paul and Daniel] Chapman was deficient.

At [171]-[172] Her Honour continued:

Failure to comply with a statutory requirement to give a notice does not necessarily result in the invalidity of an administrative decision or action that is predicated on notice having first been given. It will be rare for a failure to give notice to result in a decision being set aside where the relevant information has been conveyed by other means…

… The notice of complaint is important because of what it signals about how other parts of the disciplinary process are to be carried out. The notice of complaint is procedural; a deficient notice of complaint is not, in and of itself, something that gives rise to invalidity.

Her Honour then traced through the history of the proceedings and the correspondence between the parties. She concluded (at [188]-[189]):

… it cannot be said that the Chapmans were denied the opportunity to be heard in the investigation. The Chapmans stridently declined to take the opportunity to be heard by the investigator. Although the allegations in the notice of complaint did not match the allegations listed for investigation in the ZALT letter, the Chapmans were given time to consider the ZALT allegations and to respond to them. It has not been shown that they lost an opportunity to put forward any information or argument relevant to the limited inquiry that was foreshadowed. No practical injustice has been shown.

In my view, the Chapmans were not denied procedural fairness in the investigation and the investigation itself satisfied the requirements in the Regulations, notwithstanding the deficiency in the notices of complaint.

Her Honour also found (at [199]) ‘that none of the grounds challenging the decision to bring the Charges on the basis of non-compliance with the Regulations is made out’ nor (at [205]) was anything ‘unreasonable in the legal sense in the decision taken to suspend the Chapmans’.

Finally, the Chapman’s challenged the decision to lay disciplinary charges on the basis that the decision was ‘made for an improper purpose’ ([206]).  Without repeating all of the findings or the judge’s reasoning, she did conclude (at [235]) that ‘The allegations of improper purpose are not made out.’

As for the purported suspension, the subject of the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402, Her Honour said (at [259]) ‘I find that the ‘suspension in fact’ was not a disciplinary measure. It did not need to be effected in accordance with the Regulations. I am therefore not persuaded that the ‘suspension in fact’ was unlawful.’

At [269]-[270] Her Honour said:

None of the grounds for review in the Further Amended Originating Motion is made out. Furthermore, there is no basis upon which to make any of the declarations that are sought.

The proceeding will be dismissed.

Further steps

After the application to the Supreme Court was dismissed, the SES could continue with the disciplinary process. To return to the decision of Deputy President Lambrick in VCAT, she said (at [4]):

… on 10 October 2018, the delegate determined that various charges had been substantiated against each applicant. The applicants were appalled and astonished by those findings and declined to make submissions with respect to penalty.

The matter then came to VCAT to seek a review of that decision. Again there were a number of steps where actions were challenged and demands made. Critically at [12] we are told that:

At the directions hearing on 27 June 2019, the second respondent [the Chief Officer Operations of the Victorian State Emergency Service] formally sought leave to amend the charges…

This application was held over and again made when the hearing before VCAT commenced – ‘Unsurprisingly, the applicants opposed the leave application’ ([16]).  Her Honour continued (at [17]-[24]):

After hearing the applicants’ arguments, I did not grant the second respondent leave to amend any of the charges and gave oral reasons for not doing so. I expressed doubt that I had any power under the Regulations to amend the charges. In any event, I considered that the amendments sought by the second respondent would have resulted in the Tribunal dealing with different charges and therefore addressing a substantially different question to that which the first respondent was asked to determine. It is well established that on review this Tribunal must address the same question as the primary decision-maker. The effect of my ruling was that (at least some of) the charges apparently became less tenable/untenable.

… In due course, the parties requested that the matter be listed for a compulsory conference. The compulsory conference took place on 11 September 2019 before another member of the Tribunal.

Following the compulsory conference, on 24 September 2019 the second respondent advised both the applicants and the Tribunal in writing that:

the authority has determined not to oppose the applicants’ review application dated 20 January 2019, i.e. the Authority is not going to seek to prove the charges against the applicants which are the subject of the review application.

The second respondent proposed orders disposing of the matter.

The outcome was that VCAT formally set aside the finding that the charges against the Chapmans had been proved and the decision to cancel their membership of the SES was set aside.

The matter, the subject of this report, was then an application by the Chapman for the payment of their costs and compensation for the events over the last many years. In tribunals like VCAT the general rule is that each party must pay their own costs (see [36]).  This is unlike courts, where the general rule is the loser is ordered to pay at least some of the winner’s costs.

Deputy President Lambrick found that the Act establishing VCAT did not give the Tribunal the power to order costs for events that occurred outside the VCAT hearing.  She did not have the power to make an award for costs incurred in responding to the allegations, during the hearing of the complaint or in the Supreme Court (noting of course that the Chapmans lost in the Supreme Court ).  She said (at [69]) ‘This Tribunal can do nothing in relation to any costs incurred by the applicants before the matter came before this Tribunal.’

Her Honour then had to consider whether she should make an order for costs for proceedings in the Tribunal. She held that she should not.  She said ([78]-[110]):

The applicants did not demonstrate any time whereby the respondent relevantly failed to comply with any order or direction of this Tribunal.

The applicants did not point to any examples of the respondents failing to comply with this Act, the Regulations, the Rules or enabling enactment in the proceeding before this Tribunal for which an award of costs would be appropriate.

[There was no] … attempt by the second respondent to deceive another party or the Tribunal.

Whilst the applicants repeatedly contended that the proceedings were vexatious, there was no evidence before me upon which I could draw this conclusion… The second respondent was successful in its case before the first respondent. It is impossible in these circumstances to find that in defending its position before VCAT it acted vexatiously….

There are a myriad of reasons why this prosecution has taken a long time. I do not however agree that the second respondent prolonged unreasonably or in any way the time taken to complete the proceeding before this Tribunal…

The applicants contend that the charges against them should never have been laid… Once again, much of the emphasis surrounded the conduct of the hearing before the first respondent.

The first respondent found the charges proved.

I agree with the submissions of the second respondent that following my ruling, it did not persist before this Tribunal with charges that had no tenable basis.

The criticism advanced by the applicants would have been more arguable had the respondents determined, after my ruling, to nevertheless contest the application, knowing that the charges were no longer tenable.

… action by the second respondent to enforce a costs order arising from the Supreme Court judicial review proceeding at a time when the parties were engaged in a compulsory conference before this Tribunal does not constitute misconduct or bad faith…

The Tribunal declined to make a costs order but did order Victoria SES to reimburse the Chapmans the fees associated with the VCAT hearing in the sum of $2,824.70.

Discussion

From a legal perspective I think all of this shows two things. First I think it is a credit to the judicial arm of government (including VCAT) that the tribunals exist and dispassionately hear and try to apply the law to all manner of arguments. That the tribunals exist is a valuable release. On the other hand, unlimited appeals and the right to challenge each and every decision of each and every decision maker does lead to the appearance that anyone who is willing to keep throwing money and time at a decision they don’t like will eventually triumph. We usually think of big business with deep pockets winning by attrition but it is not so limited. Whether that’s justice or not depends on where you stand in any given matter.

We are not told what amendments the SES wanted to make or why. All we know is that when that application was refused, they did not proceed with the matter. The Chapmans, not surprisingly, were not happy with that outcome. They (at [26]) ‘made it clear that they would have preferred to have had the opportunity to be vindicated at a hearing of the Tribunal rather than simply have the respondents lead no evidence.’  As it is no-one has been vindicated.

Every step of this process, at least as reported in the Courts and Tribunals, has turned on process and procedure rather than the substance of the allegations. It would appear that, apart from the decision to refuse leave to amend the charges made by Deputy President Lambrick, the Chapmans have had no judicial determination in their favour even if, at the end of the day, one has to conclude that the charges as formulated were defective. We simply don’t know however what behaviour occurred, or did not occur. This is an unsatisfactory outcome to a very long process.

Conclusion

This is a sad and sordid tale for an organisation that depends on volunteers.  I have not repeated the details of the complaints against the Chapmans but they are set out in the Supreme Court judgement at [166]-[168]. If even some were true it must have made attendance at that SES unit very unpleasant.

I said at the start that ‘the matter may have been finally resolved’ but actually one would have no reason to believe that. Given the history of this matter and the ‘depth of ill-will, distrust and disrespect that had developed’ [Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547, [253]) it is hard to see how this, or any decision will go toward rebuilding the unit.

What I don’t understand is why the Chapmans, or the 50 or so other members in the ‘other group’ would choose to remain either in the SES or in a unit that is so dysfunctional.  Why is membership of the SES so important you would spend years and thousands of dollars fighting to stay when others clearly don’t want you; and why if people are behaving as the Chapmans’ were alleged to have done (acknowledging of course that the allegations have not been proved) would anyone else want to stay? Given the story, as told through judicial decisions, it is beyond me how the members of this unit find the will to turn up for training or to turn out to an emergency.

The time and cost it has taken to come to no real resolution – no-one’s complaints, those made by and those made against the Chapman’s have been satisfactorily resolved. This is a shocking story for Victoria SES and the Victorian community.

Categories: Researchers