Subscribe to Michael Eburn: Australian Emergency Law feed Michael Eburn: Australian Emergency Law
Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 15 hours 20 sec ago

Providing compensation for casual passers-by or spontaneous volunteers

1 June, 2014 - 17:24

A correspondent writes:

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gem I uncovered in the Rural Fire Control Manual (legislative instrument required under ACT Bushfires Act 1936 (now repealed) was around ‘casual passers-by’ who assist with putting out a fire being entitled to compensation if injured.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

4.4 EMERGENCY VOLUNTEERS

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

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

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

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

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

… any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire: (i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or (ii) in conjunction with any civil authority; or (c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be a fire fighter (s 5, definition of ‘fire fighter’).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

New laws to protect property from bushfires or to invite people into harm’s way? A tale of two cities.

30 May, 2014 - 16:26

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

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

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

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

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

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

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

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

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

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

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

In the Media release the Minister has announced that the

Key features of the reforms include:

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

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

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

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

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

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

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

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

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

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

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

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

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

* DISCLOSURE

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


Categories: Researchers

NSW SES Commissioner found to have engaged in corrupt conduct

29 May, 2014 - 11:27

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

Disclosure

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

To the issue.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 Lessons

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

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

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

 


Categories: Researchers

First aid by security guards

26 May, 2014 - 21:04

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

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

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

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

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

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

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

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

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

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

Question 1:

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

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

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

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

Question 2:

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

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

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

Question 3:

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

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

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

Question 4

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

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


Categories: Researchers

First aid by security guards

26 May, 2014 - 21:04

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

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

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

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

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

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

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

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

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

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

Question 1:

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

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

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

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

Question 2:

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

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

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

Question 3:

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

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

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

Question 4

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

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


Categories: Researchers

Litigation over the 2003 Canberra fires continues

26 May, 2014 - 19:46

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

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

The newspaper is reporting that:

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

and later

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Litigation over the 2003 Canberra fires continues

26 May, 2014 - 19:46

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

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

The newspaper is reporting that:

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

and later

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Nursing standards and assisting in an emergency

22 May, 2014 - 12:57

A correspondent writes:

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

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

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

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

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

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

Exclusions – when the Framework does not apply

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

1.0 Actions in an emergency

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

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

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

Your opinion on this matter would be personally appreciated.

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

•          Identify client need/benefit

•          Reflect on scope of practice and nursing practice standards

•          Consider context of practice/organisational support

•          Select appropriate, competent person to perform the activity

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

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

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

2.5          Treatment in emergencies

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

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

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

 


Categories: Researchers

Nursing standards and assisting in an emergency

22 May, 2014 - 12:57

A correspondent writes:

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

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

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

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

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

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

Exclusions – when the Framework does not apply

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

1.0 Actions in an emergency

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

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

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

Your opinion on this matter would be personally appreciated.

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

•          Identify client need/benefit

•          Reflect on scope of practice and nursing practice standards

•          Consider context of practice/organisational support

•          Select appropriate, competent person to perform the activity

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

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

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

2.5          Treatment in emergencies

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

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

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


Categories: Researchers

Membership of the RFS

22 May, 2014 - 12:52

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

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

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

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

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

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

RURAL FIRES ACT 1997 – SECT 20

Members of rural fire brigades

20 Members of rural fire brigades

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Membership of the RFS

22 May, 2014 - 12:52

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

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

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

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

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

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

RURAL FIRES ACT 1997 – SECT 20

Members of rural fire brigades

20 Members of rural fire brigades

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Constitutions for NSW RFS brigades

21 May, 2014 - 19:54

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That the long answer

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


Categories: Researchers

Constitutions for NSW RFS brigades

21 May, 2014 - 19:54

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That the long answer

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


Categories: Researchers

Red/blue lights on CFA Slip on unit revisited

21 May, 2014 - 18:24

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Red/blue lights on CFA Slip on unit revisited

21 May, 2014 - 18:24

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

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

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

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

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

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

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

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

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

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

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


Categories: Researchers

Bushfires; the price we pay for electricity

20 May, 2014 - 09:39

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What can be inferred from this discussion is:

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

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


Categories: Researchers

Bushfires; the price we pay for electricity

20 May, 2014 - 09:39

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What can be inferred from this discussion is:

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

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


Categories: Researchers

AEMI Mt Macedon to become a virtual shadow of itself

14 May, 2014 - 09:43

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

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

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

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

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

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

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


Categories: Researchers

AEMI Mt Macedon to become a virtual shadow of itself

14 May, 2014 - 09:43

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

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

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

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

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

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

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


Categories: Researchers

Passage of the Public Safety Business Agency Bill 2014 (Qld).

8 May, 2014 - 11:40

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

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

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

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

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

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

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

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

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

When does the Bill take effect?
The answer to that is not obvious; there is no section that says ‘This Act commences on…’. Presumably therefore the Act will commence operation when it receives Royal Assent (that is when it is approved by the Governor). It will be up to the Government to determine when that occurs so they can hold off, should they wish, the start of the Act to ensure that all the necessary administrative arrangements are in place.


Categories: Researchers