A correspondent from Victoria finds herself in quite a bit of trouble and is ‘feeling very lost and in need of guidance’.  Despite the unfortunate nature of her problem she says she ‘sought advice from my unit head … and she turned me onto your blog. You are welcome to post this on your blog if it would answer other people’s questions as well’.   With that invitation I do post the details and my answer here.

I got caught DUI (0.12) after a big night out, and I lost my license on the spot and will have to go to court. I will be graduating in two years’ time and want to know if this will affect my application.  I have heard I shouldn’t bother applying until at least five years, so I would drop out and try again in a couple of years.

On one view this is not a legal question; the issue of who they select for employment is entirely a matter for Ambulance Victoria.  They do provide some advice at www.ambulance.vic.gov.au/About-Us/Careers/New-Graduates.html where they say that an applicant for graduate employment must hold “A full Victorian driver’s licence or held a P2 probationary licence for at least 1 year prior to commencement”.  That invites some consideration of what is a full licence and other issues of the relevant law which I’ll address.

DUI is shorthand for ‘Drive under the influence’ (Road Safety Act 1986 (Vic) s 49(1)(a)).  That section says:

A person is guilty of an offence if he or she—

(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle;

The critical issue here is not the level of the alcohol in the blood but whether or not the driver is ‘under the influence … to such an extent as to be incapable of having proper control of the motor vehicle’.  The police don’t need a breath test to prove this offence and you can be under the legal limit and still ‘under the influence’.  People use DUI as a shorthand for all drink driving offences but that’s not the relevant offence here.

In my correspondent’s case the relevant offence is ‘driving with the prescribed concentration of alcohol’ (often referred to as PCA).   The essential issue in this offence is that when subjected to a breath analysis the driver has ‘more than the prescribed concentration of alcohol is present in his or her blood or breath’ (Road Safety Act 1986 (Vic) s 49(1)(b)).  The issue is not whether or not you are under the influence but whether the breath or blood test returns a reading above the legal limit.  The ‘prescribed concentration of alcohol’ is ‘a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood’ or ‘a concentration of alcohol present in the breath of that person of 0·05 grams per 210 litres of exhaled air’ (s 3).

A police officer may immediately suspend the drivers’ licence of any person who is caught driving with a reading of 0.10 or higher (Road Safety Act 1986 (Vic) s 51).

The maximum fine for a first offence where the reading is less than 0.15 is 20 penalty units (s 49(2A). As at 1 July 2015 the value of a penalty unit, in Victoria, is $151.67 (http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/) so the maximum fine is $3033.40.  The driver will also face a minimum period of disqualification from driving of 12 months.  The maximum period of disqualification is ‘such time as the court thinks fit’ (s 50(1)(a)(ii) and Schedule 1).

After 12 months the driver can apply to have her licence renewed.  To do that she needs to apply to the Magistrate’s court for a ‘licence eligibility order’ (s 31A).    When making an order to the effect that the person is eligible to gain a drivers’ licence the court may, and in some cases must, make a ‘alcohol interlock condition direction’ (s 50AAA).  Where the offence was an offence contrary to s 49(1)(b), was a first offence, was committed on or after 1 October 2014 and with a reading of less than 0.15 (which is the case here) the court must impose an ‘alcohol interlock condition direction’ for 6 months.  During that time the driver must only operate a vehicle with an approved alcohol interlock device is fitted (s 50AAA (2) and Schedule 1B, cl 14A).

If the driver was under the age of 25 at the time of the offence she must also complete an accredited driver education program (s 50A).

VicRoads say that when your licence is reissued it will be the same as the one previously held (that is a full licence holder does not go back to “P’s” etc).  See also ‘Getting your licence back’ (https://www.vicroads.vic.gov.au/licences/licence-and-permit-types/licence-conditions) and https://www.vicroads.vic.gov.au/licences/demerit-points-and-offences/drink-driving-offences/getting-your-licence-back-after-a-drink-driving-offence).

Is 5 years a golden number?  Not in Victoria.  There is no ‘spent conviction’ legislation in Victoria.   A criminal record will reveal all prior convictions no matter how old (Criminal Procedures Act 2009 (Vic) s 77) unless the offender was aged under 18 years and the offence was committed more than 10 years ago.  For future driving offences a driver is a considered a ‘first offender’ if their last conviction was more than 10 years ago (Road Safety Act 1986 (Vic) s 50AA).

Victoria Legal Aid advise that if you, or someone you authorize, applies for a copy of your criminal record it will only reveal convictions less than 10 years old (see ‘How far back do criminal record checks go?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records) but I can’t see any legislative basis for that limitation.  It appears that this rule is a product of the Victoria police ‘release policy’ (see ‘Frequently Asked Questions – National Police Certificate’ http://www.police.vic.gov.au/retrievemedia.asp?Media_ID=34692).

Conclusion

Let us assume all of this has been done and my correspondent has had her licence returned and served her 6 month interlock period.  Then she has a full driver’s licence.  Can she now apply to Ambulance Victoria (AV)?  It would seem that she then meets the criteria of ‘A full Victorian driver’s licence’ but that doesn’t mean AV have to give her a job.  There are many paramedic graduates, no doubt more graduates than there are jobs and no doubt AV will rank them in order of preference.  AV may well decide that a prior conviction and a prior traffic conviction in particular makes someone a less desirable candidate that a person with no prior convictions.   How AV deals with this issues is not a legal question (ie there is no relevant law on the matter) but one of their own policy.  To answer how they will approach the matter my correspondent will need to make enquiries with AV.   One hopes that they take the approach that a person, having suffered the penalty imposed by law, has ‘done the time’ and been punished for their offending so the prior conviction is irrelevant, but that can’t be guaranteed.    As Victoria Legal Aid say (see ‘Is it fair to be asked?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records):

There are no laws in Victoria against employers who discriminate against someone because of a criminal record. However, the Australian Human Rights Commission may be able to help with complaints.

 Post script

Neither my correspondent, nor anyone else, should rely on these comments, particularly in relation to sentencing.  Sentencing is a very complex matter and courts do have discretion that I haven’t discussed fully in order to keep the answer relevant and not too complex.  If you are facing a criminal charge, including DUI or PCA you should seek a solicitor or barrister of your choice to represent you in court and to make sure all of the options open to the court are explained to you, and explored with the Magistrate or Judge.    If you don’t already have a lawyer you may like to look at the Law Society/Law Institute website in your state or territory to find a list of accredited specialists in criminal law. (In Victoria go to http://www.liv.asn.au/Specialists)

This question comes from a volunteer sports trainer for a local club.   My correspondent writes:

The [organisation for which I volunteer] recently outsourced their training and qualifications to a private first aid company’s. I recently upgraded my qualification to a level 2 trainer.  During this training we have been shown how to insert advanced airways called i-gel. This training took less than an hour. I have since spoken to a number of paramedics from two different states who both tell me that, as paramedics, they were taught to use these over a number of months. They provided the advice not to use them unless I had oxygen and suction as problems can happen. Clubs across Australia generally don’t have oxygen and suction due to cost and laws about storage. I called the person within the organisation who looks after sports trainers and was told there was no policy to allow me to use them. So I’m confused, as I have been shown as part of my first aid training, and I use them in the setting of the organisation, can I be held liable as I have been given the training as part of a first aid qualification. I’m trying to do the right thing any advice would be appreciated.

This is quite a complex question and turns more on the science and the facts than it does the law.

To get a handle on the facts I looked at the i-gel product information.  According to the manufacturer, the i-gel is a ‘supraglottic airway’ that ‘has changed the face of airway management and is now widely used in anaesthesia and resuscitation across the globe’ (http://www.intersurgical.com.au/info/i-gel).  Further (at http://www.intersurgical.com.au/info/i-gel-emergency-medicine):

The i-gel O2 has been designed to facilitate ventilation as part of standard resuscitation protocols… However, the i-gel O2 incorporates a supplementary oxygen port, so it can also be used for the delivery of passive oxygenation, or Passive Airway Management (PAMTM), as part of an appropriate CardioCerebral Resuscitation (CCR) protocol.

I infer from that that the if the i-gel is used ‘as part of standard resuscitation’ but the optional i-gel 02 provides for ‘supplementary oxygen’ that, at least according to the manufacturer, oxygen is not necessary when using the i-gel.

The manufacturer provides links to evidence to support the use of the i-gel airway (http://www.intersurgical.com/info/resuscitation-evidence).  The Australian Resuscitation Council talks about the i-gel in guidelines published for Advanced Life Support (not basic first aid).  The ARC says in Guideline 11.6 – Equipment and Techniques in Adult Advanced Life Support – January 2016 (emphasis added):

2.3 Advanced airway devices

The endotracheal tube has generally been considered the optimal method of managing the airway during cardiac arrest. There is evidence that without adequate training and experience, the incidence of complications, such as unrecognized oesophageal intubation, is unacceptably high. Alternatives to the tracheal tube that have been studied during CPR include the bag-valve mask device and advanced airway devices such as the laryngeal mask airway (LMA), i-gel, laryngeal tube, and oesophageal-tracheal combitube (Combitube).

There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.

And later in [2.4]

Supraglottic airway (SGA) devices (e.g. LMA, Laryngeal tube, i-gel, Combitube) are generally considered easier to insert than tracheal tubes. They can be inserted without interrupting chest compressions, and their use in cardiac arrest has been increasing. Ten studies have compared a variety of SGA devices with the tracheal tube during out of hospital cardiac arrest… There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.

ANZCOR suggests using either a supraglottic airway or tracheal tube as the initial advanced airway during CPR for cardiac arrest in any setting….

Values and Preferences

In the absence of sufficient data obtained from studies of IHCA, it is necessary to extrapolate from data derived from OHCA. The type of airway used should depend on the skills and training of the healthcare provider. Tracheal intubation requires considerably more training and practice. Attempted tracheal intubation may result in unrecognised oesophageal intubation and increased hands-off time in comparison with insertion of an SGA. Both an SGA and tracheal tube are frequently used in the same patients as part of a stepwise approach to airway management.

What I infer from that is that an airway such as the i-gel is easier to use and requires less training than tracheal intubation but it is still an advanced skill.  There is no clear data that leads the resuscitation council to recommend either the use, or non-use, of the i-gel airway. What airway is preferred ‘should depend on the skills and training of the healthcare provider’.

I don’t know what sort of skills a ‘level 2 trainer’ is meant to have, who sets the syllabus for their training and whether they are expected to provide advanced life support over basic first aid.    As noted before however, this area is largely unregulated.  There is no hard ‘law’ (ie an Act of Parliament) about who can do what. A person can use an i-gel airway (or any other sort of airway) if they know how to use it including the indications, and contra-indications, for use.

Discussion

If an airway is used and if it causes complications or an adverse outcome for the patient, and if the patient sought a remedy for that use the question would be whether or not the person who used the airway took reasonable care.  The question of what is reasonable depends on all the circumstances but it is not answered by asking ‘did they perform as trained?’ or ‘were they acting in good faith?’ (see Vicarious liability for the actions of fire wardens (March 5, 2016)).

My correspondent has done the training that the sports organisation asks of a level 2 trainer and the training included the use of the i-gel airway. If the advice from the paramedics is correct, that is that their training took a number of months and that the airway should not be used without a supply of 02 and suction then it may be that the training was not appropriate.  To answer that one would need to look at the science and the pedagogy behind the training and the syllabus.   Let us assume for the sake of the argument that the training was inadequate and that my correspondent uses the airway and causes injury because there is no 02 supply or he or she fails to recognize that the airway is not working as intended.

The patient (who of course has no choice in who treats them in an emergency) would be able to say that the care they received was not ‘reasonable’.  The hypothetical reasonable person properly trained in the use of the airway would not have done what was done and in that case they would not have suffered the damage.  In that case there could be liability (but the question of who is liable is something I’ll turn to, below).

Assume, on the other hand the training was just fine (perhaps the paramedics were trained in the use of the i-gel 02, or just got further advanced training, or perhaps the training regime has changed, or they thought my correspondent meant intubation instead of an SGA device, who knows).   In that case if my correspondent uses the device as trained there will be no liability as there is no negligence even if there is an adverse outcome.

Who is liable?

My correspondent says that the organisation for which they volunteer have advised that there is ‘no policy … to allow me to use them’ but I infer from that they did not say there is a policy that prohibits their use.  I infer that the organisations policies are simply silent on the matter.  But of course they’re not silent, my correspondent went to training arranged by the organisation and that training, I’m told, included the use of the i-gel airway.

My correspondent has said that the role of a trainer is a volunteer role and let me assume that the sporting organisation involved meets the definition of a ‘community organisation’ (Civil Liability Act 2002 (NSW) s 60).   In that case the volunteer is not personally liable for any action done in the good faith performance of his or her duties (s 61).    It follows that if my correspondent uses the airway in the course of his or her duties then he or she is performing those volunteer duties and provided the action is ‘in good faith’ that is an honest attempt to perform as trained to benefit the person in need, there will be no personal liability even if the treatment is substandard and even if that is because the training was poor.

Will the organisation be liable if the volunteer trainer was negligent?  In all jurisdictions other than in NSW the answer would be ‘yes’ (Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) s 7).   New South Wales has the Civil Liability Act 2002 (NSW) s 3C.  This is a unique section that says:

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

What that implies is that if a volunteer, in this case the trainer, can rely on s 61 to say that there is no liability for the good faith performance by a volunteer of their volunteer duties, then the organisation for which they volunteer is also able to rely on that to say that they are not vicariously liable.  The way around that is that an injured person would argue that they are not saying the volunteer was negligent, but that the sporting or community organisation negligent for not ensuring that the person was appropriately trained, that the training was appropriate, that the person was actually up to the task etc.  It may be a bit of a fiction but in the right case if there really was a person who was injured because of the poor performance of a volunteer (either because they failed to apply the skills or their training was inadequate to start with) then I’m sure a judge would find a way to say that it was the organisation was negligent in its own right and still award damages. The outcome is the same by either route, albeit more complex and less certain in NSW, and that is that it would be the community organisation that would be liable if there was negligence.

The Civil Liability Act 2002 (Qld) does not say whether a community organisation is or is not liable when a volunteer is protected but I would infer from the common law principles that in the absence of a section like s 3C, the organisation would be liable.

Remember that if there is no negligence, the training was appropriate and the skills are correctly applied, then there is no liability even if there is a poor outcome.

Conclusion

My correspondent’s question was ‘can I be held liable as I have been given the training as part of a first aid qualification’ and I would add the inference that it was part of a first aid qualification that the organisation for which he or she volunteers required.  In those circumstances my answer would be that if the person applies that training and does so in ‘good faith’ (genuinely trying to help) then it will be the organisation for which they volunteer that is liable should the treatment be negligently applied and should that cause a poor outcome.   Remember of course that if a person needs resuscitation, a poor outcome is on the cards and a poor outcome does not prove negligence (see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015) and CPR success: TV v Reality (September 3, 2015)).

I have received two questions about this issue, both from Victoria.  My first correspondent wrote:

Recently my Fire Brigade in Victoria has opted to implement an emergency response system. The system basically takes the emergency information which is sent to the brigade via pager, and from this creates a map of the shortest route, nearby hydrants, weather etc. There are a number of these types of programs around and many of them are already in use in other Brigades and emergency services.

It’s all automatic. One system uses existing off air decoder infrastructure which is already installed at each fire station and generates the response information automatically using software designed by the owner of the company. Another system “taps into” the network using its own radio receivers and again generates the information automatically using software designed by the owner.

There has been much discussion regarding the legality of such a program and whether or not we are committing an offence by using them. I have tried to research the law which governs the use of this information however have been unsuccessful in finding the relevant legislation. Are you able to point me in the right direction and/or provide your advice on the subject?

I declined to address that as it was just too far outside my area of expertise and I didn’t have sufficient detail to understand the issue.  I have now received a second question from another correspondent who included a memo from Victoria SES dated 6 March 2016 headed ‘Enhanced Messaging Systems for Member Availability and Operational Response’.  My (second) correspondent wrote:

Currently, a major issue (perhaps across emergency services across the nation) is the use of scanning to view emergency alerting messages on different devices.  Of particular note is the current problem facing VICSES and CFA members in regards to the large user base of the mobile application BART (http://www.bart.emerg.com.au/).

A number of users had been running scanners to receive EAS paging messages on their computers or brigade PC’s to supplement the pagers commonly used for alerting.  The organisation behind BART took that a step further and integrated a paging feed (I’m assuming captured via a radio scanner) into their mobile application.

My understanding of the law up until now was that radio frequency scanning is perfectly legal as long as the user does not act on information they were not initially authorised to receive.  If that is indeed the case, then by being SES or CFA members that are authorised to act on the information (given that we are all issued pagers which receive the same information) how can the service send an email to all members with a blanket statement claiming it is illegal?  Over the past 5+ years I understand that telecommunications legislation has undergone some major changes and my lack of legal knowledge has made it rather difficult to understand.  Perhaps it has changed, and I am unaware.

I did phone the ACMA information line to ask about this and was advised that there were no issues with scanning.  After all, the CFA even sells Uniden scanners to their members.  Uniden themselves sell pre-programmed scanners for ESO frequencies to the general public.

I suspected VICSES may consider the BART application to be illegal as they are running a commercial service with information captured using a scanner, however the actual statement from the service seems to imply that no feeds of any sort may be captured in any way which I believe to be incorrect.  Being of an IT technical background, I have been keen to set up my own feed at the brigade headquarters to display on an information panel in our operations room, however according to the service this is illegal too.

I guess the question in summary is:  “Is radio frequency scanning illegal, and if not what can and can’t be done?”

I also note that there are websites that rebroadcast live streaming emergency service radio communications.

Let me return to my response to my first correspondent (where I declined to answer the question).  I claim some expertise in the law of emergency response, but not in telecommunications law, but I am indeed a lawyer so I should be able to find something.  To repeat what I say on the page ‘about’ this blog ‘This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events…’   That has to be particularly true here and what follow has to be read with a greater than normal degree of caution.

To clarify my understanding as this is what I’ll explore.  What I understand is happening is that the SES and CFA send out a message via pager.  I assume that works by sending some sort of data package that is transmitted from various base stations, the signal is received by the pager that can convert the data to text which is displayed on the screen.  Because these transmissions are out there a person with an appropriate receiver and decoder can also ‘catch’ the transmission and that is what BART (http://www.bart.emerg.com.au/) and others are doing.  They are then taking that data and providing enhanced mapping and other information that assists responders to get to the job.

With that understanding I’ll now begin an exploration of telecommunications law.

The advice issued by Victoria SES says:

The Executive wishes to reiterate the advice we have received, is that applications that illegally intercept the paging data feeds like BART and BART-like applications are not just technically illegal, they are actually illegal and VICSES cannot and does not endorse any activity that is in breach of the law.

Unfortunately it gives no reference to where the relevant law can be found.  The regulation of telecommunications is a Commonwealth, not a state matter, so we need to look at various items of Commonwealth legislation.

The Telecommunications Act 1997 (Cth) Part 13 provides for the Protection of Communications.  That part seems to govern various providers of telecommunication services and creates offences if they release information about their subscribers or the information that they communicate via their service.  In short your mobile phone service provider and its employees cannot disclose the contents of your text messages.

An ‘emergency call person’ (that is someone whose job it is to receive an emergency call) is not to release information that they receive in the course of their work as an emergency call person (Telecommunications Act 1997 (Cth) s 278).  Of course there is no offence if the disclosure is made ‘in the performance of the person’s duties’ so there is no offence for an ‘emergency call person’ to use the information they receive to dispatch the emergency services (s 279(5)).  Section 286 ‘Calls to emergency service number’ also allows the release of information that is given to an emergency call taker to the relevant emergency service.  We can infer that a person who receives a call for the CFA or the SES and then sends that information via the pager system to alert the brigade or unit commits no offence.

None of that prohibits interception of this data but it must impose some obligation upon the emergency services to act reasonably.  Consider an emergency call taker who is required to keep confidential the information received when a person makes an emergency call. The call taker can of course record that data and then use it to despatch the emergency services, but they couldn’t do that by going to the window and yelling out to the crew in the fire station across the road.  That would be disclosing the information to anyone else who is walking along the street (and see the discussion on the Privacy Act, below).  So a confidential system is used, either radio, telephone, or walking down with the call out information on a piece of paper.   We know that radio and telephone communications’ can be intercepted and there are limits to what a service can do to encrypt that data but they have to take some care not to disclose the information.

The Radiocommunications Act 1992 (Cth) provides that it is an offence to have or operate a radiocommunications device (which includes a receiver (s 7) unless there is an appropriate licence.  There are an infinite number of standards and licenses listed on the Federal Register of Legislation which allow us to have things like mobile phones, hands free phones, remote control devices etc.  I can’t determine whether or not the receivers that the various services that are providing enhanced response information are covered by those licences, but one would have to infer that if the emergency services can broadcast their message on a particular channel, a device that receives that message must be covered by a relevant licence.

It is an offence to use a transmitter that may interfere with emergency service telecommunications (s 196) but I don’t understand that what these services are doing is interfering with the ESO telecommunications.

The Telecommunications (Interception and Access) Act 1979 (Cth) s 7 says:

A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

Interception means ‘listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication’ (s 6).   A telecommunications system is a telecommunications network that is wholly or in part in Australia ‘and includes equipment, a line or other facility that is connected to such a network and is within Australia’ (s 5).  A telecommunications network is ‘a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication’ (s 5; emphasis added).

Radiocommunication means:

(a) radio emission; or

(b) reception of radio emission;

for the purpose of communicating information between persons and persons, persons and things or things and things (Radiocommunications Act 1992 (Cth) s 6).

A ‘radio emission’ is ‘is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur’ (s 8).  I have no idea what that means.  The maximum penalty for an offence contrary to s 7 is 2 years imprisonment (s 105).

Finally there is the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic).  Both these Acts give effect to the agreed Privacy Principles which provide, in short, that a public service agency can only use information that it receives for the purposes for which it was received and must take steps to ensure that the information is not disclosed to inappropriate persons.  In Victoria the Commissioner for Privacy and Data Protection ‘must develop the Victorian protective data security framework for monitoring and assuring the security of public sector data’ (Privacy and Data Protection Act 2014 (Vic) s 85).  Let us assume, without checking, that there is a framework and that it applies to both the CFA and the SES.

Discussion

Having set out some relevant law we can now try to apply it to the situation at hand even without proper technological understanding.  First my (second) correspondent says:

My understanding of the law up until now was that radio frequency scanning is perfectly legal as long as the user does not act on information they were not initially authorised to receive…I did phone the ACMA information line to ask about this and was advised that there were no issues with scanning.  After all, the CFA even sells Uniden scanners to their members.  Uniden themselves sell pre-programmed scanners for ESO frequencies to the general public.

The issue is that there is a Radiocommunications Act and a Telecommunications Act. Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to intercept a Telecommunication but there is no equivalent for radiocommunications.  Put simply it’s an offence to intercept Telecommunications but not Radiocommunications, but what’s the difference?

Since making the original post contributors have made comments (see the ‘Responses’ button, below).  I’m grateful for the comments by David Fitch, for helping my thinking here. (See also https://www.quora.com/Whats-the-difference-between-telecommunication-and-radio-communication).  David, in a comment says ‘I guess to me at least it comes down to whether a transmission is intended to be private or not’.  That’s not the legal test but it may still be helpful.  Anyone who has used a two way radio, whether it’s on a private radio network, UHF CB or the Government Radio Network knows that other people with a radio on the same frequency or in the talkgroup can hear the conversation.  When you pick up a phone, even a mobile phone, you expect that the only person who can hear the conversation is the person on the other phone.   The phone does not depend solely on radio communication as there has to be other features such as a SIM card, a telephone number and account etc and the phone is connected to the network.  If there’s no mobile tower nearby my ‘phone won’t work even to call the person next to me. A radio will transmit to the world from it’s own aerial and I can communicate with anyone in range without the need for those extra features.  That may be a useful way to imagine the difference.  David’s comment below, suggests that a pager is just another radio receiver and if that’s right that would mean the pager message is radiocommunication.  If on the other hand, it needs to be ‘connected to’ a network then it would appear it’s a telecommunication’s device.

As noted by my correspondent, you can easily buy a scanner and there are websites that stream emergency services communications (see for example http://nswscan.blogspot.com.au/p/live-streams.html).   On the assumption that action would have been taken if this was illegal I would infer this is not an offence under the Telecommunications (Interception and Access) Act 1979 (Cth) s 7 because this is intercepting ‘radiocommunication’ not ‘telecommunication’.

If a pager is a ‘radiocommunication’ then the Telecommunications (Interception and Access) Act 1979 (Cth) doesn’t apply in which case someone who ‘harvests’ the pager data is not committing any offence.  If the ESO facilitates that, however, the ESO may still be committing offences under the Telecommunications and Privacy laws unless they have taken the appropriate steps to bind the third party service provider to ensure that they do protect the data.

There are then a number of scenarios.

1. If a pager is telecommunications and the third party is intercepting the CFA/SES communication that is not intended for them, then that would be an offence contrary to s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).    A pager message is an example of telecommunication if the pager message is delivered via ‘a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but [is not] … a system, or series of systems, for carrying communications solely by means of’ ‘any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide’.
2. If the pager message is delivered via radiocommunication that is ‘a system, or series of systems, for carrying communications … solely by means’ of ’emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide’ then there is no offence in monitoring the transmission.
3. If the SES/CFA facilitate the service by providing the feed – so if for example a local unit contracts with the service provider and allows them to access their feed there are a number of other issues.  First that may be an offence under s 7(1)(b) (‘authorising’) or (c) (‘enabling’) of the Telecommunications (Interception and Access) Act 1979 (Cth).   Second, sharing the confidential information that the caller has provided with the service provider, without ensuring that the service provider is also bound by the relevant privacy principles, could be an offence contrary to the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic).  If the service is knowingly sharing the information with the service provider that might also be an offence under the Telecommunications Act 1997 (Cth) s 278.

It follows that the SES is correct, there are ‘legal issues such as accessing the data, and addressing information privacy requirements’ at least where the data is provided by the agency.  Equally if the third party provider is harvesting data from a telecommunication (but not radiocommunication) system then intercepting ‘the paging data feeds’ is illegal.

That does not mean that setting ‘up my own feed at the brigade headquarters to display on an information panel in our operations room … is illegal too’ because that is using the information for the purpose for which it was intended and is keeping the information within the agency.  It is not disclosing the information to some third party without ensuring that they too will honour the agencies obligations.  I can’t comment on that in detail but it does appear to be quite different.

Conclusion

As noted at the start this is my first foray into telecommunications law (and I thank my correspondents for opening a new area for me) so my conclusion has to be read with more caution than normal.  A particular problem is that I don’t know or understand the technical details of what the service is providing, how the pager system works and how the message is being obtained by the enhanced service provider.

With those limitations however, it is clear that indeed there could be many issues. The critical issue is that by getting the data from the pager/call out feed the third party provider is getting access to private information without the consent of the person who gave the information and either without the consent of the CFA/SES or without contractual guarantees to ensure that the service provider is committed to protecting the data as if they were the CFA/SES.   To return to the SES memo it says:

VICSES has had discussions with EMV who have undertaken to conduct some further research, including what other interstate jurisdictions are doing about BART and similar applications, seeking advice from ACMA as to what options are available to address legal issues such as accessing the data, and addressing information privacy requirements.

That seems eminently sensible. If ‘Units have gained some advantages through enhanced capability to manage member availability and in some cases supplement the primary alerting system’ then the commitment from VICSES to look at options will, hopefully and in due course, find a way to secure those advantages.  In the meantime the direction that ‘Units are not to seek extensions, renewals or variations to such contracts or to enter into any new contracts following this advice’ also seems entirely sensible.

That’s the heading of an article by Gerry Fitzgerald appearing in the online journal ‘MJA Insights’ (ie short stories from the Medical Journal of Australia).   This article will be of interest to paramedics who are concerned about hospital delays and being called to what they consider inappropriate calls.  Dr Fitzgerald says:

Professional emergency health care has been transformed over the past four decades with the upgrading and modernisation of both prehospital and hospital-based acute care and the development of new professional roles of paramedic, emergency physician and emergency nurse.

While the improvements in health outcomes are unquestioned, this transformation has also been associated with system-wide congestion which is known to have adverse clinical, organisational and social outcomes, and which is caused by the combined impact of increased demand, access block and increased clinical capability.

However, the public policy responses have tended to be predicated on blaming someone rather than an in-depth understanding of the causes of the problem and designing solutions based on that understanding.

We have tended to blame the patients by calling their attendance “inappropriate”. Or we blame the clinicians or the government for cost shifting, inefficiency or insufficient resourcing.

However, the evidence collated over the past 10 years in particular has shown an entirely different picture and the trends have been confirmed in the recent report into emergency department care by the Australian Institute of Health and Welfare.

Demand for emergency health care is growing by 2% per capita each year (3% for ambulance). Growth is among the more urgent triage categories, across all age groups and both genders and across the system as a whole.

Further, interviews with patients confirmed that the decision to seek acute medical care is generally a conscious and well considered decision based on weighing up the alternatives and often supported by advice from family, bystanders or health professionals.

So if the issue isn’t patient’s abusing the system, what is the issue and what’s to be done?  Dr Fitzgerald has a number of suggestions but rather than repeat them, you can read the full article here: https://www.mja.com.au/insight/2016/8/uncomfortable-truth-about-emergency-care

A correspondent from Tasmania writes with a question about the functions and responsibility of wardens in an emergency control organisation.  My correspondent asks:

… in respect to the legal liability  of a warden whilst performing their role in accordance with the site emergency plan. Can the individual (chief warden, area warden or floor warden) be sued for actions they may take during an emergency?  I note that in Tasmania the crown solicitor has ruled that wardens in the public sector are protected if they are “acting in good faith”, I’m not sure that the private sector has a similar or can rely on the same ruling (a legal nexus?) Are you able to provide comment or advice?

The answer is ‘no; the individual (chief warden, area warden or floor warden) be sued for actions they may take during an emergency’ but not for reasons suggested by the question.  The answer here depends largely on the common law so will be relevant and equally applicable in all jurisdictions.

The Tasmanian Crown Solicitor does not determine what the law is.

First, the Tasmanian Crown Solicitor may have given advice in relation to wardens in the public sector but an advice is just that, an advice, it is not a ruling and does not determine the law.  It is the solicitor’s opinion as to what the law is and how it might apply (just as this blog sets out my opinion).  So the Crown Solicitor has not ‘ruled’ that there is protection.  The Crown Solicitor’s advice is not a ‘precedent’ that sets out legal principles to be applied in subsequent cases.  It follows that the private sector cannot rely on it as a ‘ruling’ as they could if a judge had determined the matter in court.

Good faith is not a common law defence to a claim in negligence

So what is the position?  The first is that ‘good faith’ is not a defence to a claim in negligence.  In negligence the plaintiff has to show that the defendant owed them a duty to take reasonable care, they failed to act ‘reasonably’ in the circumstances and the defendant’s failure was the cause of the plaintiff’s harm.  The fact that the defendant was genuinely trying to do the right thing is not a defence known to the common law.  In Vaughan v Webb (1902) SR(NSW) 293 a fire brigade superintendent pulled down a wall.  The parties agreed that his actions were negligent but were done in good faith.  Did the fact that he was acting in good faith mean there was no liability for the negligence?  The answer, according to all three judges (Stephen ACJ, Owen and Pring JJ) was ‘no’.  Pring J said (at p 307):

… in my opinion, the words “bona fide” when used to qualify a negligent act are quite meaningless.  A negligent act is one which a man exercising ordinary care and prudence would not commit.  The element of bad faith has manifestly no place in such a definition.  A man may act with the most perfect bona fides and yet be guilty of imprudence or carelessness.

It was because of that decision that all fire and most emergency service legislation now have provisions that say a fire fighter, or the agency, is not liable for acts performed ‘in good faith’.  If good faith was a defence at common law, those sections would not be required.

Vicarious liability

So what could the crown solicitor have meant?  I would infer that he or she was really talking about the concept of vicarious liability.  That rule says that an employer is liable for the negligence of an employee who is acting in the course of his or her employment.  In the course of employment means doing your job – even if you are doing it badly or negligently.   The neat summary is that an employer is liable even if the employee does ‘authorised acts in an unauthorised way’ (New South Wales v Lepore (2003) 212 CLR 511).  Vicarious liability can also extend to any act that is for the employer’s benefit, at the employer’s direction or endorsed by the employer (CCH Australian Torts Commentary, [¶3-340] Vicarious liability).

The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).   Some justifications are that the point of liability is to ensure that a person who is injured is compensated.  The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be a person running a business not their employee.   If a person is running a business and employs someone the business owner reaps the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own.  As the employer gets the benefit so too they should take the risk.  The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc.  All things that a person who engages with the business has no control over.   So the employer is liable but he or she or it can do much to limit that liability by the way they run the business.

Let us then assume a person is employed and one of their duties is to act as the fire warden. There is a fire alarm and they fail to perform their duties as instructed or expected.  If anyone could show that it was that failure that caused their loss and damage (rather than, say the fire) it is the employer that would be liable.   Further if the employee is not up to the task, then it is the employer who will be liable as it is the employer’s obligation to ensure the workplace is safe and that there are appropriate emergency plans in place.  If the fire warden fails, it is the employer who has failed – see Work Health and Safety Act 2012 (Tas) s 19 and Work Health and Safety Regulations 2012 (Tas) r 43.  But vicarious liability won’t apply if there’s actual malice, ie bad faith.

Good faith v Bad faith (or bona fides v mala fides)

Assume that there is a person who works in a building who is deaf and so cannot hear an audio fire alarm. The fire warden is instructed that in the event of a fire alarm it is the warden’s responsibility to enter this person’s office and make sure they are aware of the alarm and are told of the need to evacuate.  If a fire alarm goes off and the warden forgets to do that, or in the melee of real smoke and flames just fails to do that, then the employer would be liable for the negligence of the fire warden.  If, on the other hand, the warden saw this as a chance to get rid of an unpleasant work colleague and deliberately didn’t warn the deaf employee in the hope that he or she would be killed in the fire, then that would be an act of bad faith and there would not be vicarious liability.

As an aside, it should be noted that if the injured person is also an employee none of this matters.  If an employee is injured they will be entitled to workers compensation whether their death or injury was due to neglect or malice. Workers compensation is a ‘no fault’ scheme so he or she will get compensation and questions of ‘vicarious liability’ won’t actually arise.

Misconceptions about insurance

This discussion is important for another reason.  People are often told words to the effect of ‘if you go outside the training, or do something wrong, you won’t be covered by our insurance’.  That is a poor explanation.  An employer (and here we can extend the discussion to agencies that use volunteers like the fire and emergency services) has insurance to cover their liability.  They are liable for the negligent or other wrongful act of their employees (or volunteers).  This liability is not something that they extend to their employees as a matter of respect or loyalty, it is a legal position that they cannot avoid. So an employer (or anyone) takes out insurance to indemnify them should the insured risk occur – eg an employer will (or should) have insurance so that if, in the course of running their business, they cause someone a loss or injury then the insurance company will pick up the bill.  The insurance company is not ‘insuring’ the employee, it’s insuring the employer but the employer is liable for the negligence of the employee.   If the employee does an ‘authorised act in an unauthorised way’ (so that they are negligent) the employer is liable.    The issue is not whether the employee is or is not ‘covered’ by the insurance, it is whether they are acting in the course of their employment.  If the risk that arises is one that the employer does not have insurance for, it is still the employer who is liable.

Another important point about insurance is the issue of ‘subrogation’.  Subrogation is a rule that says that an insurance company that indemnifies their insured is then given all the rights of the insured.  If, for example, my house is insured against the risk of fire and there is a negligently caused bushfire that destroys my home. I claim on my insurance policy and get paid out and provided I had adequate insurance, I’m happy.  My insurance company then has all my rights and can go and sue the person or agency that caused the fire and they sue in my name and they don’t need my permission to do so.    Although a court case may have many named plaintiffs, there may be really only one insurance company that is taking the action – see Class action over the 2013 Blue Mountains (NSW) fires starts –but who’s suing who? (August 24, 2015).

All else being equal, if an employee negligently caused injury the employer would be liable. If the employer then claimed on an insurance company and was indemnified the insurance company could then sue the employer to recover the damages paid.  But all is not equal, the right of subrogation has been removed so an insurer cannot sue a negligent employee to recover any damages paid (Insurance Contracts Act 1984 (Cth) s 66); in NSW see also the Employees Liability Act 1991 (NSW) s 3).

Conclusion

A fire warden who is trying to do his or her job and is acting in good faith is protected in that if they are negligent (and if it is there negligence that caused a person’s loss or damage, something that would be hard to prove if there really was a fire or explosion) then it is their employer that would be vicariously liable for that negligence.   The employer may well be liable if their emergency plan fails on the basis that the staff were not properly selected, trained or otherwise capable of performing their duties.

If the warden was acting in bad faith, that is they take the chance of the fire to maliciously do the wrong thing to advance their own interest then they would not be protected by vicarious liability.

The Victoria Emergency Service Association (VESA) is supposed to take the concerns or ideas of Victoria SES (VICSES) Volunteers to VICSES management and board. Although VESA can start an open dialogue with VICSES and put forward Volunteer concerns, they don’t actually have any powers to help create change or provide a positive outcome for Volunteers. From what I can see VICSES don’t have any obligation to listen to VESA. The only reference I can find of VESA is the Volunteer Accord which I have been told has now expired. To add to this further and I’m no expert but I believe this accord would be invalid since VICSES became a statutory authority in 2005.

My question is: Would it be possible/legal to push for a “Volunteer Association” within VICSES legislation that has the ability/power within the organisation to voice Volunteer concerns or ideas? To provide an independent system outside unit leadership teams and paid staff? An alternative to allow any issues or disputes between Volunteers to be kept in-house without the need to take matters externally?

I always compare VICSES to CFA. Both agencies are statutory authorities, both work under Emergency Management Victoria (EMV), both have a board of directors that are required to report the Minister for Police and Emergency Services. However once key difference aside from the roles each agency is responsible for, the CFA have their Volunteer Association established under the Country Fire Authority Act.

I’m unfortunately not versed enough in any of this legal jargon to confirm to myself whether a: I am talking total nonsense or not and b: If the powers enacted to the CFA Volunteer Association provides them with the powers I believe they should have. So I was hoping you may be able to shed some light on this for me? I suppose to summarise is there a legitimate and constructive way to tip the scales so that volunteers have a voice for the valuable work they perform to keep their communities safe.

And a quick note, I wish to confirm to you that my views and opinions don’t represent that of the Victoria Emergency Service Association.

I have been provided with a copy of the Victoria State Emergency Service Volunteer Accord that was signed on 6 May 2004.  That accord ‘recognises that Volunteers operate under the Victoria State Emergency Service Act 1987…’  The 1987 Act has been repealed and replaced by the Victoria State Emergency Service Act 2005 (Vic).  The accord further says (emphasis added) ‘To ensure that there is ongoing commitment to the principles of this Accord, the Service will facilitate a review four years after its commencement or upon request by any of the parties to the Accord.’  I do not know whether that 4 year review occurred.

The Accord does not, however, have an ‘end date’ that is it is not expressed to be only for a fixed period.  There is no reason to think that it does not reflect the ongoing relationship between the VICSES and the VESA.   Even though the 1987 Act has been repealed anything ‘created’ under that Act continue to apply under the 2005 Act and any reference to the 1987 Act must now be read as a reference to the 2005 Act (see Victoria State Emergency Service Act 2005 (Vic) s 56).

I will however, for simplicity sake, assume for the sake of the argument, that the 2004 Accord is not relevant because, whether it is or isn’t, it doesn’t answer my correspondent’s questions.

My correspondent says that the Volunteer Fire Brigades Victoria (VFBV), ‘the voice of CFA Volunteers’ (http://www.cfa.vic.gov.au/about/volunteer-association/) is ‘established under the Country Fire Authority Act’.    Under the Country Fire Authority Act 1958 (Vic) the CFA ‘is first and foremost a volunteer-based organisation’ (s 6F).  The Government, the CFA and the VFBV have agreed to a volunteer charter (s 6G) that:

(a) is a statement of the commitment and principles that apply to the relationship between the Government of Victoria, the Authority and volunteer officers and members; and

(b) requires that the Authority recognise, value, respect and promote the contribution of volunteer officers and members to the well-being and safety of the community; and

(c) requires that the Government of Victoria and the Authority commit to consulting with Volunteer Fire Brigades Victoria Incorporated on behalf of volunteer officers and members on any matter that might reasonably be expected to affect them.

The CFA, when is required to ‘have regard to the commitment and principles set out in the Volunteer Charter’ (s 6H).  Further, the CFA ‘has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services’ (s 6H).  The VFBV is given a specific role.  It is ‘to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion)’ (s 100).

Section 100 has been in the CFA Act since it was enacted in 1958. (In 1958 the section referred to ‘(a) an association of members of urban brigades to be known as the “Urban Fire Brigades Association”‘ and ‘(b) an association of members of rural brigades to be known as the “Rural Fire Brigades Association”‘.  Today volunteers are represented by the VFBV regardless of whether they are in an urban or rural brigade.) Sections 6F-6I were inserted into the Act by the Country Fire Authority Amendment (Volunteer Charter) Act 2011 (Vic).  There are no similar provisions in the Victoria State Emergency Service Act 2005 (Vic).

Let me now turn to the questions asked:

Would it be possible/legal to push for a “Volunteer Association” within VICSES legislation that has the ability/power within the organisation to voice Volunteer concerns or ideas? To provide an independent system outside unit leadership teams and paid staff? An alternative to allow any issues or disputes between Volunteers to be kept in-house without the need to take matters externally?

The answer is ‘of course’.  The law is whatever we want it to be.  It’s one of the challenges trying to explain legal research in the context of a University.  My colleagues in the physical sciences try to understand the way the world works.  If they discover something that can be described as a ‘law’ of physics (such as that E=MC2) then E does in fact equal MC2 whether we like it or not.  If the formula E=MC2 really is correct, then it is correct.   Discover a law of human making however, and if we don’t like it we can change it.

The Country Fire Authority Act 1958 (Vic) provides for a volunteer charter and a statutory role for the VFBV, but the Victoria State Emergency Service Act 2005 (Vic) does not.  Is it possible to change the SES Act?  Of course it’s possible.  The parliament of Victoria could easily put sections, akin to ss 6F-6I and 100 in the SES Act if it wanted to.  The issue becomes convincing the parliamentarians that it’s a good idea and they should do it.  That is not so easy.  To get the parliament to change the law I would imagine the members and the VESA would have to lobby the Minister and the Premier, and if they couldn’t be moved the backbenchers and perhaps the opposition. No doubt the Minister and Premier would ask VICSES whether they thought enacting something like s 100 of the CFA Act was a good idea – would it help their work or not?  What problem would it fix?    So is it possible for that to happen?  Of course.  Will it happen? That depends on the political will, the perceived problem and whether that’s a useful solution.

Do ‘the powers enacted to the CFA Volunteer Association provide them with the powers [my correspondent believes]… they should have?

That’s hard to say. Of course it requires one to infer what powers my correspondent thinks the VFBV should have, but the reality is that s 100 doesn’t give very specific powers.  It creates a role for the VFBV but whether they are successful in that role will depend on much more than just the legislation.  It allows the VFBV ‘to consider and bring to the notice of the Authority all matters affecting [the]… welfare and efficiency …’ of members of the Brigades.  It doesn’t allow the VFBV to insist that the CFA respond to those concerns in any particular way.  The Act does not give the VFBV particular authority to resolve or mediate ‘issues or disputes between Volunteers … without the need to take matters externally’ (by which I infer my correspondent means to the regional and other staff of the CFA).  If they do that sort or work they do so by virtue of the willingness of the VFBV to take on that role and the terms of the Association’s rules.

Is there a legitimate and constructive way to tip the scales so that volunteers have a voice for the valuable work they perform to keep their communities safe.

That I can’t answer as I don’t know whether VICSES volunteers do, or do not ‘have a voice for the valuable work they perform’ nor do I want to enter into that debate. Whether the scales need to be ‘tipped’ is a question I cannot answer and will not attempt to do so.   If however a volunteer, or a group of volunteers, think that they do not have the voice that they want to have then of course there are ways to change the world. Whether that is lobbying the VESA leadership to take a different approach, running for office with the VESA, lobbying government to change the law or running for Parliament, there are ways to ‘tip the scales’.

I was wondering if you could give your opinion on who can and who cannot break into a car in a case where someone left a child locked in their vehicle? Police, Fire & Rescue, Ambos, First Aid Volunteers, Security and bystanders are all in different situations where they can come across this and I wonder if most would be too scared to act due to the fear of prosecution.

To the list of potential rescuers we should add road service patrol officers (eg NRMA, RACQ, RACV etc).

Fire brigade legislation does give the various Australian fire brigades extensive powers to take action in an emergency that would include forcing entry to a car to release a trapped child (Emergencies Act 2004 (ACT) s 34 General Powers of Chief Officers so these powers are vested in the Chief Officer of ACT Ambulance, ACT SES, ACT Rural Fire Service and ACT Fire and Rescue; Fire and Emergency Act (NT) s 20; Fire and Emergency Services Act 1990 (Qld) s 53; Fire Service Act 1979 (Tas) s 29; Fire Brigades Act 1942 (WA) s 34).   In some jurisdictions these powers are limited so that they only apply in response to a fire or hazardous materials incident (Fire Brigades Act 1989 (NSW) ss 11-22D; Fire and Emergency Services Act 2005 (SA) s 42 with respect to South Australian Metropolitan Fire Service and s 96 with respect to the Country Fire Service; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Country Fire Authority Act 1958 (Vic) s 30).

State Emergency services may also be given specific powers to enter property to rescue people (Emergencies Act 2004 (ACT) s 34; State Emergency Service Act 1989 (NSW) s 22A; Emergency Management Act 2013 (NT) ss 46 and 47; Fire and Emergency Services Act 1990 (Qld) s 149 with respect to ‘authorised rescue officers’; Fire and Emergency Services Act 2005 (SA) s 118; Fire and Emergency Services Act 1998 (WA) s 18B).

Ambulance officers in some states also enjoy explicit powers that would extend to breaking open a car to release a trapped child (Emergencies Act 2004 (ACT) s 34; Ambulance Service Act 1991 (Qld) s 38 with respect to ‘authorised officers’; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).

It is beyond the scope of this blog to go through all the Australian police legislation so I’ll limit myself now to NSW.  A NSW Police officer may ‘enter premises’ (which includes a vehicle) if ‘a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person’ (Law Enforcement Powers and Responsibilities Act 2002 (NSW) s 9).  No doubt similar provisions exist in most if not all other jurisdictions.

Member of the emergency services that do not have relevant, specific powers, first aid volunteers, security staff, bystanders, and road side patrol officers are all in the same positon, they have no specific legal authority to force open a car – but none is needed.  And none is needed because there is a general authority established by the common (or judge made) law.    (The discussion that follows is taken from my own book Emergency Law (4th ed, Federation Press, 2013, Chapter 3)).

An intentional interference with the goods of another (which would include a car) would be a trespass and would entitle them to compensation for any damage caused. To put that in context, smashing the window of a car in order to get out a heat-stressed child would, without legal excuse, constitute a trespass and would warrant the pay­ment of compensation. It would, however, be outrageous to consider that the person should be liable to pay the cost of the damage to the window. The legal defence lies in the common law notion of “necessity”.

For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247..  The doctrine can be traced back to 1538 when a court said:

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

In 2008 the High Court of Australia said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ).

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property”.

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

In New Zealand it was said:

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)).

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

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403).  This principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise (Leishman v Thomas (1958) 75 WN(NSW) 173, 175).

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

The Children and Young Persons (Care and Protection) Act 1998 (NSW) s 231 says:

A person who leaves any child or young person in the person’s care in a motor vehicle without proper supervision for such period or in such circumstances that:

(a) the child or young person becomes or is likely to become emotionally distressed, or

(b) the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired,

is guilty of an offence.

The maximum penalty is a fine of 200 penalty units ($2200).

(For a comparison of the laws in each jurisdiction see https://www.slatergordon.com.au/blog/unattended-children-getting-facts-straight)

The test in the Children and Young Persons (Care and Protection) Act is probably a good guide.  Any person who sees a child locked in a car can take action if they reasonably believe that the child is ‘or is likely to become emotionally distressed’ or the child’s health is ‘or is likely to become permanently or temporarily impaired’.  Provided there are reasons to hold that belief that will be sufficient even if it turns out that the child was not distressed, there health was not impaired and mum or dad were about to walk around the corner.  It may not be reasonable on cold, wet and foggy morning to smash the window of the car when the parents are standing in sight of the car perhaps buying fruit at the roadside fruit market.  It may well be reasonable in an open air car park where the owner of the car is not obviously nearby and you’ve first checked that the doors are in fact locked.

Other defences

In terms of personal liability members of the emergency services that do not have any specific power, eg paramedics with the Ambulance Service of NSW will not be personally liable for their decision.  If they have responded, and given the ambulance service’s general duty to render first aid to, and transport sick and injured persons (Health Services Act 1987 (NSW) ss 67B and 3 (definition of ambulance services)) will be able to argue that their actions were in the course of their employment as paramedics and a good faith performance of their duties for ‘the protection of persons from injury or death, whether or not those persons are or were sick or injured’. (Health Services Act 1997 (NSW) s 67I).

A person who has no particular authority other than concern for the child’s welfare would be able to point to the Good Samaritan laws.  A ‘”good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.’   ‘A good samaritan does not incur any personal civil liability in respect of any act or omission… in an emergency when assisting a person who is apparently injured or at risk of being injured. (Civil Liability Act 2002 (NSW) ss 56 and 57).  A child who is in a car ‘in such circumstances that … the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired’ would also constitute a relevant emergency for the good Samaritan provisions.

Defences do not guarantee that someone won’t ‘try it on’

The law says that this action is Ok but the law is not self-executing.  What I mean by that is that just because the law justifies the action it does not mean everyone will see that it was ‘reasonable’ in the circumstances.  The owner of the car may well want to demand compensation.  If push comes to shove they may even take legal action.  The law means the rescuer can go before the relevant tribunal (probably a small claims court) and say ‘I’m not liable’ but it does not guarantee that the owner won’t ‘try it on’.   A person is less likely to try it on when the rescuer is the police, fire service, ambulance service or road service.    (Having said that, I recall when I was a legal officer for NSW Health and a person asked us to pay for the door that the ambulance service had forced when they came to save the person’s life.  We gave that a very short answer and heard nothing more).

A person concerned about that may prefer to ring 000 for emergency assistance, take a photo before affecting the rescue, or at least ask other bystanders to confirm that they think it’s a reasonable response and hopefully get their names and address to act as a witness to confirm that the circumstances did warrant that action.  Those steps are not necessary, you don’t need to do them and presumably would not take the time in clearly urgent circumstances.  If it is 40 degrees in the shade and the child is obviously distressed or worse, unresponsive, just smash the window.  The response of the police and the press will pretty much ensure that the car owner isn’t going to try on a claim for compensation.

A legal anomaly

Under the Australian Road Rules the driver of a car must ensure that the car is secure (Road Rules 2014 (NSW) r 213).   Rule 213(4) says:

If the driver will be over 3 metres from the closest part of the vehicle, and …

(b) there is only a  child  or children under 16 years old left in the vehicle,

the driver must remove the ignition key before leaving the vehicle.

Maximum penalty: 20 penalty units ($220).

So a driver might decide they’ve got to run into the shop to buy the milk but they’ll leave the child or children in the car, but because of rule 213(4) it would be an offence to leave the key in the car so it would be impossible to leave the engine and air conditioning running.  The anomaly is that rule 213(4) certainly anticipates that a child will be left in the car.  It could be amended to say that if the driver will be over 3 metres from the closest part of the vehicle, they should ensure that there is no child under the age of 16 in the car; but that’s not what it says.

A Victorian volunteers asks about ‘… EM staff who create a social media account and use the name of their organisation in the tag but state that the views expressed are their personal views’.   My correspondent has provided a screen shot of a page by a senior fire fighter that identifies his position and agency but says ‘Views expressed are my own’ (I won’t reproduce that shot as I don’t want to speak about that member, but about the issue in general).

My correspondent continues:

In the event that a member of the community is following this information I would have no doubt that they would assume that the information is from a trusted source. I suppose the legal question in this case is can a person that looks, smells and feels like an agency representative include a statement that their views are their own. I would have thought that they will be seen as a representative and as such the ‘views are my own’ statement should be deleted.

I have to infer what sort of legal issues we are talking about here and what the person is talking about on their social media page.  I will assume that the page in question is either open to the public or at least widely available to members of the agency.  It’s not a closed group where the only members are family and personal friends known to the author.

I would suggest that if a senior officer is going to put out, on a widely available social media page, any community warning and advice information they are not going to really be putting out their own views.  I can’t imagine that if the agency puts out a ‘watch and act’ warning for Kickatinalong, a senior member is going to say ‘I reckon that’s crazy, the fire’s never going to get there’.   Equally if the agency is saying ‘clear your gutters as good storm preparation’ the officer is not going to contradict that and say ‘I don’t think you need to, it really doesn’t make a difference’.  So in that context its hard to see how they are going to express their own views rather than the official line.  And one can imagine that if their views are contrary to the official line, they are not going to be in the job for long.  A ‘member of the community … following this information’ is going to be at least confused.

It’s also hard to imagine they are going to give their own views on various issues.  I don’t suppose that if there has been a public complaint about conduct within the agency and the Commissioner has said ‘we’ve investigated and are satisfied that everything was in order’ that a senior officer is going to say ‘Well that’s rubbish, the investigation was a white wash and the person the subject of the complaint should have been kicked out’.   And one can imagine that if their views are contrary to the official line, they are not going to be in the job for long…

Perhaps they’ll express their own views on politics – supporting one candidate in favour of another; or social issues – claiming that women are being unfairly appointed because they’re not really up to being fire fighters; news events – I saw the accident and it really was the driver of the truck at fault, or …. I’m not sure what else.  Although a person is allowed to hold their own views, by expressing them in public and linking themselves to their organisation they are clearly holding themselves out as part of that organisation and may well be in breach of the agencies code of conduct.  For example, the NSW SES Code of Conduct and Ethics says (at [6.2], emphasis added):

Where comment might be perceived as being an official view of the NSW SES, the Member must seek authorisation for such comment via the Manager Corporate Communications on behalf of the SES.

Given the person express link to the agency, their comment may well be perceived as the ‘official’ view even if they say ‘views expressed are my own’ as people might well (like me) not really believe the person is going to express their own views.

The NSW Police ‘Official Use of Social Media Policy’ says a

…“personal’ social media site is a site owned by a NSW Police Force employee and used for personal or private interaction, with content that does not represent the NSW Police Force, a business, charity or other organisation.

If a person is operating a public social media site and identifies themselves by name and agency it would, in my view, be hard to argue that is for ‘personal or private interaction’.

(I should I note that my correspondent is NOT from either NSW SES or NSW Police nor is the person who maintains the page he sent me, I’m just picking these as agency examples.)

It’s a bit like a person sitting with a couple of close friends and saying ‘the Commissioner is a dick’ compared to standing on a soap box in the Sydney Domain, in uniform, and saying ‘the Commissioner is a dick, but that’s just my opinion’.   One’s probably OK, the other is not.

Compare this situation to my own.  I operate a private Facebook page and the only requests I accept are from people I’ve actually met.  I also have this WordPress site, Facebook page (Australian Emergency Law) and LinkedIN.  Whilst I like to think that all my readers are my friends, there are many followers there who I don’t know.  I approach the ‘public’ pages differently to the private one.   On these public fora there is a brief bio that does point out I work for the Australian National University.   Even so I wouldn’t expect anyone to think that I am expressing the views of the the ANU because 1) I’m not senior management (it might be different if I was the VC); 2) no-one would expect the ANU to have a view on emergency management law and 3) there is an understanding that one of the things academics are paid to do is express their own views, even if they are contrary to the views of their institution and the government of the day.  That is the fundamental role of academics enshrined by the concept of ‘academic freedom’.  I’m not sure that would be true for an agency officer who identified their social media site as the site of “…..Officer, …. agency’.

Even if a site is for personal or private interaction it does not mean posts there cannot come back to bite you.  Whilst often reluctant to point to US precedents, I do refer readers to the US Fire Law Blog maintained by fire fighter and lawyer Curt Varone.  His blog is full of posts where US fire and EMT professionals have lost their jobs over social media posts and these include cases where they really are just posting on their own blog sites – see http://www.firelawblog.com/category/social-media/

Conclusion

I can’t point to any specific law here; just the principles and how as a lawyer one would approach the issue.  If a member has identified themselves by agency and rank and particularly if they are a senior rank, they can’t really say ‘their views are their own’ as no-one could seriously believe that the views they are expressing are their own.  And if the views being expressed run counter to the official line, or the agencies code of conduct, or the agencies expectation of its staff, they can expect serious consequences for their employment (see for example Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097).

Even if what they are putting up is news stories about how they attended the local unit and had a lovely social gathering to hand out awards, they are still reporting on their official duties.

I can’t see how a person who identifies themselves by rank and agency can expect a statement that ‘the views expressed here are my own’ to have any meaning.

This question comes from NSW:

I’m the driver of an emergency vehicle in NSW.  My employer has a policy that says when we are traveling under lights and sirens we must come to a complete stop at red traffic signals before proceeding through.

On a number of occasions, whilst following this policy, I have seen that the traffic travelling with the green light have seen and heard me and stopped to allow for my passage. However once they see me come to a complete stop they assume that it is ok for them to continue through the intersection. I then start to move into the intersection causing confusion for the other motorist who again brakes. My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

I have proposed this question with my employer and their answer is as long as I have followed their policy I’m not at fault.

The problem with any answer that says ‘as long as I have followed their policy I’m not at fault’ is that it assumes the police, a plaintiff and/or a court are ‘bound’ by the employer’s policy.  And they are not.  They are entitled to argue, or find, that the policy itself was wrong and that either generally, or in the specific circumstances, a ‘reasonable driver’ would have done something else.  An extreme example may make the point.   Assume that the stated policy is that when responding to an emergency every driver shall travel at not less than 100km/h.   An employee could comply with that policy but it wouldn’t stop them being charged when they ran someone over on a busy street.   The issue is the law, not the employer’s directives.  Now there is some relevant law there, an employee is required to obey the ‘reasonable’ directions of his or her employer and when deciding what a reasonable person in the given circumstances would do, the employer’s policy is clearly relevant.   But everyone one has to have the discretion to say ‘if I follow this policy, I’m going to kill someone, so I’m not going to do that’.   That doesn’t mean a policy that says ‘always stop at the red light’ is a poor policy, only that the assertion ‘as long as I have followed their policy I’m not at fault’ is wrong.

Could the driver or the employer ‘be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?’  It depends what you mean by ‘accountable’.

Will they be asked to ‘account’ for their actions and policy?  Clearly ‘yes’. The driver will have to explain what they did and if they relied upon a policy directive, the employer may be asked about – required to account for – the policy; why was it phrased that way? How was it intended to be applied? What training was provided? Etc.  That is being accountable or held to account.

Will the driver be liable for civil damages?  No.  Every registered vehicle, or vehicle that is not required to be registered is covered by a compulsory third party (CTP) insurance policy (Motor Vehicles (Third Party Insurance) Act 1942 (NSW)).  The CTP policy is a policy of indemnity, that is it covers 100% of the liability and the costs.  The driver has to pay nothing; the employer has to pay the annual premium.

CTP insurance only covers liability for injury or death caused to a person other than the driver at fault.  As for property damage there is likely to be, and if it’s a government operated emergency service there will be, a relevant insurance policy to pay out for property damage.  Given the driver was acting as an employee – doing their job even if not in compliance with a policy –  the employer and not the employee will be liable (Employees Liability Act 1991 (NSW) s 3; Insurance Contracts Act 1984 (Cth) s 66).

Will the driver be liable for any criminal offence?  Yes, criminal liability is personal and cannot be transferred.  If the driver commits a traffic offence that liability belongs to the driver.  An employer can also be criminally liable for aiding or encouraging a driver to commit an offence or for offences outside the traffic laws, such as offences under the Work Health and Safety Act 2011 (NSW) if their policy and training does not take reasonable steps to ensure a safe workplace.

The first part of the question was:

Could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred …

The answer is ‘absolutely’.   But that doesn’t address the policy, so now we can get to the actual point of the question.

Readers of this blog will be familiar with the oft quoted Australian Road Rules.  Rules 78, 79, 165 and 306 of the Road Rules 2014 (NSW) say, respectively:

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

(3) This rule applies to the driver despite any other rule of these Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

For the purposes of rule 79, ‘give way’ is defined in the Dictionary that forms part of the Rules to mean:

(a) if the driver … is stopped-remain stationary until it is safe to proceed, or

(b) in any other case-slow down and, if necessary, stop to avoid a collision…

165 Stopping in an emergency etc or to comply with another rule

It is a defence to the prosecution of a driver for an offence against a provision of this Part if:

(a) the driver stops at a particular place, or in a particular way, to avoid a collision, and the driver stops for no longer than is necessary to avoid the collision…

306 Exemption for drivers of emergency vehicles

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

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the rule should not apply, and

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

Let us take as given (ie without reference to the rules) that my correspondent is driving an emergency vehicle and that a driver is required, as a general rule, to stop at a red light and wait until the light turns green before proceeding and all drivers operate on that general assumption (ie if you have a green light you can go, if you have a red light you have to stop).

First, the general rule – if you have a green light you can go but if you have a red light you have to stop – does not apply to the driver of an emergency vehicle in the circumstances described in r 306.  Where r 306 applies the driver can proceed against the red light and should not get a traffic infringement notice (TIN) for that offence.  If he or she does get a TIN (eg due to an automated red light camera) they will have a defence to the allegation of criminal impropriety. (Despite popular belief or hope to the contrary, road traffic offences, including those dealt with by way of a TIN, are criminal offences).

But, the driver has to take reasonable care (r 306(a)(i)) and has to assume that other drivers, facing  green light, are likely to assume that they have clear passage.  That assumption cannot be justified as a matter of law, all drivers should know that not everyone obeys the traffic signals, and some people, like the drivers of emergency vehicles, have an exemption so all drivers should be on the lookout, even if they have a green light, for vehicles entering the intersection.  In Hine v O’Connor [1951] SASR 1, the Supreme Court of South Australia had to consider liability for an accident between a bus and a fire appliance where the fire appliance proceeded into an intersection contrary to a ‘stop sign’ (akin to a red light).  The court said (at 4-5 (Abbott J)):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … And, of course, O’Connor is presumed to know the law that fire-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs.” Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.

That obligation to ‘give way’ is reinforced by rules 78 and 79.  The driver approaching a green light must not move into the path of an emergency vehicle and must ‘slow down and, if necessary, stop to avoid a collision’ even if that means stopping at a green light and even if the general rule is that the driver facing the red light – in this case the driver of the emergency vehicle – would be expected to give way to the driver facing the green light.

But just because the driver of the emergency vehicle is not required to stop at a red light and wait for it to turn green, and just because the driver facing the green light is not to move into the path of the emergency vehicle and must give way to that vehicle, it does not mean that the driver of the emergency vehicle can just barrel into the intersection.  In another case from South Australia but this time finalised in the High Court of Australia (South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215) it was said (at p 220, (Latham CJ)):

[T]he exemption of ambulances [or any emergency vehicle] from the application of the section [that would have required the driver of the ambulance to give way], while it prevents any prosecution of the driver of an ambulance for failing to comply with the section, does not entitle an ambulance to drive ahead regardless of other traffic … The driver of an ambulance must drive upon the assumption that other people will observe the rules of the road; that they will accordingly look out to their right … and that they will expect to be given the right of way by vehicles on their left. Thus the fact that … [the section requiring drivers to give way to their right] … does not apply to ambulances does not relieve the defendant of liability for negligence if in all the circumstances there was a failure to exercise due care.

So too, the exemption from the need to give way at a red light will not relieve the driver of an emergency vehicle ‘of liability for negligence if in all the circumstances there was a failure to exercise due care’.

In yet another South Australian case Patterson v McGinlay [1991] SASC 2727 the court was faced with the very fact situation that I’m asked to comment on.  In this case a police vehicle entered the intersection against a red light with flashing lights and siren operating.    There was a collision and Cox J concluded:

Both drivers were at fault… the plaintiff-appellant failed to have sufficient regard for his own safety. Emergency vehicles are not an uncommon feature on metropolitan roads. If the plaintiff chose to drive with his radio on and his window only slightly open, so that his ability to hear a siren was necessarily impaired, he was under the greater obligation, as it seems to me, to be alert to perceive at the earliest opportunity the familiar flashing light. In fact, he failed to hear the police car’s siren at all and, at an uncommonly wide intersection, he did not see the car itself until the very last moment. The police driver, for his part, was entering a carriageway of the Port Road against the red light. He should have appreciated, and probably did, that his warning signals could not guarantee him a clear passage. His failure to see the plaintiff’s car before impact was negligence of no small order.

The other judges (Chief Justice King and Justice Olsson) agreed and liability was divided 50:50 that is both drivers were equally at fault.

So what?  I’ve already said that the driver will not be liable because of CTP insurance and the doctrine of vicarious liability.  That is correct but the insurers can and do still run the cases as they are only liable if the driver is found to have been negligent.   All of the drivers in the above cases were found to have been negligent to some degree even though they were not personally liable.    Also there are offences of negligent driving (and worse) so if the driver of an emergency vehicle is negligent to the requisite degree then he or she may face a criminal prosecution, ranging from a TIN for ‘negligent driving’ to, in extreme cases, an allegation of manslaughter.  Even if the driver is not liable for civil damages, this discussion is still important.

What’s a driver to do?  This is classic risk assessment where you weigh up the chance of something happening (a collision); how bad might it be (minor to fatal) and what can you do about it?  If you travel through an intersection at 100km/h the chance of a collision is very high, it will be bad and there’s lots you could do to avoid it – slow down or stop!   So a driver of an emergency vehicle must ensure that other drivers have observed the emergency vehicle and are in fact giving way.  Does that require stopping at every red light – well that depends upon the circumstances.

The driver’s employer, a PCBU for the purposes of the Work Health and Safety Act 2011 (NSW)  has to ‘ensure, so far as is reasonably practicable, the health and safety’ of workers (the employed driver) and other affected by the PCBU’s undertaking (that is other road users with whom the emergency vehicle might collide).  To do that a PCBU should probably have in place a policy.  That policy could say:

1. A driver must slow down and if necessary stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Or it could say:

2. A driver must stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Neither is obviously unreasonable; but my correspondent says there is a risk with option 2 in that having come to a stop, other drivers who have ‘given way’ get confused so it’s not clear who is going to go.   What’s to be done about that risk?  First let us recall that none of this takes very long and the other driver has an obligation not to move into the path of the emergency vehicle (Road Rules 2014 (NSW) r 78) and must give way, that is ‘remain stationary until it is safe to proceed’ and in any event, ‘avoid a collision’ (r 79).

What if the driver of the emergency vehicle slows down, but doesn’t stop, and there is an accident?  Clearly the road was not clear and the driver was, arguably, not taking reasonable care.   What if the driver does stop, there is some hesitation and there is a collision?  If the collision is with other vehicles, but not the emergency vehicle, the driver of the emergency vehicle is not at fault – the other drivers all have an obligation to avoid each other and to give way to emergency vehicles.  If there is a collision with the emergency vehicle the fact that the driver stopped first is stronger evidence of them taking care (but not enough care if they still had a collision).

Conclusion

Let me return to the question:

My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

So the facts suggested are, car A stops at a green light to give way to my correspondent.  My correspondent has also stopped.  Both vehicles begin to move off but the driver of car A, seeing that my correspondent in the emergency vehicle is intending to proceed again comes to a stop and car B runs up the back of car A.   Could my correspondent or the emergency service be held ‘at fault’?  When put that way the answer is a clear ‘no’.    The decision to stop at the red light by my correspondent is both reasonable and required by law.  The action of car A is to give way. If the drive of car A begins to move off that driver is arguably failing to comply with rules 78 and 79. The driver of car B also has an obligation to give way to the emergency vehicle as well as an obligation not to run into any other car that may suddenly stop because of an engine failure, or a child or an animal on the road or for any one of a 100 reasons.  To think that car A is suddenly going to drive off, and to not pay attention to the driver of the emergency vehicle which is clearly in the intersection, would be entirely the fault of the driver of car B.    The reason my correspondent is not at fault is not because he or she complied with the policy, but because the accident is not their fault.  Other drivers have to drive to the conditions including the presence of the emergency service vehicle.

If my correspondent comes to a stop as does the driver of car A.  Both begin to drive off but car A collides with the emergency vehicle, then the driver of car A has failed to comply with the road rules (rules 78 and 79) and is clearly driving without due attention as they have seen the emergency vehicle, they know it’s there and they are required to wait and allow it to proceed.  Presumably if both vehicles have stopped and both begin to move off they can see each other and are going slowly enough that they can stop again.  In the event of a collision issues of fault may come down to who hit who where or who had the last chance to avoid the collision?

A paramedic employed by the Ambulance Service of NSW has

… just undertaken some further in house training about the use of sedation and restraint with the NSW ambulance and an issue about authority to sedate and restrain came up.  Section 20 of the NSW Mental Health Act gives ambulance officers authority to detain a person who is suffering from a mental illness and / or who is a mentally disordered person.

However we were told that we did not need to invoke Section 20 or have the patient covered by some other section such as Section 22 of the act from police or Section 19 from a medical officer, as Section 81 of the Act gives authority to persons such as an ambulance officer to sedate and / or restrain a person for the purpose of taking them to or from a mental health facility.

My reading of Section 81 is that it only applies to a “person who is authorised by the Act to be taken to and from a mental health facility”. In my understanding for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force.

I checked the Mental Health Regulations and can see nothing in them to clarify the authority. Either they are voluntary and so should probably not need sedation or some other detention order needs to be in place.  I raised this only to be told Section 81(3) gives us authority and so no other section of the act is required.

Can we indeed sedate and restrain someone who is suffering from a mental illness or mentally disorder as defined by the act purely under Section 81 or does there need to be in force a detention order under some other Section of the mental Health Act such as Section 19, 20 or 22?

The Mental Health Act 2007 (NSW) s 81 says, relevantly:

(1)  The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility …

(b)  an ambulance officer…

(2)  A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a)  use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b)  restrain the person in any way that is reasonably necessary in the circumstances.

(3)  A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

Section 81 gives an ambulance officer the power to transport a person to hospital and to use sedation but only if the transport is ‘authorised by this Act’.  My correspondent is correct, s 81 does not give an ambulance officer the power to authorise a person to be taken; that is ‘for a person to be authorised to be taken to and from a mental health facility some other section of the act must be in force’.

A number of people may authorise the detention of a person for examination and treatment.  Section 18 says:

A person may be detained in a declared mental health facility in the following circumstances:

(a)  on a mental health certificate given by a medical practitioner or accredited person (see section 19),

(b)  after being brought to the facility by an ambulance officer (see section 20),

(c)  after being apprehended by a police officer (see section 22),

(d)  after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23),

(e)  on the order of a Magistrate or bail officer (see section 24),

(f)  after a transfer from another health facility (see section 25),

(g)  on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).

Without going through those sections it can be seen that if a medical practitioner, an accredited person, a police officer, a Magistrate or a bail officer who complies with the relevant subsections authorises a person’s detention, then an ambulance officer can rely on s 81 to transport the person and, if necessary, sedate them.

There is also detention by an ambulance officer.  Section 20 says:

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

It follows that if an ambulance officer (that is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (s 4)) ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then that is authority for the person to be ‘taken … to … the facility …’ That would then allow the ambulance officer, relying on s 81, to use force and, if necessary, sedation.

I’m not sure what impact that has.  There is no formal invocation of s 20 required.  If a paramedic is treating a person and forms the beliefs required in s 20 then they are authorised by s 81 to treat and transport the person to a mental health facility.  If they don’t have the necessary belief then presumably there is no need to transport a person to a mental health facility.

Conclusion

My correspondent is correct.  Section 81 says what an ambulance officer is authorised to do when transporting a person where the transport is authorised by another section of the Act.  In the context of this discussion, the relevant section is s 20 and if the ambulance officer ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ then that is sufficient authority.

This question comes from a NSW volunteer who says:

I am a volunteer member of a State Emergency Service. My query relates to the driving of overloaded vehicles. A vehicle I am required to drive has a GVM of 4495 kgs. Without driver or passengers it weighs 4315kgs. Throw in a driver, passengers and gear and the weight of the vehicle will exceed its GVM.

I hold a heavy vehicle driver’s licence so I presume in driving an overweight vehicle I am guilty of some type of offence, and it would not be helpful were I to be involved in a serious collision, becoming an aggravating factor especially if someone were killed or injured.

My question specifically relates to a car licence holder driving said vehicle. Which offences would they be committing?

In New South Wales the Road Transport Act 2013 (NSW) s 4 defines a “heavy vehicle” as a ‘motor vehicle or trailer that has a GVM of more than 4.5 tonnes’ (see also Heavy Vehicle National Law (NSW) s 6).   The GVM is the ‘gross vehicle mass’ and is:

… the maximum loaded mass of the vehicle:

(a) as specified by the vehicle’s manufacturer, or

(b) as specified by the Authority if:

(i) the manufacturer has not specified a maximum loaded mass, or

(ii) the manufacturer cannot be identified, or

(iii) the vehicle has been modified to the extent that the manufacturer’s specification is no longer appropriate.

A “light vehicle” is any vehicle other than a heavy vehicle.

Heavy vehicles are governed by the Heavy Vehicle National Law.  Section 96(1) says:

A person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not, comply with the mass requirements applying to the vehicle.

What are the ‘mass requirements’ is more complex than just the GVM – see Heavy Vehicle (Mass, Dimension and Loading) National Regulation (NSW) Sch 1.  I won’t try to understand the technical issues so let me, for the sake of the argument, assume that GVM is the relevant mass requirement.

The critical issue is that s 96(1) doesn’t make it an offence because the person holds a particular licence, anyone who drives a heavy vehicle that does not comply with the mass requirements commits an offence.

According to my correspondent, however, the vehicle is required to drive has a GVM of 4495kgs or 4.495 tonnes.  That’s close to, but not more than, 4.5 tonnes so the vehicle is a ‘light vehicle’.

The Road Transport (General) Regulation 2013 (NSW) r 50C says:

A person must not drive, or cause to be driven, along a road a light vehicle or light combination that contravenes any of the dimension, mass or load restraint requirements imposed by this Part otherwise than in accordance with a permit issued under clause 50N.

A motor lorry is:

… any motor vehicle (whether or not in combination with any trailer) that is constructed principally for the conveyance of goods or merchandise or for the conveyance of any kind of materials used in any trade, business or industry, or for use in any work other than the conveyance of persons, but does not include a motor bike or a tractor. (Road Transport (General) Regulation 2013 (NSW) r 3).

That would include an SES rescue truck.  Regulation 50F says

A person must not drive a motor lorry on a road if the total mass of the motor lorry exceeds the lorry’s mass limit.

The mass limit is the GVM (r 50H).

So if the vehicle exceeds its GVM the driver commits an offence.  Again it doesn’t matter what licence they hold; that is it does not matter, as my correspondent suggests it might, whether or not the driver holds a heavy vehicle driver’s licence.  Anyone who drives a vehicle that exceeds the ‘mass requirements’ commits an offence.

It should be noted that there can be exemptions given during an emergency (r 50Y).  That has to be a particular exemption given in response to need in a particular emergency.  It will not apply to the day to day operations of the SES or other emergency services

My correspondent’s ‘question specifically relates to a car licence holder driving said vehicle. Which offences would they be committing?’  The answer is that they would be committing an offence contrary to the Road Transport (General) Regulation 2013 (NSW) r 50C which carries a maximum of penalty of 30 penalty units or $3300.

My correspondent also noted that driving an overweight vehicle ‘would not be helpful were I to be involved in a serious collision, becoming an aggravating factor especially if someone were killed or injured’.  That is indeed true – see Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009) and the comments that were made in response to that post.

Finally, we most readers would now be aware, for the purposes of the Work Health and Safety Act 2011 (NSW) the term worker includes a ‘volunteer’ (s 7).  A Person Conducting a Business or Undertaking (which would include the SES) ‘must ensure, so far as is reasonably practicable, the health and safety of’ its workers (s 19).  A worker (including a volunteer, s 34) must also ‘take reasonable care for his or her own health and safety’ and the safety of others (s 28).   If the SES management knowingly permit or encourage or require a member to drive an overweight vehicle, and if it can be shown that this creates a danger to the workers or others, then that may be an offence under the WHS Act.  Equally a member who drives a vehicle knowing that it is overweight, again if it can be shown that this creates a danger, may also be guilty of an offence under the WHS Act.

This question is relevant because of a unique legal position in Victoria.  In that state the emergency service can require people to evacuation a danger area but not, generally speaking, if they have a ‘pecuniary’ interest in the property.  Because of this a member of the Metropolitan Fire Brigade says:

My colleagues and I have been debating the impact of ‘pecuniary interest’ in our ability to remove persons from burning premises. Under section 58 of the MFB Act 1958, we can request to have a person removed from burning premises, however if they have a pecuniary interest, we cannot.

Our debate centres on whether the pecuniary interest component affects the whole Act, or just section 58. For example, under section 61, we can request Police to assist in the removal of persons who are by their presence interfering or otherwise with the operations of the unit. Is this affected if the person interfering has a pecuniary interest in the property they are on?

The issue is this – if a homeowner refuses to leave their house while it is on fire, and we send crews in, those crews are arguably dealing with an ‘interference’ – they have to take into account the person when they utilise hoses, it also affects which internal firefighting tactics they may use. If they have a pecuniary interest, can they still stay there, interfering with the operations? If so, at what point can they be ordered to be removed? If they had a pecuniary interest and decided to cut fire hoses to stop the fire being put out (to destroy their property for example), is this OK? Should firefighters just move outside and stop the fire spreading to neighbouring houses?

The second component of the question is also related. If the scene of the fire is deemed to be a crime scene by the initial firefighters on scene, can they request/order someone with a pecuniary interest to not enter the building (as they may be criminally involved?).

Elsie Loh writes:

A pecuniary interest is a property right that can include goods and chattels. It is based on a principle that dates back to the Middle Ages which asserts that a person who is not a felon or is unlikely to act unlawfully can freely enjoy her or his property rights unencumbered by the state. It is on this basis that an order to evacuate could historically be lawfully refused. (Elsie Loh, ‘Evacuation powers of emergency workers and emergency-service organisations in Australia’ (2007) 22(4) Australian Journal of Emergency Management 3-7, 4).

I will not be able to provide a definitive answer to this question, as this explanation will show.  Coming up with a prediction – an opinion – will demonstrate how lawyers develop arguments but we don’t know the answer until the issue is tested.

I’ll start with other provisions that deal with the evacuation of people with a ‘pecuniary interest’.  The following provisions are relevant:

Country Fire Authority Act 1958 (Vic) ss 30 and 31:

30. Powers of officers at fires

(1) … the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

(g) If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire, the Chief Officer may—

(i)  order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route; and

(ii) in the event that the person fails or refuses to withdraw—remove the person or direct a member of a fire brigade or a police officer present at the fire to remove the person;

31. Police to assist Chief Officer etc.

(3) Any police officer may of his own motion or on the direction of the Chief Officer or any officer exercising the powers of the Chief Officer or any officer in charge of a brigade— …

(b) if a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire—

(i)  order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route; and

(ii) in the event that the person fails or refuses to withdraw—remove the person.

(4) Nothing in this section or section 30 shall authorize the removal from any land building or premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

Emergency Management Act 1986 (Vic) ss 24, 36A and 36B

24. Powers and duties of Minister

(1) In a state of disaster, the Minister is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.

(2)  In addition to and without in any way limiting the generality of subsection (1), in a state of disaster the Minister may— …

(e)  compel the evacuation of any or all persons from the disaster area or any part of it…

(7) The power of the Minister under subsection (2)(e) may not be exercised so as to compel the evacuation of a person from any land or building if the person has a pecuniary interest in the land or building or in any goods or valuables on the land or in the building.

36A. Declaration of emergency area

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

(a) public safety; or

(b) security of evacuated premises; or

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

that police officer may declare the area to be an emergency area.

36B. Powers in respect of emergency area

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

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

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

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

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

Metropolitan Fire Brigades Act 1958 (Vic) ss 58 and 61

58. Removal of persons from burning premises

(1) A member of a unit or a police officer may order any person who is not a member of a unit or who is not acting under the control or direction of a member of a unit to withdraw from any premises then burning or which are threatened by fire.

(1A) A person must comply immediately with an order given to the person under subsection (1).

(2) If such person neglects or refuses to so withdraw he may be forcibly removed by order of any such member.

(3) Nothing herein contained shall authorize the removal from any such premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

61. Police to aid Units

(2) All police officers are authorised and required to aid units in the execution of their duties.

(3) For the purpose of subsection (2), police officers may— …

(b) of their own volition or at the request of the senior member of the operational staff at the scene, remove any persons who interfere by their presence or otherwise with the operations of the unit…

Answering my correspondent’s question requires me to interpret the Metropolitan Fire Brigades Act 1958 (Vic).   The way to start is just to read the words.   Section 58 says that a member of a fire unit can require a person to withdraw but not if they have a pecuniary interest.  Section 61 says that the police can ‘remove’ any person who is interfering with the operations of a unit and it makes no reference to pecuniary interest.  Prima facie (or ‘on the face of it’) the pecuniary interest issue is not relevant to a decision under s 61.  But, that would seem strange given that Victoria does have this limit on other evacuations.  And the Parliament knows about it as they have dealt with it in other sections.

When it comes to fires outside Melbourne, the Country Fire Authority and the police can order that a person who ‘is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades’ to ‘withdraw’ but not if the person has a pecuniary interest.  There the pecuniary interest test is relevant to decisions by both the CFA and the police (see s 31(4), above).  The inference being that if it was intended that a person’s ‘pecuniary interest’ was to limit action by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61, then the section would say so, just as the Country Fires Act does.

On the other hand, under the Emergency Management Act 1986 (Vic) the Minister, during a declared state of disaster can order an evacuation but again, not of anyone with a pecuniary interest.  Police, on the other hand, can declare an area an emergency area and require people to evacuate or leave the area, or allow them to stay under certain conditions.  Their power extends to people with a pecuniary interest and we know that because ss 36B(2) and (3), above, expressly say that this is the case.  The inference being that if it was intended that a person’s ‘pecuniary interest’ was not to limit action by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61, then the section would say so, just as the Emergency Management Act does.

Perhaps there’s a difference.  In the case of a rural or bushfire, the CFA has limited resources that will be spread over a wide area.  In some cases they can’t hope to extinguish the fire but they may act to protect life and property.   The CFA are, however, unlikely to round up livestock, rescue the horses or move the expensive equipment all of which is vital to the farm’s ongoing prosperity.  It may make sense to say that one can’t order the farmer to evacuate when he or she is focusing on protecting assets that may be outside the CFA’s scope.

A structural fire perhaps is different.  Assume a fire in a block of 4 units. The fire starts in unit 1.  A person who refuses to leave unit 2 may be not much of a problem and they may want to be passing out their assets and collecting the photo albums.  They may just want to stay even when the MFB warns them that it’s going to be hot, smoky and dangerous.  In Stuart v Kirkland-Veenstra [2009] HCA 15, Victoria police did not have a duty to prevent Mr Veenstra from taking his own life.  Justices Gummow, Hayne and Heydon said (at [88]):

Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. As Dixon J said in Smith v Leurs, “[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third”. It is, therefore, “exceptional to find in the law a duty to control another’s actions to prevent harm to strangers”. And there is no general duty to rescue.

And even if there is a duty to control ‘another man to prevent his doing damage to a third’ in this case ‘… it was not the officers [or any third person] who put Mr Veenstra in harm’s way. They came upon the scene which Mr Veenstra had created. Were they to intervene to prevent his conduct?’ ([116]). The answer was ‘no’ and that answer might also be expected where the risk to a person is their decision not to leave a burning building.

But as I’ve said before on this blog, a fire brigade’s duty is not really to the person whose property is on fire but the broader community (see Liability for fire – a review of earlier posts (January 8, 2016)).  It’s one thing for a farmer to move his or her sheep even if that gets in the way of the CFA.  Ultimately what that’s likely to do is affect the landowner but will it really impact upon their neighbour – certainly not in a big fire where there is no possibility of actually extinguishing it.  An urban structural fire is different.  If the resident of flat 2 refuses to evacuate and that makes it harder for the firefighters, that impacts upon all the other residents.  If it’s a fire in a house then that too, in urban Melbourne, also poses a risk to the neighbours.  And if the person has ‘decided to cut fire hoses to stop the fire being put out’ that can’t be OK as they risk not just themselves but others.  If they do cut hoses or if they have started the fire, however, police could arrest them for various offences under the criminal law (see Crimes Act 1958 (Vic) s 197 ‘Destroying or damaging property’) and once arrested the person can be removed and the provisions of the MFB Act would not be relevant.

We’ve seen in the legislation that sometimes a person with a pecuniary interest can be evacuated.

• Under the CFA Act neither the CFA or the Police and require a person with a pecuniary interest to evacuate.
• Under the Emergency Management Act 1986, the Minister can’t but the police can order a person with a pecuniary interest to evacuate.
• Under the MFB Act the MFB can’t but perhaps the police can?

Is this a trend? That is, with the exception of the CFA Act, is it that the power to compel an evacuation of a person with a pecuniary interest lies with the police?  As a lawyer and academic it’s appropriate to ask ‘what to other commentators say or think?’  To return to Elsie Loh’s paper she says (at pp 4-5):

Forced evacuations most often involve interference to the evacuee’s body by the rescuer which, if unlawful, is effectively an assault. As assault is a serious matter, courts may be reluctant to find an implied power to use force …

And it may be that the Parliament is more willing to allow police to exercise that power (given that the use of force is a fundamental part of policing duties).   So it may make sense to infer that the greater power to require a person with a pecuniary interest, and who may be less willing to go, should be limited to police.  If that’s correct then certainly concluding that s 61 is not limited by a person’s pecuniary interest would be consistent with the policy in the EM Act.

Assume for the sake of the argument that s 61 is limited and police can’t compel a person with a pecuniary interest to leave even though they are ‘by their presence or otherwise’ interfering ‘with the operations of the unit’.  So what?  Under the EM Act 1986 a police officer can, for ‘the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity … declare the area to be an emergency area’ and can them require everyone to leave, pecuniary interest or not (ss 36A and 36B).

No-one likes pretence so coming to the conclusion that one section is limited but the same result can be achieved by another is not helpful.

Again to look to another commentator for support, Loh says (p 4):

Members of the Metropolitan Fire Brigade and police officers within a metropolitan area may only forcibly remove a person if they do not have a pecuniary interest in the land, building or goods in it. Police officers may use force to remove a person regardless of pecuniary interest (members of MFB may ‘cause’ such a person to be removed) if they are interfering with brigade operations within a metropolitan area and where there has been an ‘alarm of fire’.

Having looked at the legislation I agree with her.

It is my opinion that the Metropolitan Fire Brigades Act 1958 (Vic) s 61 is not limited by the ‘pecuniary interest’ exception that applies to s 58.    A member of the MFB can require anyone, other than a person with a pecuniary interest, ‘to withdraw from any premises then burning or which are threatened by fire’ and they can do so for any reason, ie so they don’t get in the way of firefighting operations or for the person’s own good.

A person with a pecuniary interest can only be compelled to evacuate by police (either on their own ‘volition’ or at the request of the MFB) and only because their presence is interfering ‘with the operations of the unit…’, not because it’s a good idea and in the person’s best interests.  It’s up to them to determine what their best interests are.

The second component of the question is also related. If the scene of the fire is deemed to be a crime scene by the initial firefighters on scene, can they request/order someone with a pecuniary interest to not enter the building (as they may be criminally involved?).

There is no definition of a ‘crime scene’ in Victorian legislation (compare this to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) part 7 (ss 88-98)).

Under the Metropolitan Fire Brigades Act 1958 (Vic) s 71(1) ‘The Board or the Chief Officer may cause any place in the metropolitan district where any fire occurred to be searched, and may remove and keep possession of any materials which may tend to prove the cause or origin of the fire.’  Further (s 71(5)) says:

If in the opinion of the Board or the Chief Officer there are suspicious circumstances in relation to the cause or origin of any fire in the metropolitan district, the Board or the Chief Officer—

(a) may restrict access to the place where the fire occurred until a Coroner with jurisdiction to investigate the fire under the Coroners Act 2008 orders otherwise or until an inquest into the fire is held under that Act, whichever first occurs;

(b) may cause to be erected at the entrance or boundary of the place a notice in the prescribed form of the restriction; and

(c) may request a coroner to investigate the fire.

Apart from the fire brigade:

(1) A coroner or the Chief Commissioner of Police may take reasonable steps to restrict access  to—

(a) the place where a fire occurred; or

(b) a place reasonably connected to the place where a fire occurred.

(2) The coroner or the Chief Commissioner of Police may cause a notice in the prescribed form stating that access is restricted to a place to be put up at that place or as near as possible to that place.

(3) A person must not, without lawful excuse, enter or interfere with any place to which access is restricted under this section. (Coroners Act 2008 (Vic) s 38).

The pecuniary interest exemption doesn’t apply to either of these provisions. These provisions are clearly aimed at the time after the fire but they could apply to a person with a pecuniary interest who was outside and was now seeking to return to the scene of the going fire.

Fundamentally firefighters are not law enforcement agents but like everyone they do have the power to make an arrest (Crimes Act 1958 (Vic) s 458).  Any person may arrest someone they find:

… committing any offence … where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

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

(ii)     to preserve public order;

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

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

Fire fighters could chose to exercise their right to make a citizen’s arrest but I suggest you would want to be very sure of your suspicions and it may not be the best use of fire brigade resources if the building is actually on fire.

If the MFB is at the scene of a fire and have suspicions, even at that point, as to cause and origin of the fire and the role that someone with a pecuniary interest in the building may have played in starting the fire, that should be reported to police.  It will be up to police to determine what they can do, exercising their police powers, rather than have fire fighters take police action.

My conclusions are:

1. The issue of a person’s ‘pecuniary interest’ is not relevant to an action taken by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61.
2. Fire fighters have no authority to require a person to ‘withdraw’ under s 58 because the fire fighters suspect the person of being criminally involved in the fire. They do have a power to restrict the person’s access to the fire scene Metropolitan Fire Brigades Act 1958 (Vic) s 71.  If the person is actually on the premises fire fighters could make a citizen’s arrest and then deliver the person to police but the better option would be to report their suspicions to police and leave the criminal law enforcement to them.

I have previously written about members of the emergency services taking photos when responding; see:

• Taking photos, recording sound (February 23, 2015 );
• Taking photos on the fireground in South Australia (January 9, 2015);
• Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013);
• US legislation on taking photos at emergency scenes (August 24, 2012);
• The use of photos taken at accident and emergency scenes (August 6, 2011).

Today’s question relates to a bystander taking photos and comes from a student paramedic in Queensland who says that:

… after reading of an incident in the United States, I became curious to what right of privacy a patient may expect in a public place. In the United States, a firefighter confronted a photojournalist after he continued to film a patient being moved from a building to a waiting ambulance despite paramedics requesting he stop.

My question is can bystanders be prevented from filming if a patient or paramedic requests it? And could it be considered some kind of intrusion on the patient or obstruction to the paramedic to continue filming?

It’s hard to draw lessons from the US as they have a Constitutional Bill of Rights which includes the first amendment that ensures freedom of the press and freedom of speech.  I’m no US constitutional lawyer so I won’t try to explain the nuances of that provision but I do understand it makes it much harder to control the right of citizens to take and publish photos.

In Australia there is no first amendment, but equally there is no right to privacy.  As I’ve noted in the earlier posts there is ‘no property in a spectacle’ (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479).  What happens ‘in public’ is public and can be photographed.

Equally filming is not any unlawful intrusion nor is it an obstruction – how would filming actually interfere with a paramedics’s work?  If the photographer was actually getting in the way, it’s the getting in the way not the filming that is a hindrance.

Readers may recall an interesting piece of ‘citizen journalism’ following the 2013 Gay and Lesbian Mardi Gras in Sydney when a police officer was filmed allegedly assaulting a mardi-gras participant and the video went ‘viral’ on social media (you can see the video at https://www.youtube.com/watch?v=wxtFtVfAeeE).  You will also see at that video police asking people to stop filming and those people refusing to do so on the basis that there is no law against filming.  I make no comment on the incident but do note that following the event:

Deputy Commissioner of the New South Wales Police Service Mark Murdoch told the media today at a press conference that the behaviour of police who asked citizens to stop filming that they demonstrated naivety in their comments.

“We support the right of the community to film anyone in a public space and we do so ourselves. Our police need to be mature enough to know that everyone has a mobile phone with a camera facility and they will use that. We thought at the senior level it had been communicated loud and clear but we have more work to be done there,” he said.

(See Luke Hopwell, ‘NSW Police Slam ‘Trial By Social Media’ As Mardi Gras Brutality Video Goes Viral [Updated]’ Gizmodo (Online), 6 March 2013; Bellinda Kontominas, ‘Police ‘naive’ to tell public not to film arrest’ Sydney Morning Herald (Online) 6 March 2013).

The Police Media Policy (2013) says (at p 32):

Camera footage taken from a public place, or a privately owned place with the consent of the owner/occupier, does not contravene the Surveillance Devices Act 2007. The footage can be taken in these circumstances even if the crime scene or activity itself is not in a public place.

The same is true for paramedics.  In today’s world, everyone has a camera phone.  The work of the emergency services will always attract interest and people are encouraged to take footage to send to TV stations or even to the emergency services themselves.  It follows that everyone who turns out in an ambulance, fire appliance, rescue truck or police vehicle has to assume that everything they are doing can, and will be, filmed.

Even if filming was unlawful, it’s not a paramedic’s job to enforce the law.  To quote again from the Police Media Policy (2013; p 32):

It is NOT the job of police officers at crime scenes to decide on whether legally obtained media footage or photographs are insensitive or in poor taste. What the media may publish is governed by various broadcasting laws and codes of conduct.

If it’s not a police officer’s job it’s certainly not a paramedic’s job (see also Lifesavers as law enforcers? (July 6, 2014)).   In my paper ‘Media Access to Emergencies – Command, Control or Co-ordination?’ (2010) 25(1) Australian Journal of Emergency Management 13-17, I said (at p 15):

The emergency services are not, generally, charged with preserving all the rights of people affected by an emergency. People may well have privacy rights that could be infringed by an intrusive media presence and may have legal claims to compensation (Privacy and Personal Information Protection Act 1998 (NSW); Privacy Act 1988 (Cth); Giller v Procopets [2008]) but that does not mean the emergency service charged with responding to the fire, flood or storm is also required, authorised or competent to protect those rights.

There are rules with which media agencies must comply when dealing with the broadcasting of information that is unfair, infringes privacy (ACMA 2004, 32; ABC 2007, 4, Australian Press Council 2006, [3]; Commercial Radio 2004, [2]; MEAA, [8] and [9]) or may prejudice a criminal prosecution (Breit 2007, 160) but the fire and emergency services do not have a specific authority, capacity or duty to monitor and enforce these rules.

Whilst that was directed at the ‘fire and emergency services’ it is equally applicable to paramedics.  The conclusion was:

If there are restrictions on media access and publication they are imposed by the law governing the media, rather than emergency [and ambulance] services, and it is up to the media enforcement agencies, such as the Australian Communications and Media Authority, and in cases where criminal prosecutions are involved, the police, to enforce.

Conclusion

No, bystanders cannot be prevented from filming if a patient or paramedic requests it provided they are filming in or from a public space or on private land with the consent of the occupier.

I have two questions that are joined for you.

Firstly, If you follow the link you will come to the HSU membership benefits page where it states a number of reasons why the union provides professional indemnity insurance:

• Members can be sued as individuals.
• Employers may not be able to indemnify their employees due to insufficient insurance arrangements or impending insolvency.
• Employers may seek to recover financial losses when members are deemed to have acted outside the scope of their normal duties or authorities.
• Members can be sued individually for Good Samaritan acts.

https://www.hsu.asn.au/indemnity-insurance/why-has-insurance-been-provided-for-members/

Considering HSU is a union for ‘If you work in NSW or ACT in public health, private health, aged care, some disability services or in the NSW Ambulance Service’ is the rationale/claims justified? In specific reference to paramedics in NSW Ambulance:

• Surely no none would sue an individual paramedic, rather sue NSW Health, under the big pocket theory?
• I cannot imagine NSW Ambulance, being a arm of NSW Health, would not ever have insufficient insurance arrangements or an impending insolvency?
• Considering that an employee would have to be acting way outside the scope and nature of their employment (off on a frolic) it is unlikely that point three would occur?
• Based on your previous posts, I cannot see a paramedic being sued for Good Samaritan acts?

Unless I am way of the mark I cannot see this member benefit being required for most paramedics who work for NSW Ambulance? That is not to say that these benefits may be useful and required for members who work in ‘…public health, private health, aged care, or disability services’.

Secondly, Once paramedics (thinking positively) gain national registration under AHPRA it is likely that we will have similar registration standards to nurses and other health care professionals. One of those standards is currently that a nurse must have professional indemnity insurance arrangements. I am lead to believe that nurses who work in public hospitals for NSW Health do not normally gain their own insurance, instead meet this criteria because of the vicarious liability of NSW Health.

If this is correct, do you anticipate paramedics working for a statutory ambulance service requiring private indemnity insurance, i.e. if so would this HSU insurance suffice? Or should being in genuine employment be sufficient?

Limiting this discussion to paramedics employed by NSW ambulance (but see, for a related discussion, see Insurance for first aiders (August 13, 2014)).

Let me get straight to the questions, and answers.

Surely no none would sue an individual paramedic, rather sue NSW Health, under the big pocket theory?

Quite right, no-one would sue the individual paramedic.  Even if they did I would expect the state would quickly assert that they are liable for the actions of their employee (see West & Anor v State of New South Wales & Anor [2007] ACTSC 43; New South Wales v Fahy [2007] HCA 20; Gardner v Northern Territory [2004] NTCA 14).

I cannot imagine NSW Ambulance, being a arm of NSW Health, would not ever have insufficient insurance arrangements or an impending insolvency? 

Again quite right.  NSW Ambulance is part of NSW Health  and part of the Crown in Right of NSW (Health Services Act 1997 (NSW) s 115; Government Sector Employment Act 2013 (NSW)).  They are insured by the NSW Treasury Managed Fund (NSW Self Insurance Corporation Act 2004 (NSW)) and if the managed fund doesn’t have the resources to pay (and it does) there is the state’s consolidated revenue that can be called upon.  Insolvency of the employer is not an issue.

Considering that an employee would have to be acting way outside the scope and nature of their employment (off on a frolic) it is unlikely that point three would occur? 

I agree, and if they were that far outside the scope of their employment and professional practice, the HSU insurance policy would not apply either.  Just as the employer won’t be liable for say sexual assault of the patient, neither would the HSU policy.

Based on your previous posts, I cannot see a paramedic being sued for Good Samaritan acts? 

I agree.  If they’re at work they are not ‘good Samaritans’ but their employer is vicariously liable.  If they are not at work they will be protected by the Good Samaritan provisions of the Civil Liability Act 2002 (NSW) and in any event, the chances of getting sued are so close to zero as to make insurance unnecessary (see, again, see Insurance for first aiders (August 13, 2014)).

As for ‘Employers may seek to recover financial losses when members are deemed to have acted outside the scope of their normal duties or authorities’.   If the are so far outside their employment to allow the employer to avoid vicarious liability, then the employer wont be liable so wont suffer those losses.  Where an employer is liable, he, she or it cannot seek to recover losses from an employer (Employees Liability Act 1991 (NSW) s 3)).

With respect to professional registration and insurance that remains to be seen.  Under the Health Practitioner Regulation National Law, cl 129 ‘A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner’s practice of the profession’.   It is likely that practitioners acting solely as employees, particularly employees of state ambulance service, will be sufficiently covered by the employer’s insurance arrangements but that of course remains to be seen.  Whether the HSU policy would be sufficient for those wanting private insurance or working outside the public sector that would depend on the terms of the policy and the requirements of the Paramedics Board, if and when it comes into existence.

This question comes from Western Australia.

Today It was brought to my attention that our local government has been breaching section 38 subsection 2E of the Bushfires Act 1954 by not issuing a “certificate of appointment” to their fire control officers.

38. Local government may appoint bush fire control officer  …

(2E) A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government or, if he is appointed by the FES Commissioner, by the FES Commissioner.

My question to you is:

1. Can local governments be held accountable for breaches like this, if so by who?
2. If there has never been an appropriately appointed FCO what position does this place the local government in, considering every order and permit issued could be considered illegal?
3. is this an error that can be just “swept under the carpet”?
4. And the big one is this an offence against section 177 of the criminal code?

Disobeying statute law 

Any person who, without lawful excuse, the proof of which lies on him, does any act which he is, by the provisions of any public statute in force in Western Australia, forbidden to do or omits to do any act which he is, by the provisions of any such statute, required to do, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The offender is liable to imprisonment for one year.

We need to look at more detail at s 38.  Sections 38(1) to (2E) say:

 (1)      A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers under and for the purposes of this Act, …

(2A)   The local government shall cause notice of an appointment made under the provisions of subsection (1) to be published at least once in a newspaper circulating in its district.

(2C)    The local government shall fill any vacancy occurring in the office of Chief Bush Fire Control Officer or Deputy Chief Bush Fire Control Officer within one month after the vacancy occurs and if the local government fails or neglects to do so within that time, the FES Commissioner may by notice in writing require the local government to appoint a person to the vacant office within one month after service on it of such notice.

(2D)   Where a local government that has been served with a notice pursuant to subsection (2C) fails or neglects to comply with the requirements of that notice, the FES Commissioner may appoint a person who is not employed in the Department to the vacant office.

(2E)    A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government or, if he is appointed by the FES Commissioner, by the FES Commissioner.

The appointment of a fire control officer is made pursuant to s 38(1).  The validity of the person’s appointment does not depend on the issue of a ‘certificate of appointment’.   What is the value of a certificate issued under s 38(2E)?  It is a shortcut for proof. The only other time the certificate gets mentioned is in s 65 relating to proof of certain matters.  Section 65(2) says:

The production of — …

(c) a copy purporting to be a true copy of the certificate of appointment or designation of a bush fire control officer certified as such under the hand of the chief executive officer of a local government or the FES Commissioner…

is evidence until the contrary is proved of the …due appointment or designation of the bush fire control officer… as the case may be, and of all preliminary steps necessary to give full force and effect to the same.

There are various offences set out in the Bushfires Act, for example section 57 provides that

A person who obstructs, hinders, resists or in any way opposes … a bush fire control officer appointed or designated under this Act, …in the performance or doing of anything which he is empowered or required to do by this Act is guilty of an offence.

If someone were to be prosecuted for that offence it would be necessary to prove that the person who was obstructed, hindered, resisted or opposed was indeed a bush fire control officer.  The certificate, issued under s 38(2E), tendered into evidence would, by virtue of s 65(2) be proof of that person’s appointment.  Without that certificate it may be necessary to produce the council’s records of their appointment and perhaps call the council’s executive officer to give evidence as to their appointment.  There are no other provisions where the certificate is relevant and it won’t affect the validity of their appointment.

Let me know turn to the questions asked:

1. Can local governments be held accountable for breaches like this, if so by who?

I’m not sure what ‘accountability’ would look like in this case.  The Local Government is ‘accountable’ so I suppose the Minister or the FES Commissioner could ask the local government to explain why they hadn’t issued a certificate and to get on and do it.  In that case they are ‘accountable’, but certainly not ‘liable’ in any way (subject to the discussion on s 177 of the Criminal Code, below).

2. If there has never been an appropriately appointed FCO what position does this place the local government in, considering every order and permit issued could be considered illegal?

The failure to issue a certificate under s 38(2E) would not affect the validity of their appointment so this question is not relevant.

3. is this an error that can be just “swept under the carpet”?

That’s a value laden question, but I would suspect that it’s an error that can be fixed by issuing the appropriate certificate.

4. And the big one is this an offence against section 177 of the criminal code?

Disobeying statute law
Any person who, without lawful excuse, the proof of which lies on him, does any act which he is, by the provisions of any public statute in force in Western Australia, forbidden to do or omits to do any act which he is, by the provisions of any such statute, required to do, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The offender is liable to imprisonment for one year.

Clearly this is not an example of a local government doing ‘any act which [it] is, by the provisions of any public statute in force in Western Australia, forbidden to do’ so that part of s 177 cannot be relevant.  Section 38(2E) does say ‘A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government…’ so arguably failing to issue the certificate is an example of a local government omitting to do something which it ‘is, by the provisions of any such statute, required to do…’

There are no cases in Western Australia that interpret s 177 so one can infer it is not a section that is frequently, if ever, relied upon.  The reason for that is clear, most if not all statutory provisions that are intended to carry a punishment will say what the punishment is.  Take for example the Bushfires Act 1954 (WA) s 57 discussed above.  The penalty for obstructing an officer is a fine of $5000.  That being set out in the Act it is ‘exclusive of all other punishment’ and so there is no role for s 177.  To find a statute that is intended to create an offence and carry punishment, and which does not say what the punishment is, is quite unlikely but possible.

Is a local government a ‘person’ for the purposes of s 177?  The Criminal Code 1913 says (s 1)

The term person … when used with reference to property, include corporations of all kinds, and any other associations of persons capable of owning property: They also, when so used, include Her Majesty;

The term ‘person’ in s 177 is not being ‘used with reference to property’ so on that reading a local government is not a ‘person’.

The Interpretation Act 1984 (WA) s 5 says that the term ‘person’ when used in WA legislation ‘includes a public body, company, or association or body of persons, corporate or unincorporate’.  The Local Government Act 1995 (WA) says that a local government is a body corporate and has ‘the legal capacity of a natural person’(s 2.5(3)).  Further ‘Proceedings may be taken by or against the local government in its corporate name’ (s 2.5(6)).   If the local government were not a ‘person’ it could not be convicted of any offence and that would be anomalous.  I would infer that by virtue of both the Interpretation Act and the Local Government Act, a local government is a ‘person’ for the purposes of s 177.

There are a number of things the local government ‘shall’ do to comply with the Bushfires Act 1954 (WA) s 38. They shall:

• ‘cause notice of an appointment made … to be published at least once in a newspaper circulating in its district’ (s 2A);
• ‘fill any vacancy occurring in the office of Chief Bush Fire Control Officer or Deputy Chief Bush Fire Control Officer within one month after the vacancy occurs’(s 2C); and
• issue a certificate of appointment (s 2E)

With respect to s 2C and filling vacancies, ‘some mode of proceeding … for such disobedience is expressly provided by statute’.  If the council does not fill a vacancy the FES Commissioner may serve a notice requiring them to do so and if they don’t comply with the notice, the FES Commissioner may fill the vacancy (ss 2C and 2D).  There is no alternative procedure for ss 2A or 2E.

In the circumstances one has to conclude that failing to issue a certificate of appointment could be a breach of s 177 of the Criminal Code and that could be relevant if for example a council simply refused to do so and it was thought necessary to bring them into line.

Just because something is an offence does not, however, mean it needs to be prosecuted.   The Director of Public Prosecutions has published Prosecution Policy and Guidelines 2005.  Apart from considering the strength of the evidence the prosecutor needs to consider the public interest including

(a) the trivial or technical nature of the alleged offence in the circumstances;…

(e) the degree of culpability of the alleged offender in connection with the offence; …

(g) whether a prosecution would be perceived as counter-productive to the interests of justice;

(h) the availability or efficacy of any alternatives to prosecution; … [and]

(j) whether the alleged offence is of minimal public concern;

I would suggest that a council that has failed to issue a certificate of appointment has committed an offence (if an offence has been committed) that is trivial and technical and of minimal public concern.  The culpability is minimal if they merely failed to realise they had to do it, there are alternatives available, in particular drawing it to their attention and directing them to issue the certificate.  I’m sure the entire community would think any prosecution is not in the interests of justice.

It follows that even if, strictly speaking, the failure to issue a certificate is an offence contrary to s 177 I can’t imagine any DPP would ever entertain the idea of commencing a prosecution for such an offence.

My correspondent writes ‘I realise this might be considered an industrial rather than an emergency law question …’ and that is correct, but given it applies to applies to paramedics in Victoria, my correspondent thought to ask, and I’ll have a go at an answer.

A question was raised about Nurses witnessing statutory declarations.  Paramedics are afforded permission to use stat decs as an alternative to a medical certificate for personal leave, to a greater extent than other professions.  In most cases, Police witness the declaration on a form consistent with the Victorian legislation. Nurses are not listed under Victorian legislation but under Commonwealth legislation.

Does that have significance on whether a nurse witnessed declaration is acceptable ie can an employer specify that a Victorian declaration is only suitable, thereby rendering a Commonwealth declaration void? Does the legislation determine this instead?

I’d like to understand the relationship between the two types of declarations, given I hold both the qualification of RN and Paramedic.

A statutory declaration is a form that allows a person to ‘declare’ that the contents of the declaration are true and correct.  The act of making that declaration is intended to bring home the seriousness of the declaration and to carry with it a penalty for making knowingly false declarations.  It is very important that the person witnessing the declaration understands that they are not merely ‘witnessing’ the declarant’s signature nor are they confirming that the person signing is the person named on the form.  The person authorised to ‘take’ the declaration must actually ask the person to declare that the contents are true and correct, and by adding their signature they are confirming that the declaration has been made.

Similar to a statutory declaration is an affidavit.  An affidavit is also a sworn document but it is intended to be used as evidence in court.   A false statement in an affidavit can amount to perjury.  In DPP v Marijancevic, Preece and Preece [2011] VSCA 355 police completed affidavits for the purpose of obtaining search warrants.   The document said that it was ‘sworn’ before a police inspector but the evidence revealed that ‘… the deponent [ie the person making the affidavit]  … had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits’.    The failure to swear that the contents of the affidavits were true meant that warrants were not properly issued and evidence of the accused’s guilt of serious offences contrary to the Drugs Poisons and Controlled Substances Act 1981 (Vic) was excluded.  Whilst that case was about affidavits, not statutory declarations, the lesson is the same.  People who are authorized to take a declaration must ensure that they properly ask the deponent to declare that the contents of their declaration is true and correct or they have failed in their duty and the statutory declaration is meaningless.

To now turn to the issues raised in the question.  There are indeed two pieces of legislation. They are

1. The Statutory Declarations Act 1959 (Cth) and
2. The Evidence (Miscellaneous Provisions) Act 1958 (Vic).

Under the Commonwealth Act, a declaration may be made before a range of people set out in Schedule 2 to the Statutory Declarations Regulations 1993 (Cth).  The list includes a registered nurse (reg 4(a) and Schedule 2).

Under the Victorian Act, the people who can take a declaration are set out in the Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 107A.  The list includes a registered medical practitioner (s 107A(1)(p)), a dentist (s 107A(1)(q) and a pharmacist (s 107A(1)(s)) but not a nurse.

A commonwealth statutory declaration ‘may be used  (a) for the purposes of a law of the Commonwealth or of a Territory…’ (Statutory Declarations Act 1959 (Cth) s 6(2)).   The Commonwealth has the power to make laws with respect to Territories (Australian Constitution s 122) but not States so we can be sure that the reference to ‘a Territory’ in s 6(2) means the Australian Capital Territory and the Northern Territory, but not Victoria.

My correspondent asks:

Does that have significance on whether a nurse witnessed declaration is acceptable ie can an employer specify that a Victorian declaration is only suitable, thereby rendering a Commonwealth declaration void? Does the legislation determine this instead?

The answer has to be ‘maybe’.  It actually depends on the law that governs leave.  If the relevant law is a commonwealth law, in particular the Fair Work Act 2009 (Cth) (see The Commonwealth setting terms and conditions of employment for Victorian fire fighters (May 20, 2015)) then the statutory declaration is being made for the purposes of a commonwealth law and a commonwealth declaration will be sufficient.  If the leave arrangements are governed by Victorian law then Victoria Ambulance would be entitled to insist that the declaration is a declaration under Victorian law, that is the Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 107.

As my correspondent originally wrote ‘I realise this might be considered an industrial rather than an emergency law question … and indeed it is.  I have explained the distinction between a Commonwealth and a Victorian statutory declaration but I can’t answer the ultimate question, can a Victorian ‘employer specify that a Victorian declaration is only suitable’ as I don’t know whether the relevant law governing the employment terms and conditions is a Victorian or Commonwealth law.  Answer that question and you have the answer to whether or not they can insist on a Victorian statutory declaration (which cannot be declared before a nurse) or whether a Commonwealth statutory declaration (which can be declared before a nurse) will suffice.

POSTSCRIPT

It should be noted that the difference between a Commonwealth and a Victorian statutory declaration is not just who can take the declaration, the forms are also different.  A nurse can’t sign a statutory declaration made on a Victorian form because the declaration is to be used for commonwealth law.  The form of each declaration is set out in the legislation:

Commonwealth Statutory Declaration (Statutory Declarations Regulation 1993 (Cth) Sch 1);

Victorian Statutory Declaration (Department of Justice and Regulation website)

This question clearly relates to an ongoing matter but I’m not given specific facts nor would it be appropriate to comment on them even if I was.  This answer will therefore be quite limited to the question asked:

I am interested in a fundamental aspect related to a series of allegations made against a crew of five volunteers on interstate deployment:

Does the NSW Rural Fires Act apply to NSW RFS members [paid or volunteer] performing duties at a fire as part of a NSW RFS interstate deployment?

If it does are there any limits to its applicability? For example, do the authorities associated with the various ranks of the RFS apply interstate?

This is a complex issue and depends to a large extent on the particular circumstances and interpretation rather than a clear rule.  The answer must be as follows:

The Rural Fire Service is an entity created by the Rural Fires Act 1997 (NSW) s 8.  People join the RFS (s 20) and when they deploy interstate they are part of the RFS.  If the provisions that govern the operation of the RFS didn’t apply interstate, then the deployment would not be by the RFS but by a group of individuals who happen to belong to the RFS.    To put that another way, it is the RFS that goes interstate.  Like any corporate entity the RFS is a fiction, it doesn’t physically exist.  The RFS’ physical existence is created by the assets and people that are part of it.  Those firefighters that go interstate are the RFS so must be governed by the RFS procedures including the rank structure and the disciplinary provisions.

What can’t apply interstate is the RFS provisions that allow the RFS to do something contrary to the rights of others.  So, for example, in NSW

(1) An officer of a rural fire brigade or group of rural fire brigades may for the purpose of controlling or suppressing a fire:

(a) take and use without any payment any water from any source on any land… (Rural Fires Act 1997 (NSW) s 26)

But that authority could hardly be extended interstate particularly if it conflicted with interstate law – for example in Western Australia

… for the purpose of controlling and extinguishing or preventing the occurrence or spread or extension of a bush fire, or for any other prescribed purpose, the captain … of a bush fire brigade … may —

(d)         enter or give directions for entering land or premises, and take or cause to be taken  water  from any source whatsoever, other than … the domestic supply of an occupier contained in a tank at his dwelling-house, …(Bush Fires Act 1954 (WA) s 44).

It would be inconsistent if a member of the NSW RFS in WA could rely on the NSW Act to enter land and take water that is ‘the domestic supply of an occupier contained in a tank at his dwelling-house’ when a WA fire brigade captain could not take that water.

How the chain of command would work would have to depend on the arrangements in place.  First under AIIMS there must be an incident controller – the incident controller will be in ‘control’ of the response, the RFS team leader will be in ‘command’ of the RFS contingent.  The interstate authorities (depending on the state) will have legislative power to control the movement of people in the fire ground and direct fire fighting operations. Assume the RFS is allocated a sector of the fire and they are working independently then the RFS commander would, subject to the directions of the incident controller, be responsible for the discipline of the RFS members.  Another example might be that the interstate authority is working in the area and the RFS members are reporting to the sector commander from the local authority.  Whilst the RFS team leader would still be ‘in command’ of RFS members, they could not give directions contrary to the sector commander or IC and certainly an RFS senior officer could not start directing the RFS in a way that is inconsistent with the Incident Action Plan and the orders of the local authority.   But if the RFS members were not obeying directions or otherwise acting in ‘breach of discipline’ responsibility for them would always fall back to the RFS in it’s ‘command’ role.

The key disciplinary provision is found in the Rural Fires Regulation 2013 (NSW) r 9. That says:

(1) An officer or member of a rural fire brigade or group of rural fire brigades is guilty of a breach of discipline if the officer or member:

(a) contravenes the Act or a provision of this Regulation, or

(b) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or

(c) fails to comply with the Service Standards.

It may be that when interstate it is not possible to comply with some provision of the Act or Regulations because all though the conduct required is lawful in NSW it is not lawful in the other state.  Such a situation is possible, but unlikely.   To take my water example a firefighter does not ‘breach’ the RFS Act if he or she fails to take water from any source so complying with the WA provision would not represent a ‘contravention’ of the NSW Act.  Nor would it be ‘negligent’ even if, in NSW, one would expect a fire fighter to take that water to fight the fire.  What is negligent depends on what is ‘reasonable’ and it is ‘reasonable’ to comply with the law in the relevant jurisdiction.   If, however, we assume for the sake of the argument that there is some NSW provision that says ‘a fire fighter must …’ and an interstate provision that says ‘a fire fighter must not …’ then that must be considered when deciding whether an offence under regulation 9(1)(a) is established.

On the other hand, a member of the RFS could be ‘negligent, careless, inefficient or incompetent in the discharge of his or her duties’ both in NSW and interstate and if that is the case there may be a question mark over their continued membership of the RFS.  The RFS have to be able to deal with that whether the alleged incident occurred in NSW or elsewhere.

Conclusion

Exactly what provisions can be applied interstate would be a matter of interpretation and consideration of the actual circmstances, but it has to be axiomatic that the provisions governing internal discipline have to apply in order for the task force to be an RFS task force, and not just a group of individuals.

I’ve been writing this blog since 2009 so today most questions that come in are at least familiar and I’m confident I know what the answers going to be even before I start checking. Occasionally a question raises something of particular novelty and complexity (see for example Why dangerous goods placards ARE NOT required on an ambulance! (May 13, 2015)), and sometimes answers that are just – surprising.  Today’s question is one of those:

Essentially, ACT St John are unable to cover a duty request and as such it had come across the border to NSW. To allow appropriate kitting and prep, is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?) I’ve read through Poisons Acts and first aid kit licencing.  According to the Poisons Act (ACT), the territory will recognise any licence that is issued under commonwealth law. NSW however is a different beast. No mutual recognition. However, to carry/use some of the same meds in NSW only needs a work cover approved first aid cert…

I confess this is an issue I’d ‘skirted’ around in earlier answers that is the question asked didn’t need me to address this head on, so I didn’t but now I have no choice and it appears that the answer is ‘No, an interstate authority is not sufficient’.  As I say I think this answer is both surprising and important for the sector so in this blog I’m going to limit myself to the facts given, ie St John volunteers crossing between NSW and the ACT.  I may take time to write a more detailed paper looking at all health professionals (in particular doctors, nurses and paramedics) and all states and look to publish that in an appropriate journal, perhaps the Australian Journal of Emergency Management.   Watch this space and I’ll let you know if and when that happens.

THE AUSTRALIAN CAPITAL TERRITORY (‘the ACT’)

In the ACT the relevant law is set out in the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT).  The Act uses the term ‘regulated substance’ to mean ‘a medicine, poison, prohibited substance or schedule 10 substance’ (s 10).    Medicines are listed in schedules 2, 3, 4 and 8 of the poisons standard (s 11) in force under the Therapeutic Goods Act 1989 (Cth) (s 15).   A ‘declared substance’ is any medicine (ie schedule 2, 3, 4 or 8 drug), or other prohibited poison or substance (s 25).

A person commits an offence if they obtain, possess or administer a ‘declared substance’ without lawful authority (ss 35, 36, 37).  Section 20 says:

… a person is authorised to deal with a medicine … if—

(a)     the person has a licence or permit under a Commonwealth Act, this Act or another territory law that authorises the dealing; or

(b)     the person may or must deal with the medicine or poison under a Commonwealth Act, this Act or another territory law; or

(c)     the chief health officer approves the dealing under a regulation; or

(d)     the dealing is otherwise authorised by regulation.

There is no general provision that says an authority issued in another state applies in the Australian Capital Territory nor is there any overriding rule that says interstate licences are to be accepted in the Territory.    We can draw an analogy with driving, a person can drive in the ACT with a NSW licence not because of some general rule that the ACT will recognise interstate licences in all areas, but because of a specific rule set out in the Road Transport (Driver Licensing) Act 1999 (ACT) s 31.    Equally if it was intended that a person did not need an ACT authority under the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) if they held an authority under a law of another state or territory, the Act would say that.  It does not.

The Act does say that where a person has an authority under a ‘corresponding law’ (that is ‘a law of a State corresponding, or substantially corresponding, to this Act’ (Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) Dictionary) then that authority does, in limited circumstances, apply in the ACT.  The limited circumstances relate to:

• Wholesalers supplying medicines under corresponding laws (Medicines, Poisons and Therapeutic Goods Act 2008 s 20(4) and Medicines, Poisons and Therapeutic Goods Regulation 2008 r 270);
• Wholesalers supplying dangerous poisons under corresponding laws (r 725);
• Packaging of medicine (r 501);
• Labelling of supplied manufacturer’s packs of medicines (r 502); and
• Possession by sales representatives for medicines manufacturers and wholesalers (Medicines, Poisons and Therapeutic Goods Regulation 2008, Schedule 1 Part 1.12).

Further a ‘regulation may also make provision in relation to the recognition of authorisations (however described) under corresponding laws and the circumstances in which an authorisation to deal with a regulated thing under a corresponding law authorises people to deal with the regulated thing in the ACT’ (Medicines, Poisons and Therapeutic Goods Act 2008 s 186(2)).

An example of a regulation that allows interstate practitioners to carry and use medicines in the ACT is found in the Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) Schedule 1, Part 1.1.  This regulation says ‘Ambulance officers employed by the Commonwealth, a Territory or a State are authorised to obtain, possess and administer medicines within the scope of their employment’.   There is no other regulation that would be applicable in the circumstances described by my correspondent.

Conclusion – ACT

The conclusion has to be that to possess, supply or administer a schedule 2, 3, 4 or 8 medicine in the ACT a person has to have an authority issued by the Chief Health Officer of the ACT.   Presumably members of St John Ambulance Australia (NSW) do not have that authority.  It follows that if they wanted to travel to do duty in the ACT any authority they have under the relevant NSW law would not be sufficient and they would have to leave their scheduled drugs at the border.

NEW SOUTH WALES (NSW)

The NSW law does give some exemptions from compliance with the NSW Act where a person has an exemption under a law in another jurisdiction.  These exemptions are limited to Packaging and Labelling (s 10 (Schedules 1, 2, 3, 5, 6 and 7), s 28 (Schedule 4) and s 72 (Schedule 8)).

Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) says, at cl 7:

Emergency medical treatment by ambulance officers

A person:

(a)  who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and

(b)  who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General for use by such persons in the carrying out of emergency medical treatment.

That would give little comfort to ambulance officers from the ACT, Queensland or Victoria who may have to cross the border to provide care.

Regulation 170 says ‘The Director-General may issue authorities for the purposes of the Act and this Regulation’.    It is not possible to access the authorities that may have been issued so the Director-General may well have issued authorities to interstate ambulance services or St John Ambulance (ACT) but even so the authority has to come from NSW.  There is no provision that would allow members of St John Ambulance (ACT) to carry drugs that they are authorised to use in the ACT, into NSW.

THE COMMONWEALTH

Under the Australian Constitution, the Commonwealth may make laws for ‘The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States’ (Australian Constitution, s 51(xxv)).    The Commonwealth could therefore pass a law to the effect that a licence or authority in one state is sufficient in any other state or territory.

The closest that the Commonwealth has come is in the Mutual Recognition Act 1992 (Cth).  That Act provides that ‘a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation’ (s 17).  That is, by virtue of this Act, if a person is registered to practice a profession in one state, they can apply to the registration in another state to be registered to practice their profession in that state, too.  That is not relevant in our context as first aid volunteers (and paramedics) are not registered for an occupation in any state.   This Act therefore provides no assistance.

The Constitution also says:

• ‘… trade, commerce, and intercourse among the States … shall be absolutely free’ (s 92);
• ‘A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State’ (s 117); and
• ‘Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State’ (s 118).

One could try a constitutional argument that failing to honour an authority in one state is to restrict interstate trade and commerce, is to impose a disability upon ‘him’ that he is not subject to in his home state and fails to give full faith and credit to the laws of the State.  I’m no constitutional law expert but I wouldn’t hold out much hope on that because the issue of free interstate trade is really that the states can’t impose customs duties on the state borders; that a person needs authority in one state is equally true in all states and one can give full faith and credit to ‘the laws’ without necessarily given full faith and credit to each licence.  If that were not the case provisions like the Road Transport (Driver Licensing) Act 1999 (ACT) s 31, discussed above, would not be necessary.   In any event a St John volunteer should not expect to have to go to the High Court of Australia to determine if carrying scheduled drugs interstate is lawful.

CONCLUSION

As I say this is a surprising conclusion but the conclusion is that an authority to use scheduled drugs in one state or territory is not transferrable to another.    To return to my correspondent’s question:

 ‘Is a NSW poisons licence valid for use in the ACT?? (And potentially vice versa?)’

The only answer I can come up with is:

‘No’.

A correspondent writes:

I am with the NSWRFS. We recently attended a pile burn during the fire danger period. The resident had a constant water supply and was burning naturally fallen materials. The fire was under constant supervision all within accordance with legislation. The resident however did not notify the RFS or his neighbours as required. I made the decision, along with another ranking officer in attendance that the fire itself was safe, we obtained details of the landholder as we are instructed to do and then left.

As we were leaving we were instructed by the FCO to return and extinguish the fire due to it being an illegal fire within the statutory bushfire danger period.

My questions are:

1)        What are our legislative requirements around this? Do we have to extinguish if we (the officers) made the determination that the fire was safe; and

2)        Do we have the power to demand the details of the landholder if we (the people in attendance at said fire) do not intend on issuing a penalty notice for the ‘illegal fire’.

For a related discussion, see Entering private land to extinguish a fire in Melbourne (July 2, 2014).

Any person:

… who lights a fire on land:

(a) for the purpose of land clearance or for burning any fire break, or

(b) in circumstances in which doing so would be likely to be dangerous to any building,

is guilty of an offence unless the person has given notice in accordance with the regulations to the persons prescribed by the regulations (Rural Fires Act 1997 (NSW) s 86(1)).

The notice required to comply with s 86 must include

… particulars of:

(a) the name of the person proposing to light the fire, and

(b) the location, purpose, period and time of the fire proposed to be lit.

The notice must be given to the occupiers of neighbouring land and the officer in charge of the relevant rural or urban fire brigade (Rural Fires Regulation 2013 (NSW) r 33).

Further, if the fire is to be lit during a bush fire danger period the fire must be authorised by a fire permit and the person lighting the fire must comply with the conditions of that permit (s 87).

My correspondent says that the fire in question complied with requirements other than the requirement to give notice under s 86.

Let me now turn to the questions: Do we have to extinguish if we (the officers) made the determination that the fire was safe?

It is the function of the NSW Rural Fire Service ‘to provide rural fire services for New South Wales’ (s9(1)(a)).   Rural fire services include:

(a) services for the … suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

But it can’t be the function of the RFS to suppress all fires.   Where a fire is not posing a threat to ‘persons’, ‘property’, ‘infrastructure’ or ‘economic, cultural, agricultural and community assets’ then there is no need for ‘protection’.   Not all fires need however to be suppressed. If a fire brigade is called to a fire that is being properly monitored, has appropriate permits etc then it would be quite wrong to extinguish it.

Fires that have been lit contrary to law, even if the breach is about notice, then there may be good reason to extinguish it. First the legislature has intended that the law as written will be complied with. The obligation to give notice to neighbours is to allow them to prepare their property, whether it is making decisions not to put clothing on the line or to make sure they monitor the neighbour’s fire and have in place fire fighting resources. To allow the fire to burn even though notice has not been given is to fail to recognise the rights of the neighbours and the obligations of the land owner.   I don’t think we can say that this gives rise to a legal ‘obligation’ to extinguish the fire but it must certainly give rise to a good reason to do so even if the fire is ‘safe’.

Do we have the power to demand the details of the landholder if we (the people in attendance at said fire) do not intend on issuing a penalty notice for the ‘illegal fire’?

Section 131A of the Rural Fires Act says (emphasis added):

An authorised officer who intends to serve a penalty notice on a person under section 131, or a police officer who has reason to suspect that a person is committing an offence against this Act or the regulations, may direct the person to state the person’s full name and residential address.

If the people in attendance at the fire do not intend to serve a penalty notice then there is no power to direct the person to give those details.   That does not mean the fire officers can’t ask, anyone can ask anyone else whatever they want, but it does mean they cannot ‘demand’ those details and a person would not commit an offence if they refused to provide them.   So, if we imagine a conversation, a person could be asked to give their name and address and they might ask ‘do you intend to issue a penalty notice?’ and if the ‘authorised officer’ says ‘no’ then the person would be within their rights to say ‘then I’m not going to provide those details’.

On the other hand, if the officer said ‘yes I do’ and the officer then explains it is an offence to fail to provide the details then the person who refuses to [provide those details commits an offence (s 131(2)). That would not stop the authorised officer later changing his or her mind and deciding not to issue the notice.

The answer to this question from Western Australia may be one of my shorter answers. My correspondent writes:

There are a few privately owned ambulance services and only one service which holds the contract for “000” calls in the state.   My question is – if a person gets injured, whether it be trauma or medical related; at home or in public, can any Ambulance service be contacted directly to render professional service and take them to hospital?

St John Ambulance Western Australia Ltd is a Company Limited by Guarantee (2014-2015 Annual Report, p 8). It has some legislative functions as it is ‘a combat agency responsible for the emergency management activity of providing health services’ (Emergency Management Regulations 2006 (WA) r 27).  According to the 2014-2015 Annual Report (p 76) “The contract for the provision of health services with the State of Western Australia was signed on 29 June 2015. The contract is for the period 1 July 2015 to 30 June 2018. This follows the expiration of the previous contract, which was for the period 1 July 2010 to 30 June 2015.”

So, as my correspondent has noted, St John is a private provider and is the provider that ‘holds the contract for “000” calls in the state’. There is however no ambulance service legislation in Western Australia so there is nothing to stop any of the other providers providing an emergency ambulance service. They may not be included in the triple zero response but they could set up a service where subscribers call their emergency number, rather than 000, and get their contracted ambulance service of choice to respond.

The limitations may be that there are conditions on the services’ authority to carry and use drugs or on their authority to operate as an emergency vehicle outside some designated area of operation.   I can’t access those authorities so subject to any terms of those approvals ‘any Ambulance service [may] be contacted directly to render professional service and take [an injured person] to hospital’.