A volunteer with NSW RFS asks

My query is in relation to the NSWRFS and its role as PCBU for its volunteer workforce. Does a volunteer of the NSWRFS now hold rights as a public service worker seeing volunteers are now deemed to be workers? Should there be a workplace agreement between the NSWRFS office (PCBU) and its workers (Volunteers) the same as any normal workplace? If so is a volunteer (worker) of the NSWRFS entitled to representation by a Union such as the PSA where workplace related issues can be taken up?

The short answer is ‘no’.    The term ‘worker’ includes a ‘volunteer’ for the purposes of the Work Health and Safety Act 2011 (NSW), not for all purposes.    The reason they now use the terms ‘worker’ and PCBU, instead of ‘employee’ and ‘employer’ (as was the case in the Occupational Health and Safety Act 2000 (NSW)) is because there is a difference.  An employee has entered into a particular type of contract with their employer.  The concept of a worker, particularly under the 2012 Act, is much broader than just an employee.

So a volunteer with the RFS is a ‘worker’ but they are not deemed to be an employee.   As they are a worker for the purposes of the Work Health and Safety Act then the rights and duties are under that Act.  The PCBU has to take care of their volunteers as they would their employees.  A volunteer is obliged to take reasonable care for his or her own health and safety, take reasonable care not to adversely affect the health and safety of others, to comply with any reasonable instruction that is given to allow the PCBU to meet its obligations under the Act and to co-operate with any reasonable policy or procedure relating to health or safety, as they would if they were an employee.

A volunteer worker is entitled to take part in health and safety consultation as if they were an employee.  The PCBU must consult with workers, including volunteers (s 47).  A volunteer can request the election of a health and safety representative (s 50) and may be a part of a health and safety committee or other consultation arrangements.

A relevant union may hold a WHS entry permit (s 116) and can then enter the workplace to inquire into suspected breaches of the Act or to consult with workers.   A ‘relevant worker’ is worker ‘a) who is a member, or eligible to be a member, of a relevant union, and (b) whose industrial interests the relevant union is entitled to represent…’   Whether or not you could join a union would, I suggest, be a matter for the union but I would suggest that a volunteer does not have ‘industrial interests’.     If the union represents paid staff it could enter to investigate a breach of the Act and may take action if it finds a breach even if the only people affected are volunteers – in that situation they are acting like the police.     It’s a matter of industrial law as to whether a volunteer could join the union but assuming they can’t then a union couldn’t enter to consult only with volunteers, but it could do so to consult with its members and I imagine could well invite volunteers to join the meeting.

The definition of ‘worker’ in the Work Health and Safety Act would not allow a volunteer to ‘representation by a Union such as the PSA where workplace related issues’, other than issues related to the Work Health and Safety Act can be raised.

My correspondent writes:

My query is not in relation to emergency services per se, but what I would consider a related topic; the possession and use of scheduled analgesic medications in the civil workplace.

Under the legislation such as the Poisons Regulations 2008 (Tas) Division 5A, a “responsible officer” at a workplace may – without further qualification – obtain, possess, and supply methoxyflurane (s 62C) or nitrous oxide (s 62B) to an appropriately credentialed first aid officer. A first aid officer may supply that substance to a patient for self-administration. There is no is no specification under this section that requires a workplace be considered high-risk, or to be of a certain size, or to be part of a particular industry.

I have not been able to locate any criteria which would exclude any workplace from being authorised to obtain, possess, and supply methoxyflurane. Under relevant Acts and Regulations in Tasmania and their equivalents in other States, does anything prevent the average Vinnies op shop, Woolies, or local bowls club from acquiring methoxyflurane or nitrous oxide?

There also does not seem to be legislated or regulated requirements regarding the carriage of methoxyflurane or nitrous oxide outside the workplace, or an obligation for the qualified first aider to be within their workplace to administer the drug. Is there anything that would prevent, for example, a sports club first aid officer travelling to an away game from stopping at a roadside vehicle crash and administering methoxyflurane to a patient in significant pain?

According to s 62A, a ‘responsible officer’ is a person appointed under s 10 of the Workplace Health and Safety Act 1995 (Tas).  Unfortunately the Workplace Health and Safety Act 1995 (Tas) has been repealed and replace by the Work Health and Safety Act 2012 (Tas).   One could infer that a person who was appointed under s 10 retains their appointment, but no new ‘responsible officer’ can be appointed.

Section 10 of the Workplace Health and Safety Act 1995 (Tas) used to say:

An employer is to appoint a responsible officer for each workplace at which the employer carries on business.

If an employer did not appoint a responsible officer then ‘the person responsible for the direction and management of the business’ was deemed to be the responsible officer.   It follows that every employer had a responsible officer.  It’s true therefore that every employer, no matter the size so including ‘the average Vinnies op shop, Woolies, or local bowls club’ could acquire methoxyflurane and nitrous oxide.

Under regulations 62B and 62C it was the responsible officer who could buy the drugs to give to the first aid officer to use.    One could infer given that both regulations referred to the ‘Possession, supply and administration of nitrous oxide (62B) [or methoxyflurane (62C)] at workplace’ that there had to be a link to the workplace and the first aid officers duties at work.

So what happens now that there is no s 10 of the Workplace Health and Safety Act 1995 (Tas)?  I actually think that it makes no difference at all because of regulations 62D and 62E.  Section 62D says ‘person who has a current certificate in the use of nitrous oxide (S4)’ may obtain and possess nitrous oxide and supply it to a person for self-administration on the oral direction of a doctor or the written direction of a doctor or a paramedic.  In an emergency they may supply it for self- administration with no authority of a doctor or paramedic.  The same is true for methoxyflurane (reg 62E).

In short if a person has obtained the appropriate certificate in the use of these drugs, granted by a registered training organisation’ they can obtain, possess and use the drugs in the circumstances set out, that is on the oral direction of a doctor, the written direction of a doctor or a paramedic or in an emergency (not defined) with no need for authority from a doctor, a paramedic or anyone else.

So it’s true that there is nothing to stop ‘a sports club first aid officer travelling to an away game from stopping at a roadside vehicle crash and administering methoxyflurane to a patient in significant pain’ more importantly the regulations specifically permit such an action.   And such an action should be permitted and encouraged because if the person has the training, and has the drugs at hand, they should be delivered to a person who needs them.   Anything less would be unethical and possibly negligent.

The question came to me from a member of the RFS. I can’t really answer the question but that won’t stop me posting some thoughts on the issues raised.  The question relates to the use of Compressed Air Breathing Apparatus (CABA) when responding to a vehicle fire.

My NSW RFS brigade is a village 2 / CABA brigade.   Since we have become CABA qualified we have implemented a policy where at car fires we use CABA qualified members in breathing apparatus to attack and extinguish the fire if they are available. Previous to having CABA the brigade would attack these types of incidents by trying to stay a little further back and avoid the worst of the smoke where possible.

The rationale of our officers in implementing this CABA at car fires policy was due to the toxic chemicals etc contained in car fire smoke and the knowledge that even outside of the main smoke column there are numerous toxins in the air which can be harmful. Given that these risks can be removed or at least minimise by using CABA operators it was felt by the officers that we would be negligent (morally if not legally) to expose our members to a known risk when a safer option was available.

The question has been asked as to whether this policy represents bullying or discrimination against non CABA trained members by not letting them attack the fire. The rationale for this being that we used to attack car fires in that manner before we had CABA and since no one had ever got seriously sick the risk mustn’t be that bad.

We were hoping you could provide your opinion on the following:

• Do the officers have a legal/health and safety obligation to use CABA trained members at car fires where they are available?

• Do the officers have an obligation (where CABA trained members are available) to stop non CABA trained members from attacking the fire from a distance given that this is the safest option available without CABA but still riskier than using CABA where it is available?

• Could the policy as outlined above be considered bullying and/or discrimination?

The issue here isn’t the law as such, but the actual nitty gritty of fire fighting.  The RFS Breathing Apparatus SOP says (emphasis added):

BA shall be used wherever firefighters may be subject to hazards, (such as toxic gases, hazardous dusts/fibres, hot atmospheres, smoke and oxygen deficiency) that may injure their respiratory system. Scenarios for its use may include interior structural firefighting, some vehicle incidents, and when assisting in some capacities at HAZMAT incidents.

But what ‘vehicle incidents’ is not explained.  The SOP also says:

BA shall only be used in accordance with appropriate safe operating and firefighting procedures.

I don’t know what the limitations are.  Presumably fighting a grass fire in CABA is safer than not at least in terms of respiratory exposure but perhaps not in terms of heat exhaustion and manoeuvrability.  So one has to consider what are ‘appropriate safe operating and firefighting procedures‘.

One can foresee a difficulty that if it’s decided that CABA is required then that would suggest that all brigades that might respond to a motor vehicle accident (and I would think that’s all of them) would need CABA. Alternatively if it’s safe for some brigades to respond without CABA it must also be safe enough for a CABA brigade to fight a fire without CABA.

The RFS has an obligation to ‘ensure, so far as is reasonably practicable, the health and safety of’ its firefighters (Work Health and Safety Act 2011 (NSW) s 19).  Deciding what is ‘reasonably practical’ requires a consideration of

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

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

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

(i) the hazard or the risk, and

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

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

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (Work Health and Safety Act 2011 (NSW) s 18).

The answer depends upon consideration of all those questions that in turn requires a detailed knowledge of the risk and what are appropriate fire fighting techniques.  I can’t address the issues, above, so a definitive answer can only come from the RFS Work Health and Safety Team.  Whatever the answer is should be based on science and a proper risk assessment (see ‘Occupational Health and Safety and Discrimination’ (January 5, 2010)).

Presumably the RFS should be able to say:

1. CABA is not required in the circumstances; or
2. CABA is required in the circumstances; or
3. If CABA is available there is one fire fighting technique, but if not there is another technique to be adopted (see NSW RFS village firefighting (April 9, 2014)).

Given that I can’t address the specific question there are some comments that can be made about general principles.  Whether it’s ‘reasonably practicable’ to require all firefighters to wear CABA at a car fire is not, as I’ve already noted, something I can comment on.   Ultimately that is something the RFS has to address.

A firefighter (including a brigade officer) must

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. (Work Health and Safety Act 2011 (NSW) s 28).

(It should be noted that an officer of a brigade is not an ‘officer’ for the purposes of the Work health and Safety legislation. Under WHS law an officer is that is a ‘person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown’ (s 247)’.   The extra duties imposed on ‘officers’ (s 27) are not applicable just because one is called an ‘officer’ by the RFS.)

As a brigade member one might refuse to go near a car fire without CABA on the basis that failure to do so is not taking care of your own safety.  As for other members of the brigade, the brigade needs to comply with the relevant RFS policy, which at least to the extent that it is publically available, is unclear.

I can’t see how applying the brigade policy can constitute discrimination.  Discrimination is unlawful when it is treating someone differently on the basis of the sex, marital status, age, sexuality or other prohibited reasons (see Anti-Discrimination Act 1977 (NSW)).    Discriminating on other grounds is not lawful it may at times be required.  The principle of anti-discrimination is that like cases should be treated alike but someone who is trained in CABA is not the same as someone who is not.  If there is a real risk it is appropriate to discriminate against the non CABA trained member on the grounds if he or she is exposed to an unnecessary and unreasonable risk that the CABA trained member is not exposed to.  It is, fortunately, not discrimination to refuse to let me use a piece of equipment I don’t know how to use, or to refuse to allow me to do a task that requires knowledge and training I don’t have.

The action described here could be bullying, depending on the motivation and how the policy is implemented.  The Australian Human Rights Commission defines bullying as ‘verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work.’  They give the following examples, ‘excluding you or stopping you from working with people or taking part in activities that relates to your work’ and ‘intimidation (making you feel less important and undervalued)’ (see https://www.humanrights.gov.au/workplace-bullying-violence-harassment-and-bullying-fact-sheet).   One can see that if an individual is being singled out and not allowed to take part in fire fighting duties that could be excluding them from the task and make them feel ‘less important or undervalued’.  That could be avoided by making the reasoning clear, ensuring that the person is fully involved in all of the brigade activities that they can be involved in, taking steps to ensure that they are valued for their contribution and most importantly, ensuring that the policy is not applied to an individual.  If the policy is being applied to all no CABA members and for genuine WHS concerns then I fail to see how it would be considered ‘bullyng’. The exception would be if there was a clear RFS policy on the use of CABA that did not require the use of CABA in the circumstances and if the individual concerned was, in all other respects, qualified to fight the fire.

As noted this question is really about the nitty gritty for fire fighting, not the law. As such I suggest that this is a question you need to send to the RFS Work Health and Safety team.

A question from a member of the NSW RFS:

If an issue has dealt with under the RFS grievance policy with no action taken and the person who made complaint agreeing with that outcome, can the person then raise the same matter under the disciplinary policy? Are they allowed to raise issues again that have already been dealt with?

That’s a tough question and the ultimate answer will depend on the facts and the nature of the complaint, but the initial answer has to be ‘no’.

Let’s start with the grievance policy, Service Standard 1.1.3 Grievances (3 October 2008). Paragraph 1.1 says: ‘The purpose of this service standard is to ensure there is a procedure in place where genuine problems, concerns and complaints of all members of the RFS are successfully addressed and resolved within the RFS.’

One might interpret a ‘grievance’ as something in the nature of a personal conflict but that is not necessarily the case. Although what is a ‘grievance’ is not defined it is anticipated that a grievance can involve ‘allegations of serious breaches of discipline, such as misconduct or negligence’.   The link with the discipline standard is set out in [2.11]-[2.14]. They say:

2.1.1 The use of the Grievance Service Standard can result in a recommendation that the RFS take action in accordance with Discipline Service Standard.

2.12 However, disciplinary processes are not part of the system to deal with members’ concerns and grievances and any grievance procedures should only deal with matters raised by an individual member.

2.13 The discipline processes should only deal with performance or conduct matters identified by the RFS.

2.14 RFS staff members should also refer to the Premier’s Department Guidelines for Managing Conduct and Performance”.

If there is any doubt as to whether the matter is a grievance or disciplinary matter, some level of investigation should be conducted to establish the facts, so that the best decision to manage the issue can be made.

The discipline standard, Service Standard 1.1.2 Discipline (4 September 2007) deals with allegations of a ‘breach of discipline’ ([2.6]). What is a breach of discipline is defined in the Rural Fires Regulation 2013 (NSW) reg 9. That Regulation says that a member is guilty of a breach of discipline if he or she:

(a) contravenes the [Rural Fires] Act or a provision of this [Rural Fires] 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.

Discussion

The grievance policy allows members to raise their concerns with the RFS. Those concerns could include issues of personal conflict, issues of policy or practice or issues that constitute a breach of discipline. The policy is not so much about the outcomes but about how, and encouraging members, to raise issues that impact upon the RFS. It would appear from [2.11]-[2.14] that the policy is not meant to be used to deal with issues that constitute a breach of discipline but it is anticipated that the policy may be used to raise issues that are a breach of discipline. So if a member lodges a grievance and it is determined that the matter is a breach of discipline then the process is ‘shifted’ to the disciplinary rather than grievance process.

There is a concept that we lawyers are familiar with called ‘issue estoppel’; that is where a competent tribunal has determined an issue, a subsequent tribunal cannot re-determine the matter or make a ruling inconsistent with the first ruling. That is unlikely to apply to the RFS in a binding way but it should certainly guide decision-making and the requirements for natural justice. Let me try to explain that in more detail.

Assume someone lodges a grievance alleging that another member was ‘negligent’ on the fire ground and exposed other members to danger.   That could be seen as an appropriate issue for settlement under the grievance policy and a solution may be to get the members together to each explain what happened. The member may explain his or her decision making process and what they took into account, the person who lodged the grievance may explain what the outcome was and how they thought it was dangerous. All parties may gain information that they weren’t aware of and may learn lessons from the event and the brigade may introduce new measures to make sure it doesn’t’ happen again and in the best of all possible worlds, that learning may be shared with the entire service so all brigades benefit from the ‘lesson learned’.

It would seem ‘unreasonable’ the then raise the matter as a breach of discipline.   But it cannot be that it cannot be dealt with as a disciplinary matter. For example, assume that it is resolved and everyone at brigade level is happy, but a more senior officer reviews the matter and is concerned that perhaps there has been a pattern of conduct that the brigade members weren’t aware of, or that the Brigade captain saw the issue as one of internal harmony but didn’t really give sufficient consideration to the needs of the RFS (Grievance policy [1.2]). The senior officer may think this is a matter that needs more formal investigation in order to ‘demote the officer or member’ or ‘disqualify the officer or member from holding rank in the brigade or group’ (Rural Fires Regulation 2013 (NSW) reg 9(3)(c)(i) and (ii)).   That senior officer could not be stopped from raising the matter as a disciplinary matter even though it had been resolved. Again, in the best of all possible worlds, the need to escalate the matter should have been identified earlier (Grievance policy [2.11]) but that cannot deny the right of the RFS to take the action it needs to take to protect itself and the community.

I can’t see that there’s anything to stop the same member raising the same issue. He or she may lodge a grievance on the basis that another member’s conduct affected them personally; and then make an allegation of ‘breach of discipline’ on the basis that the conduct also adversely affects the RFS.   If the matter has been dealt with under the grievance policy, the disciplinary allegation raises nothing new, and the original decision determined that the matter did not warrant disciplinary action, that may well justify a decision to dismiss the second complaint as ‘vexatious’ that is ‘made without merit and so as to cause inconvenience, upset, annoyance, frustration or worry to the person against whom it is made’ (SOP 1.1.2 – 2 Investigation of Allegations [2.4(b)] and footnote 4.) On the other hand the claim may be sufficiently different on the basis of the impact that it can and should be revisited. It really depends upon the issues in question.

The real complexity is if the allegation is that the member did something that both affected the complainant and could be a breach of discipline, and upon investigation it is determined that the alleged conduct never occurred. One would expect that under the grievance policy there would be some attempt to bring the parties together and explore the facts and reassure the complainant that whatever he or she thought had happened had not occurred. In that case, and certainly if the complainant appears to accept that they were wrong, it would seem to be entirely vexatious to try to raise the same issue under the disciplinary policy.

Conclusion

Dealing with grievances must be ‘complex challenges involved in resolving grievances’ (Grievance policy [1.2]) particularly where the matter can also constitute a breach of discipline. As the policy notes

… grievance procedures should only deal with matters raised by an individual member.
The discipline processes should only deal with performance or conduct matters identified by the RFS. ([2.12] and [2.13])

One matter can affect both individuals and the RFS so there has to be room to deal with it under both. The fact that something has been dealt with as a grievance cannot stop the RFS dealing with it as a disciplinary matter if that is necessary to protect the interest of the RFS and more importantly the safety of the community or other members.

So the answer to the question ‘Are they allowed to raise issues again that have already been dealt with?’ has to be ‘yes, they are allowed to’ but the fact that the matter has already been dealt with is something that the person receiving the disciplinary complaint would take into account in deciding whether or not the complaint is vexatious or warrants further action.

This from a retained firefighter with Fire and Rescue NSW:

As a driver of an emergency vehicle over 12t am I exempt from having to make entry’s in a heavy vehicle log book/work diary. I understand the current rules in relation to 100km from base station etc, but what if we are for example returning from a task force greater than 100km away. If we are returning we are no longer ‘responding’ so would this then make us exempt?

Heavy vehicle laws are now national.  The primary law is the Heavy Vehicle National Law (Queensland) which is incorporated into each state and territory’s laws for example by the Heavy Vehicle (Adoption of National Law) Act 2013 (NSW).  The Heavy Vehicle National Law has multiple provisions dealing with fatigue management including the need to keep a log book of driving and rest times.    

A motor vehicle with a GVM of more than 12t is a ‘fatigue-related heavy vehicle’ (Heavy Vehicle National Law (Queensland) s 7.  The driver of a fatigue-related heavy vehicle, working within 100km of his or her base, is engaged in 100km work (s 289).  In NSW a driver engaged in 100km work is not required to ‘to keep a national driver work diary’.  This exemption applies until 9 February 2016 (New South Wales Work Diary Exemption for 100km Work Under Basic Fatigue Management or Advanced Fatigue Management (Notice) 2014 (No. 1)).

But, ask my correspondent, what if we are for example returning from a task force greater than 100km away?  The answer is also find in the Heavy Vehicle National Law that has an emergency services exemption.  Section 356 says:

(1) A person who is acting for an emergency service and who has time-critical duties on the way to, or during, an emergency is exempted in the course of carrying out the duties from compliance with Division 2.

(2) A person who is acting for an emergency service and who is returning from attending an emergency is exempted from compliance with Division 2 if the person reasonably believes the noncompliance does not present an unreasonable danger to other road users.

(3) A person who is acting for an emergency service is exempted from compliance with Division 2 under subsection (1) or (2) only if, at the relevant time, the person complies with any guidelines regarding the management of fatigue issued by or on behalf of the emergency service or an authority responsible for oversight of the emergency service.

Section 356 lies within Division 8 of Part 6.4 ‘Requirements about record keeping’.  Division 2 of Part 6.4 contains the ‘Work diary requirements’.  In short a member of the emergency services is exempt from the requirement to maintain a work diary provided they are complying the emergency services, in this case Fire and Rescue NSW’s, own fatigue management arrangements.     

(For the emergency services exemption from the need to comply with the ‘Requirements relating to work time and rest time’ (Part 6.3) see s 265. The exemption in s 265 is in the same terms as the exemption in s 356, above).

This question comes from a member of South Australia’s Country Fire Service:

During the recent Sampson Flat fire, many resources were dispatched to the fire under Priority 1. As a consequence, a number of appliances were detected by traffic cameras exceeding the posted speed limit and others failing to stop at a red traffic signal.

As is CFS usual practice, if the driver is attending a Priority 1 call, CFS seeks a waiver of the fines imposed through invoking Rule 306 of the Australian Road Rules which allow for the exemption from provisions of the Australian Road Rules for drivers of emergency vehicles under caveat.

However, CFS also has its own Doctrine regarding driving of emergency vehicles and under Chief Officer’s Standing Order (COSO) 8, the driver of a CFS vehicle is permitted only to exceed the posted speed limit by a maximum of 20kph and must stop momentarily at all red signals and obey school crossing speed limits.

In the process of dealing with the breaches detected through the traffic cameras, the Regional Commander is advised where there were also matters of speeding in excess of the allowable limit under COSO 8 and detected failure to stop at red lights etc. The Regional Commander then discusses these breaches of COSO 8 with the relevant Group Officer and requires them to bring the breach of COSO 8 to the attention of the individual driver and counsel that driver against further breach, or risk disciplinary action against the individual under Regulation 22 of the Fire and Emergency Services Act.

In the process of undertaking this administrative action, one Group Officer has inferred that the exemption for drivers of emergency vehicles constitutes grounds for exemption from the CFS COSO 8.

From a strictly legal perspective, can you advise if a CFS internal policy or procedure is binding on CFS volunteers and staff, and where specifically focussed on driver instruction for CFS volunteers and staff, is not subservient to the Australian Road Rules?

For a similar question, with a similar answer, see also ‘Wearing seat belts with the NSW Rural Fire Service’ (January 22, 2015).

The exemption in the Road Rules says that the driver of an emergency vehicle is exempt from the other road rules provided that ‘(i) the driver is taking reasonable care; and (ii) it is reasonable that the rule should not apply’ (Australian Road Rules (SA) r 306).  In deciding whether or not a particular rule should be applied to the CFS driver, a magistrate would ask ‘what does the CFS say’?

The CFS says, inter alia, that a driver must ‘Stop at the stop line/stop sign with all warning devices still operating’ (COSO 8, p 25).  Rule 67 of the Australian Road Rules says:

(1) A driver at an intersection with a stop sign or stop line, but without traffic lights, must stop and give way in accordance with this rule.

(2) The driver must stop as near as practicable to, but before reaching—

(a) the stop line; …

(3) The driver must give way to a vehicle in, entering or approaching the intersection …

A magistrate may well find that there is no exemption from rule 67(2), that is the obligation to stop should apply to everyone including the driver of an emergency vehicle, but that rule 67(3) does not apply so the driver of a CFS vehicle commits no offence if he or she does wait for another driver to pass, but may proceed if it is safe to do so.

Equally COSO 8 at p 26 (and clearly it’s not page 26 of COSO 8, the COSO must have come from a book of ‘Standing Orders’ but that is the page number at the bottom of the copy I’ve been provided) says ‘SACFS vehicles must not be driven more than 20kph over the posted speed limit’.   Rule 20 of the Australian Road Rules says ‘A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving’.   To drive 1km/h over the limit is to drive contrary to the rule so a magistrate would probably find that it is reasonable that rule 20 does not apply to the driver of a CFS vehicle proceeding ‘Priority 1’ but he or she may well take the view that the COSO is evidence that if one is proceeding by more than 20km/h over the limit, the driver is not taking ‘reasonable care’ so the exemption under rule 306 does not apply.

That is one consequence.  The other is the disciplinary action referred to.  A member of the CFS who

… fails to comply with— …

(ii) a provision of a code of conduct for SACFS published by the Chief Officer; or

(iii) a direction or order given to the person as a member of SACFS by a person with authority to give that direction or order; …

is liable to disciplinary action’ (Fire and Emergency Services Regulation 2005 (SA) reg 22).

Even if a magistrate accepted that driving contrary to COSO 8 was reasonable in the circumstances so the exemption under r 306 could be applied, that would be no defence to action under this regulation.

Conclusion

The Australian Road Rules are just that.  They are

• Australian so they are written in general terms so that each state, and within each state, each emergency service can make their own rules to give effect to them; and
• Road Rules – they apply to the road, not internal matters.

As I said in my post on the RFS (‘Wearing seat belts with the NSW Rural Fire Service’ (January 22, 2015)) ‘An SOP that is more restrictive than the regulation is no problem. The passenger [or driver] who … complies with the regulation would still have a defence against a traffic ticket, but could be subject to internal discipline for failing to comply with the RFS SOP.’

Equally in South Australia, a driver who complies with r 306 may have a defence to a traffic ticket but could still be subject to disciplinary action for failing to comply with the Chief Officer’s Standing Order.  As noted above, however, I would imagine that failure to comply with the order in the circumstances described would also be relevant for a magistrate when deciding whether or not a particular rule should be applied to the driver of a CFS appliance or whether the driver was taking ‘reasonable care’.

In short the exemption in rule 306 is not also an exemption from COSO 8.  It is more likely that failure to comply with COSO 8 will also mean there is no exemption under rule 306.

There have been a number of recent reports of increasing violence against NSW paramedics – see:

• Eamonn Duff, ‘Ambulance officers under attack: judges accused of failing paramedics’, SMH Online, 9 February 2015;
• Eamonn Duff, ‘“I thought I was about to die” – paramedics under attack’, SMH Online, 8 February 2015;
• Eamonn Duff, ‘Ambulance officers under attack’, SMH Online, 8 February 2015; and
• Lane Sainty and Ben Grubb, ‘‘George Street is an extremely dangerous place': paramedics’, SMH Online, 2 February 2015.

What I am about to say does in no way condone violence toward paramedics but I do want to put the law in context, particularly as reported by channel 9.   In the story that appeared on 8 February 2015 – ‘We are not just a uniform’: Sydney’s paramedics demand better protection from violent patients’ – it was said:

Amendments to the Health Services Act now provide paramedics with greater protection against physical, verbal and racial abuse, with offenders now facing up to five years jail.

My problem with that comment and many of the other suggestions is the idea that it is the law that will provide protection.  In Kable v DPP (1995) 36 NSWLR 374, Mahoney JA said:

One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed. If it be clear to demonstration that A proposes tomorrow to murder B, the law does not authorise the arrest or detention of A to prevent him doing so. A may, of course, be watched. He may, if his intention becomes a threat or an attempt, be arrested to answer the charge that he has so threatened or attempted to murder. But he may not be arrested or detained merely because he intends murder… the fact that A firmly intends to murder or to do violence to B tomorrow does not provide a basis as such for the arrest and detention of A so as to prevent that violence being done.

That’s not exactly on point but is intended to demonstrate that the law is reactive, not proactive and that is the price we pay for us all to be at liberty.  We can’t be arrested and detained for what we might do, but what we have done.  That is at least the fundamental principle of the criminal law.  Legislatures can move away from that but that is when they face criticism for example allowing detention without trial.  If the state can start to lock people up be3cause of what they might do, or because of what they think the liberty of all is at risk.  In my book, Hayes and Eburn’s Criminal Law and Procedure in NSW (4th ed, Lexis/Nexis, 2013) (co-authored with Rod Howie and Paul Sattler), I argue (at p 12) that the principal role of the criminal law is not to protect us from criminals (as it’s very bad at that) but from the state.

The ineffectiveness of the criminal law in addressing the factors which keep the crime rate in our society more or less constant does not mean that the criminal law is ineffective in protecting the liberty of the citizen. The criminal law and the law of criminal procedure stand between the citizen and the state to ensure that the state (the police and the government) does not take action against, or impose a punishment on, a citizen except according to law. The law, including the criminal law, ‘provides a shield for individuals from arbitrary state action’.

… it is a fundamental tenet of our system of justice according to law that no person is to be found ‘guilty’ of a crime and subject to punishment unless that guilt is based upon the law. This principle has been handed down since at least 1215, when Magna Carta  provided that:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

To no one will we sell, to no one deny or delay right or justice.

In the United States, the Fifth Amendment to the Constitution states:

No person shall be deprived of life, liberty, or property, without due process of law .

It is a fundamental principle that guilt or innocence is determined by law, not by moral outrage, likes or dislikes… The criminal law and the processes of the criminal courts stand between the state and the citizen to ensure that these rules are observed.

So let’s put that in context.  The Health Services Act 1997 (NSW) s 67J says:

(1) A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

(2) A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.

The first point to note is that the offence under both subsections only arises where a person intentionally obstructs the officer who is providing care to ‘another person or persons’, it does not apply to the patient.  Many of the reports listed above refer to violence by the people being treated; they are not caught by these offences (though they may well be guilty of other offences).

Let us focus in more detail on s 67(2). To be guilty of this offence the accused must:

1. Engage in an ‘act of violence’;
2. with the intention of
   1. obstructing or
   2. hindering
3. an ambulance officer who is
   1. providing or
   2. attempting to provide
4. care to another person.

To be found guilty of the offence the Crown must prove all those elements (or one of them were they are divided by an ‘or’) and that level of proof must be ‘beyond reasonable doubt’.  Subsection 67(1) also refers to ‘intentionally’.  If one is acting with ‘intention’ then one is trying to achieve the objective, in this case of obstructing or hindering in the delivery of care to another person.

Ambulance officers get called to situations that can be the worst day of someone’s life.  Equally they get called to all manner of incidents and events that arise because the people are ill or injured and those illness and injuries, mental and physical, self induced or otherwise, can affect their capacity to rationally form the relevant intention.   They deal with all manner of people from the very sensible to those that would not be so described.

A person who is affected by alcohol, drugs, mental illness, developmental disability, the consequences of their illness or injury may well be violent but they may not know what they are doing or have the necessary intention.    A person who is delusional and paranoid and thinks the ambulance officers are there to do harm, is not acting contrary to the law stated regardless of the consequences.

The criminal law does not punish the consequences but the mental state of the offender.  A person who fails to pay due care and attention whilst driving and who is guilty of the offence of Dangerous driving occasioning death (maximum penalty 10 years) is considered less of a criminal than a person guilty of attempted murder (maximum penalty life imprisonment) even though the dangerous driver has caused death and the would be murderer did not.    One is an negligent accident, the other a deliberate attempt at harm.

To return to the Health Services Act that provision first of all provides no protection because the acts in question have to happen before the Act has any application, that is it only applies after the paramedic has been assaulted.    Further offenders do not generally engage in a cost benefit analysis where they decide what the penalty for assaulting a paramedic might be and consider whether or not it’s worth the price.  Putting up the penalty makes no difference to an offender who doesn’t think about what the penalty might be or who can’t believe they’ll be subject to it because, in their world view, their actions are justified.

And that is the point I want to make, the claim ‘Amendments to the Health Services Act now provide paramedics with greater protection…’ is rubbish.  The amendments mean that those convicted of that particular offence are subject to that maximum penalty.  The reason that offence is there is about obstructing or hindering paramedics.  Deliberate acts of violence could, and are, dealt with under other offences, such as assault, assault causing actual or grievous bodily harm, wounding with intent to wound etc.

That then brings up the question of penalty.  First of all this is at the minor end of offences.  As just noted the key to this offence is an intention to hinder or obstruct the paramedics in the care of another.  If the allegation is that they paramedics were deliberately assaulted for other motives, or injured, or wounded, or their lives threatened, the police should bring charges under those other offences. If they don’t the court can’t sentence for those things, only for the offence charged.

One see’s lots of discussion on relevant ambulance and SES discussion pages about why people call them for things that are not an emergency (one doesn’t see that so much with fire brigades, I guess a fire is a fire).   A leaking roof or a minor injury particular in either case when casued by the caller’s own neglect or stupidity, may not be seen by the emergency services as an emergency as they deal with so much more.  But for the caller it’s the biggest emergency in their life at that time.  The same with the criminal law.  For the person who’s been threatened or assaulted it’s the worst crime they’ve seen.  For the magistrate who’s seen everything from ‘offensive language’ to horrific child sexual assault and murder, it’s one more of the lower end crimes.

When it comes to sentencing a court is required to have regard to issues of:

• specific deterrence – what will convey the message to this person not to do it again
• general deterrence – what will convey the message to the general public not to do something similar
• punishment and
• retribution.

The problem with general deterrence is most people who need to be deterred will never know what happened or why nor will they, when they go to commit an offence, think ‘gee the paper said the last person who did this got sent to gaol – so I’d better not do it’.

In sentencing a court has to take into account the offenders personal circumstances.  A fine of $200 may be nothing to some, a huge amount to others.   People are unlikely to go to gaol for a first offence because it is expensive, ineffective and increases rather than decreases the chances of reoffending.  Alternatives are available because they’re more effective.  People who enter a plea of guilty get a discount as they are acknowledging they did the wrong thing and saving the court and the state and the victim’s time and money.    The sentencing process is very complex and whilst I can’t point to the survey’s there have been surveys that report where people are given all the facts they are far less outraged by the sentence imposed than they were when they read about it in the paper.

Conclusion

That ambulance officers are exposed to a risk of injury is an unfortunate reality of their job.  That they are exposed to deliberate violence is completely unacceptable, but not all injury is the result of deliberate violence.    Physical contact by people affected by their illness or injury (including drug and alcohol overdose) will not be deliberate violence if the person is so affected that they don’t understand the situation they are in or are not acting with the prohibited intention or acting voluntarily.  This is not a loophole or ‘Using alcohol or drugs as an excuse’ (Eamonn Duff, ‘Ambulance officers under attack: judges accused of failing paramedics’, SMH Online, 9 February 2015).  If the person didn’t intend to assault the victim (paramedic or otherwise) then they’re not guilty of the offence.

If criminal law were a sufficient deterrent then it would have worked years ago, but neither the death penalty nor transportation to Australia has ever stopped crime.   The issue is cultural and behavioural but relying on the law as the solution is to use the relevant example of relying on the ambulance at the bottom of the cliff rather than the fence at the top.

One of my favourite quotes comes from Tom Wolfe’s The Bonfire of the Vanities (1987, Random House, London).  In that book the District Attorney (the DA) or what we would call the Crown Prosecutor is concerned about the fact that they only prosecute the poor, uneducated and underprivileged.  He longs for the chance to prosecute the Great White Defendant.  When thinking about those before the court he says (at p 111):

But the poor bastards behind the wire mesh barely deserved the term criminal, if by criminal you had in mind the romantic notion of someone who has a goal and seeks to achieve it through some desperate way outside the law.  No, they were simpleminded incompetents, most of them, and they did unbelievably stupid, vile things.

Unfortunately the work of a paramedic brings them into contact with many ‘simpleminded incompetents´ and the consequences of the ‘unbelievably stupid, vile things’ that they have done and this in turn puts them at risk.  Nothing I’ve said is meant to downplay that risk, the stress on the paramedics or the unacceptable nature of the conduct complained of.  What it is meant to do, is put the law into context to expain why it is not the law that will stop that violence.  It may see some people punished, after the event, but cannot actually protect paramedics from violence.

The post answers the last two questions from my RFS correspondent (see ‘Response’ driving with NSW RFS’ (February 2, 2015)). These two questions relate to hazard reduction burns. My correspondent asks:

4. Hazard reduction planning is a big part of the work undertaken within the RFS for both salaried and volunteer members. I understand the Service is required to develop Bush Fire Risk Management Plans that set out how the BFMC plans to reduce bushfire hazard.  Is there a requirement for the RFS, who is not a landowner of any substance, to actually perform hazard reduction burns, especially on private lands? As a minimalist approach could this be a mere letter advising the resident the hazard exists and to mitigate it, rather than the full production resources required to plan and execute broad-acre burning?

5. On a similar theme, planning for hazard reductions are generally done conceptually utilising available topographic and aerial maps.  The general area to be burnt, including cut offs are identified in this process. In the course of detailed planning a resident in the proposed burn area proves “uncooperative”, making the hazard reduction process more difficult (additional resources required for preparation and execution to cater to resident requests/demands). As a result, the burn is “shelved” (too hard basket) and a different area with more supportive residents is selected for treatment.  In leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area, are we still acting “in good faith” per s.128 Rural Fires Act?

Some theory

Australian government is, at least in theory, divided between the executive, the legislature and the judiciary. The legislature, that is the Parliament, can make laws that the executive, all the government departments, must implement. The judiciary determine issues where there is a dispute over what the law requires.

In the United States the division between the legislature and the executive is very clear. The President is the Chief Executive Officer and he or she appoints the departmental heads (the Secretary’s) to run the business of government. The legislature (the Congress) may pass legislation that directs the executive and can compel the executive government to do, or not do, certain things.

In Australia the distinction is much less clear. In Australia the executive power of government is vested in the Queen, to be exercised by her representatives in Australia who are the Australian Governor-General and the state Governors. The Governors and Governor-General are appointed by the Queen on the advice of the relevant Premier or the Prime Minister. By convention, the Governors and Governor-General act on the advice of their Ministers so even though an Act needs Royal Assent, which implies a power of veto, no Governor or Governor-General will ever veto an Act passed by Parliament.

Further, in Australia, the Ministers who head up the government Departments are all members of Parliament and more so, members of the party with the majority in Parliament. One can imagine why a Republican dominated Congress may want to give directions to a Democrat Administration, but those issues do not arise in Australia.   If the Ministers, in their capacity as legislators, pass legislation that says their department must do something, they are in effect making a rod for their own back. If they must do something the government has to make sure they are adequately resourced and it ties their hand when it comes to priorities. If they must spend resources on one thing, they can’t be sent to deal with some other more pressing problem.

Further, and less cynically, the legislature doesn’t actually want to tell those that have to perform the functions of government how to do their job. In this context it’s the Commissioner who has to decide how the RFS will do the various tasks assigned to it, of which hazard reduction burns is only one.   If the law said the RFS must do them then they may have to divert resources from fire fighting. The aim of the legislation is therefore not to tell the RFS what it must do but to empower the Commissioner and to give him or her all the tools necessary to allow them to do the job.

We can now turn to the Act and see what it says.

Rural Fires Act 1997 (NSW)

Each local government area is to have a Bush Fire Management Committee (s 50). The Committee is to prepare a Bush Fire Risk Management Plan (s 52) that deals with the reduction of bush fire hazards (s 54). The Commissioner of the RFS may conduct an audit to determine how plans are being implemented (s 62A). There is little detail of what must be in a plan. Taking the Gosford District Bush Fire Risk Management plan as an example. it identifies various areas where hazard reduction burns are part of the management plan but responsibility for those is given to DECC (formerly the Department of Environment and Conservation, now Environment and Heritage), not the RFS. It is possible however that there would be some plans that impose an obligation upon the RFS and in that case there may be an obligation to perform the agreed tasks.    Without a particular plan to comment on it’s not possible to reach any conclusion in that regard.

We can look at hazard reduction burns more generally. The RFS has the power to do them. An ‘authorised person’ may enter unoccupied Crown land to carry out bush fire hazard reduction work in accordance with the requirements of the relevant bush fire management plan (s 65).   A hazard management officer may give a notice to a land owner requiring that owner to undertake hazard reduction work (s 66) and if the owner does not comply with the notice ‘the Commissioner may … enter on the land and carry out the bush fire hazard reduction work …’ (s 70).   The Commissioner may also carry out hazard reduction work on both public and private land, if the owner has not done the work required by a bushfire management plan, has not complied with their duty to reduce bushfire risk or in the case of public land, the authority has not complied with a direction by the Commissioner (s 73).

All of those provisions say that the Commissioner ‘may’ do those things, not ‘must’.   Again it makes sense; if the law said the Commissioner ‘must’ do those things then the Commissioner would have to act on every hazard, but the RFS does not have the resources to do that. They have to prioritise risk and taking action on one hazard means another has to go untreated. The Commissioner also has to consider the most effective remedy, in one case it may be to enter the land and conduct a burn, in another, a visit by the local brigade to explain to the land owner the problem may be sufficient. The legislature does not want to tie the Commissioner’s hand so the power is given, but not the obligation.

Common law

The common law may impose an obligation. Here a person may sue because they are affected by the decision. The obvious example is a landowner whose property is burned out when fire spreads from their neighbour’s property, where there was a known risk and no-one did anything about it even the RFS is given powers specifically to reduce risk.

This is reminiscent of the decision in Pyrenees Shire Council v Day (1998) 192 CLR 33. In that case the defendant council was liable for damage done to a property. The Council was aware of a defect in a chimney. They served a notice on the owner requiring that the defect be rectified but took no further action. The property was destroyed when new owners, unaware of the defect, used the chimney and caused a fire in the roof.

The council was liable as it had begun to take action, in this case under the Local Government Act 1958 (Vic), to deal with the issue. It had served a notice so was well aware of the problem. The Council had statutory powers to resolve the issue, given noncompliance the council could have arranged rectification work and billed the owner. No-one else had the power to deal with the issue. The new owner was vulnerable in that no amount of inspection would have revealed the defect and the council did not advise that the property was the subject of a notice when they made the normal enquiries that a prudent purchaser makes before buying a property. In effect after serving the notice the council did nothing more.

Where the risk is overgrown vegetation the vulnerability isn’t quite the same as the risk may be obvious so there may be things the neighbour can do to reduce their own risk, but I think the principle would be the same. Where the RFS is aware of the risk, particularly if they have served a notice requiring hazard reduction work, and then fail to follow up and fail to take ‘reasonable action’ to ensure compliance, there could be liability. (For a related post see ‘Liability for failing to reduce a fire hazard in Victoria’ (January 7, 2015)).

What action is reasonable must take into account a myriad of factors including an assessment of the likelihood of the danger and how bad it will be and other competing risks. In RTA v Dederer (2007) 234 CLR 330 the NSW Roads and Traffic Authority were not liable when a rock was thrown from a bridge and killed a passing truck driver. Although the RTA was aware of the risk of things being thrown from bridges they had done a risk assessment and although this bridge was due to have remedial work done, it was not at the top of the list. Just because something is assessed as having a low probability of occurring does not mean it won’t occur, and a high probability event may still never happen. The fact that it was this bridge that was used to drop rocks did not mean their risk assessment, and therefor their treatment priorities were wrong. Equally the RFS has to decide what hazards to attack, in what order. If the hazard occurs that is not proof of negligence. Even, taking into account all the circumstances, it might be possible to establish negligence by the RFS if they fail to exercise their statutory powers, even though they are phrased as ‘may’, not ‘must’.

To answer question 4:

Is there a requirement for the RFS, who is not a landowner of any substance, to actually perform hazard reduction burns, especially on private lands?

There may not be a statutory obligation to do so, but if the RFS is aware of the risk a common law duty could arise in the right circumstances. There has to be more than mere knowledge of the risk and has to take into account all the circumstances including the size and nature of the risk, the vulnerability of others and competing demands.

As a minimalist approach could this be a mere letter advising the resident the hazard exists and to mitigate it, rather than the full production resources required to plan and execute broad-acre burning? 

The legislation actually anticipates that. The power to do a burn on private land is dependent on a notice being served (s 66) and a failure to comply with that notice. Further if more gentle persuasion is going to ensure compliance by a land owner there’s nothing to stop the RFS trying that option first.

Question 5 is related and is based on an example where objections by landowners make the burn more difficult than it would be with their cooperation. My correspondent asks:

In leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area, are we still acting “in good faith” per s.128 Rural Fires Act?

The answer is it may or it may not be. Good faith requires an honesty of purpose, a conscious effort to fulfil one’s obligations (see Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701; Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45; Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408).

The RFS has may competing demands. If it has to assess how best to allocate its resources then the attitude of the “uncooperative” resident may be relevant. If their response means that the burn will not be as effective that would be relevant. If their objection is that the burn will cause them damage that may also be relevant.  Another question would be who is the burn meant to protect? If it’s the “uncooperative” resident then that’s a factor to be taken inot account but if its others then the resident’s attitude is of less significance (see “No liability for damage to grapes caused by WA hazard reduction burn” (25 April 2012)).

If the decision to focus on the alternative risk is made with a genuine consideration of the size of the risk, who is at risk, their level of vulnerability, how effective would be the work etc then the attitude of residents may well be relevant. If for example the RFS is going to do the work on Crown land but to be effective it also needs private landowners to take action on their land, and the resident has indicated that he or she won’t do so, then the RFS would have to consider serving the appropriate notice, allowing the appropriate time, dealing with appeals etc before they could do the work on that private land. In those circumstances it would be ‘good faith’ to say ‘we’ll defer that burn until that process has worked through and, in the meantime, we’ll go and deal with another hazard’.

If, on the other hand, the decision is motivated by a personal concern of ‘if I do that this person is going to make my life hell and I don’t need it, and bugger them, I’ll let their property burn because they are being difficult’ then that would not be an example of acting ‘in good faith’.

Answer to question 5

Leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area does not establish whether or not that decision was made in good faith or not. The real question was what was going through the mind of the decision maker. If they were honestly weighing up all the relevant factors including size of the risk, probability of occurrence, who was vulnerable, what other competing demands were there etc and came to a conclusion that it would be a more effective use of resources to focus on the other risk, that’s good faith.

If the decision is based on ‘what’s easier for me’ then it wouldn’t be.

See also:

• Damned if you do, damned if you don’t – what to do about personal hazard reduction (October 22, 2013)

• Duty to warn NSW landowners of pending hazard reduction burn (December 7, 2014)

This is another question about the scope of practice for a medical professional when acting as a volunteer. I have answered similar questions for nurses (‘Volunteer nurses and their skills’ (December 12, 2012)) and paramedics (‘‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic?’ (March 28, 2013) and ‘ALS Paramedic as volunteer with St John’ (WA) (April 5, 2014)). Today we are addressing the position of a doctor who is also a life saver with Surf Life Saving NSW.

My correspondent writes:

I am a doctor working with the NSW Air Ambulance on the rescue helicopters. Due to this I am well trained in resuscitation and critical care medicine. I also volunteer for my local Surf Life Saving Club and this is where my question comes from.

I was on patrol … (as a life saver) when a lady was dragged out of the water unresponsive and in cardiac arrest. The life savers (myself included) started CPR and managed to regain spontaneous circulation. Lifeguards and Paramedics arrived and the lady was then taken to hospital.

As you can imagine with the involvement of 3 different organisations that never train together it could have gone more smoothly. I presented the resuscitation at a meeting of my Ambulance colleagues. This presentation and resuscitation brought up a few questions that I am hoping that you will be able to help us with.

1 – As I was responding as a Life Saver (in their uniform) am I limited to what I can do medically by my Life Saver training or can I undertake procedures that I have been trained to do as a critical care/pre-hospital doctor?

2 – If I perform a procedure that I am skilled at when my Air Ambulance team and equipment is present but do it with equipment from the road paramedics (or other organisation) is that legally ok?

2a – Do I need to have the same equipment/monitoring that I would have “normally” or can I make do with what I have if I believe that it is in the patient’s best interest?

One big problem that I faced was that it was difficult to prove that I am a rescue helicopter doctor (especially whilst wearing a Life Saver uniform). This meant that I was not always listened to and things were not done as I would have liked and I found it difficult to influence the outcomes at times

3 – In that situation if things are not done correctly by others within the team (not me) but I do not intervene what is my liability? Obviously if it was a life ending situation I would step in etc. but if it is say making sure that monitoring or oxygen were on the patient for transfer from the beach to the road ambulance?

4 – Do I have a responsibility to lead and control the situation as I would in my day job as I am responding for an official “rescue” organisation (Surf Life Saving) but not the one that I work for? If you know what I mean!?

5 – Is there a “Good Samaritan” law in Australia and if so what does it actually mean?

1 – As I was responding as a Life Saver (in their uniform) am I limited to what I can do medically by my Life Saver training or can I undertake procedures that I have been trained to do as a critical care/pre-hospital doctor?

To answer that question one has to consider how the question might arise. There are three ways that I can think of: the most likely is that the patient has died and the coroner is holding an inquest; the second is that there has been some allegation of negligence that has contributed to a poor outcome; the third is that Surf Life Saving is seeking to take some action for the doctor moving beyond the scope of Surf Life Saving’s training.

Let me work on the second of those situations even though I think it is the least likely.   Imagine you are the family of the deceased and you think the Surf Life Savers were negligent in the performance of their task. What could that negligence be? Either that they did not do something that they should have done.

If the allegation is that they did not do something that they should have done, and in the course of the process it is discovered that one of the life savers was a very experienced, well trained emergency rescue doctor (not a GP who might not have much emergency experience, but a doctor who works on rescue helicopters) and that doctor recognised a need for some care, but did not give it, the case is a lay down misere (ie ‘An absolute certainty’).

What if the allegation is that they did something they should not have? Eg a doctor treated with skills beyond that of a Surf Life Saver. The question is how could providing that extra care have contributed to the damage or poor outcome.   If the allegation is that the life savers were providing poor treatment and again it turns out there was an experienced doctor with particular expertise in emergency medicine, it would be easy to say that the doctor should have stepped in to correct the treatment by others.

The critical issue that must be kept in mind is the patient’s best interests. Not Surf Life Saving’s interests, not the doctors and certainly not the insurers. In the case of a patient who is unconscious treatment is justified by the doctrine of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

The basic requirements, applicable in these cases of necessity, that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

That allows treatment that is reasonable in the circumstances and in the best interests of the patient. Withholding care that the doctor understands is required is not acting in the patient’s best interests.

Imagine now, that the case is before the coroner; what would be the reaction if a doctor explained that he or she could have taken action to save a patient but didn’t because they were acting as a surf lifesaver and therefore, somehow, couldn’t apply the skills they had?

If the matter is before Surf Life Saving and they seriously say ‘a doctor can’t provide care that is necessary and they are competent to provide because it’s beyond Life Saver training’ then as the doctor would have to resign. Complying with that direction would not only compromise your patient it would also compromise your professional registration.

Ultimately what cannot be denied is that a medical practitioner has the knowledge and skills that he or she has. It will be different depending on their work and experience but what they know, they know. A doctor doesn’t stop being a doctor when he or she leaves work; they remain a registered health professional with all their skills and knowledge.   On this example the patient needs care, the doctor can recognise the need, is capable to provide that care and has taken on, albeit as a life saver, to provide some care for that person. There is no legal barrier to providing that care. And if Surf Life Saving say you can’t do it, you would have to just step out of that role and do it anyway because of your professional duty to the patient whose care you have taken on.

Answer: You are not limited to what I can do medically by my Life Saver training. Not only can you, but you must undertake procedures that you have been trained to do as a critical care/pre-hospital doctor with the understanding that you are on a beach and without the equipment you carry as a critical care/pre-hospital doctor so you can only do what you can do in the circumstances and with the resources at hand.

2 – If I perform a procedure that I am skilled at when my Air Ambulance team and equipment is present but do it with equipment from the road paramedics (or other organisation) is that legally ok?

Answer: It’s OK if the ambulance paramedics allow you to use their kit. As a doctor you can use and administer the various drugs so there isn’t the issue that paramedics have where there authority is given by their employer to be used during their employment. As for other gear in an ambulance, there is no need for a licence to use any of it. If you know how, and the paramedics are willing to let you, you can use their kit.

2a – Do I need to have the same equipment/monitoring that I would have “normally” or can I make do with what I have if I believe that it is in the patient’s best interest?

That is a clinical question. There may be some treatment or care that should only be provided in certain circumstances that do not apply on the beach. Perhaps as a doctor you would perform a tracheostomy if you had the kit that is carried in the helicopter and an appropriate assistant. In that case you would not try to do it on a beach with a pen knife.   If a drug should not be administered without some monitoring equipment at hand then it should not be administered.

Answer: In any allegation the circumstances have to be taken into account. The beach is not the ideal clinical practice setting so the question will always be whether the risk outweighs the potential benefit.

3 – In that situation if things are not done correctly by others within the team (not me) but I do not intervene what is my liability? Obviously if it was a life ending situation I would step in etc. but if it is say making sure that monitoring or oxygen were on the patient for transfer from the beach to the road ambulance?

Answer: It depends on the ‘others’ are. If they are your Life Saving colleagues, who presumably know you are a doctor, and you are part of their team, then I would think Surf Life Saving would be liable for any negligence . Surf Life Saving has an obligation to take reasonable care of the people it comes into contact with. If a member of their team is providing poor quality care, another member knows it but does nothing about, that has to be negligent.

If the negligence is by the Lifeguards (ie life savers paid by the council to patrol the beach) or the ambulance service the situation is different. You are not in control of them and certainly with respect to the paramedics, once they are on scene they are the statutory authority responsible for transporting the patient to hospital; unless you’re prepared to go to hospital with them, you are going to have let them take control of the care of the patient (see ‘Step aside – I’m a doctor’ (October 17, 2014)).

4 – Do I have a responsibility to lead and control the situation as I would in my day job as I am responding for an official “rescue” organisation (Surf Life Saving) but not the one that I work for? If you know what I mean!?

Answer: That depends on the command structure within your organisation and your role within it. In terms of the clinical care I would suggest you have a responsibility if you believe that the care being provided by your colleagues is sub-standard. If they are doing CPR and there is nothing you can add, you can stand back in order to let them gain the experience. If there is an error in their technique, use the chance to train them.   You do not have a responsibility or more importantly the authority to take control of the response of the other agencies.

5 – Is there a “Good Samaritan” law in Australia and if so what does it actually mean?

No and yes. No, there is no Australian law but yes, there are good Samaritan laws in each State and Territory. In New South Wales the Civil Liability Act 2002 (NSW) s 57 says

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

A ‘good samaritan’ is ‘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’ (s 56).

What it means is that someone who steps up to help and acts from a genuine desire to help the person in need is not liable for their actions even if those actions are negligent and cause harm.  If there is someone who is vicariously liable for them that remains. That is an interesting subsection, vicarious liability usually only applies where the person is employed and acting in the course of their duties, but if it’s their job to help, then they are not a good Samaritan.  The provision could apply here where the Life Saver is a volunteer and Surf Life Saving could be vicariously liable for any alleged negligence but that would seem to conflict with the volunteer protection provisions, below.

It is arguable that a member of Surf Life Saving is not a good Samaritan. They are on patrol as part of their duties and they do get reward from their service.   As I have said in an earlier post dealing with St John ambulance volunteers (‘Who to treat? A question for St John first aiders’ (June 30, 2013)):

This section is not intended to cover an organisation such as St John that is there holding itself out as professional and skilled in the area. St John gets significant reward for doing this work, that is it reason for being and it is a large albeit not for profit organisation. The volunteers also get rewards such as social standing, training, access to events etc. The status and standing that comes with being a volunteer can be quite significant (see Castle v Director General State Emergency Service [2008] NSWCA 231). Further the medical crisis at a public event where St John is on duty is not, or should not be an emergency for them, that is what they are trained and there for, that is day to day business.

In my view the relevant protection is not in Part 8 but in Part 9 dealing with volunteers.

You can substitute the words ‘Surf Life Saving’ for St John to the same effect.

Part 9, s 61 says ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work’. The effect is that if a person is a member of an organisation like Surf Life Saving and they are performing their duties they cannot be personally liable for any negligence.  Part 9 does not say that even though the volunteer can’t be liable, the organisation can be.  In fact in a provision that is unique to NSW, s 3C of the Act 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’.  That would suggest that if a volunteer is negligent and injures someone both the volunteer, and the organisation they volunteer for are protected leaving the injured person with no remedy. For that reason a court may be quite willing to find that the relevant protection is found in the good Samaritan provision as that would protect the volunteer but still give the injured person a remedy.   The matter is yet to be tested and it should be noted that Queensland has had good Samaritan law since 1974 and the laws have never been tested; that is good samaritans don’t get sued.

Summary

A doctor is a doctor and knows what he or she knows, and can do what he or she can do, whether they are at work or not. The practice of medicine is much more unregulated than people believe. One can’t call oneself a doctor unless you are a doctor but in terms of skills and technique there is no list of what is or is not something that only a ‘doctor’ can do (except perhaps write prescriptions).

If a doctor is on duty with Surf Life Saving then he or she has the skills they have. If a person needs their care the expectation of the law and the community will be that they will do what they can in the best interests of that person. That does not requite them to have all the gear they might have if they are at work, all the circumstances have to be considered, but if there is something that they can do, and it would help, not doing it because ‘Surf Life Saving haven’t provided training’ would not be justified. If the concern is that ‘Surf Life Saving aren’t insured’ then the concern is not the patient’s best interests, and that represents unethical conduct and may suggest that the action is not being taken ‘in good faith’.

Do what you can do to help.

Claims over the Black Saturday bushfire that devastated Marysville have now been settled, subject to court approval (Steph Ferrier, ‘Marysville bushfire class action: Black Saturday bushfire victims to get $300 million payout’ ABC Online, 6 February 2015).

According to the report, ‘AusNet will pay more than $260 million, maintenance company Utility Service Providers will pay $10 million and the Victorian Government will contribute $29 million.’  Even though they are paying in excess of $260 million AusNet is maintaining its position that it is not liable for the damages: ‘AusNet Services maintains that there was no negligence on the part of AusNet Services which caused, or contributed to, the Murrindindi bushfire, nor any of the other Black Saturday fires.”

So why settle?  There was a $494 million dollar settlement of the claims arising out of the Kilmore East-Kinglake fire (see Settlement in Black Saturday litigation is approved (December 23, 2014)).  Out of that settlement $60 million was to go on the plaintiff’s legal costs.  If the matter had gone to trial it was expected that it would take 5 years.  It’s not hard to see that running the trial would have cost all the parties more than the actual settlement, so if it’s a choice of paying the claimants $494 million (less $60 million) now, or paying a similar amount to the lawyers to keep fighting with no guaranteed result, you can see why it’s a sensible decision to settle now rather than let the matter drag on with no benefit to anyone.

I reiterate too, that the settlement will not send any of the defendants, or their insurers bankrupt.  It’s just part of the cost of doing business – see (see ‘Bushfires; the price we pay for electricity’ (May 20, 2014)).

Another question from my RFS volunteer correspondent (see ‘Response’ driving with NSW RFS’ (February 2, 2015)) but for this one, the answer is more cross-jurisdictional:

Following on from the West litigation, is there still any positive duty to act imposed on emergency service workers/volunteers? In following the same rationale for the WA Dr case, it is not uncommon for members of fire services and SES to have stickers on their private cars indicating membership of these organisations.  Are we obliged to stop if we, for example, happen across a MVA on the way to work where clearly other commuters have stopped and assistance (even if a phone call) is being rendered? Should we stop and lend our (theoretically) higher level of first aid / emergency management experience, or do we have no higher duty of care than the next “civilian” driver?

I have made a number of earlier posts that touch on these issues; see

• Nurses as ‘good Samaritans’ – can I be liable if I do stop? (March 22, 2014)
• Doctors as ‘good Samaritans’ – do I have to stop? (March 23, 2014)
• NSW SES Good Samaritans (August 25, 2014)
• Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014)
• Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)

The ‘West litigation’ that my correspondent refers to is Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45, the litigation arising out of the 2003 Canberra fires.   In the trial (Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184), Higgins CJ referred to the decision in Lowns v Woods (1996) Aust Torts Reports 81-376 where a doctor was liable for not responding to an emergency.  Higgins CJ said (at 314) ‘In my view, the same would be the case in respect of trained rescuers who hold themselves out as skilled, willing and able to assist’ ie in his view they too would be under a duty to assist.   But there are key issues, in Lowns v Woods the doctor was at work, ready and willing to see patients. Not ‘off duty’ and driving in his private car to whatever destination he or she had to get to.     Further, the Court of Appeal found that Higgins CJ had got the law wrong in most respects (see ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)).   They found that there was no duty of care owed in that case (and see also Queensland Fire and Rescue not liable after factory fire (October 3, 2014)).

These decisions are not directly on point. They are saying that a fire brigade does not owe a duty to those whose properties are threatened by fire as they have to in fact consider the community benefit.  The question of individuals and whether they owe a duty to a person in need of first aid is different.

The fundamental rule is that there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15).  There is no obligation to go and assist another even if one can without cost.  You can watch a person drown in a shallow pool and there is no legal liability.  There might be if you are a life saver at that pool, or the rescue squad that’s been called to rescue them, but not if you have no prior relationship with them.

In Dekker v Medical Board of Australia [2014] WASCA 216 the West Australian Supreme Court of Appeal rejected the idea that a doctor owed a general duty to render assistance at a car accident. They said (at [79]):

The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.

The same could be said of anyone such as an RFS volunteer.  To say ‘there is a duty to assist’ fails to consider the myriad of circumstances that might arise.

To return to the question:

Q: Is there still any positive duty to act imposed on emergency service workers/volunteers?

A: There has never been a ‘positive duty’ on off duty workers and volunteers and the issue’s never been tested otherwise.  Fire brigades are generally not under a duty to protect particular property threatened by fire.

Q: It is not uncommon for members of fire services and SES to have stickers on their private cars indicating membership of these organisations.  Are we obliged to stop if we, for example, happen across a MVA on the way to work where clearly other commuters have stopped and assistance (even if a phone call) is being rendered?

A: No, there is no duty to rescue (though your service may take a different view but that is about internal discipline and expectation, not the law)

Q: Should we stop and lend our (theoretically) higher level of first aid / emergency management experience, or do we have no higher duty of care than the next “civilian” driver?

A: It’s up to you taking into account all the relevant factors, time of day, danger to you and others, other commitments etc, but (and this is not a legal answer) I would think of course you should stop.  Why else do you volunteer to be part of the emergency services if it’s not to help when you can?  Must you stop? No.  If you do stop it would be expected that any care you provide would be ‘reasonable’ in the circumstances but unless you’re a volunteer ambulance officer your first aid skills are probably about the same as anyone else’s with a first aid certificate.  In any event, in the event of an extremely unlikely and unheard of claim that you were in some way negligent, you would be protected by the good Samaritan provisions (see Civil Liability Act 2002 (NSW) s 57 and equivalent provisions in other states and territories).

This is the second of my NSW questions (see ‘Response’ driving with NSW RFS’ (February 2, 2015)). This question deals with compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).   My correspondent asks:

Within the Brigade we have a weekly (minimum) bicycle ride to improve/maintain fitness as well as use the opportunity to remain familiar with changes in our Brigade area.  We have had special hi-viz shirts made and carry our brigade logo and name.  If we are injured in the course of this activity are we covered under the workers comp arrangements available to emergency service volunteers?

The answer is ‘you won’t know until you get injured!’  Let me explain why.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) brings volunteers with the Rural Fire Service, State Emergency Service and other emergency services (such as Surf Lifesaving NSW) into the workers compensation scheme even though they are not employed by the service for which they volunteer.

This answer will focus on Bush Fire Fighters Compensation (ss 5-22).  To be eligible for compensation a fire fighter has to suffer a relevant injury.   According to s 7, the Act applies to:

(1) … personal injury received by a fire fighter:

(a) arising out of or in the course of fighting a bush fire, or

(b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire.

(2) This Part also applies to personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of:

(a) the carrying out of an associated operation or work, or

(b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work.

(3) This Part also applies to an injury being a disease which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor.

What we have in mind here is a volunteer being injured during a bike ride that is organised and endorsed by the Brigade.   In those circumstances s 7(1) is not relevant as this is not about fighting a bush fire or travelling to or from the fire.  Further s 7(3) will not be relevant.  Therefore, for the Act to apply, s 7(2) must apply.  Section 7(2) depends on the meaning of ‘associated operation or work’.

That term, associated operation or work, is defined in s 8, which says

(1) An associated operation or work is:

(a) a bush fire preventive operation,

(b) preparatory work,

(c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or

(d) work which, in the opinion of the Authority having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989 , should be deemed to be work of a kind to which this paragraph applies.

Riding a bike is not ‘bush fire preventive operation’ (s 8(1)(a)).  I would suggest it is not ‘preparatory work’ (s 8(1)(b)).  One could argue that by training together and using the ride as an ‘opportunity to remain familiar with changes in our Brigade area’ it is preparatory work but I would not think that is what is intended here.  This might be maintaining equipment, clearing fire trails or the like.  It’s arguable, but as I say I would suggest this is not what s 8(1)(b) is intended to cover.

Where legislation refers to anything as ‘prescribed’ we need to look to the regulations.  The Workers Compensation (Bush Fire, Emergency And Rescue Services) Regulation 2012 (NSW) reg. 9 says, that for the purposes of s 8(1)(c), work that is covered by the Act includes ‘fund-raising for a rural fire brigade by an official fire fighter that is authorised by a fire control officer is an associated operation or work if that fund-raising is carried out voluntarily and without remuneration or reward.’  A fire fighter who is out running the raffle at the local fete is covered.  Clearly reg 9 does not extend to regular bike rides.

That leaves s 8(1)(d); that is

… work which, in the opinion of the Authority having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989 , should be deemed to be work of a kind to which this paragraph applies

The ‘Authority’ is the WorkCover Authority of NSW (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3).  So you’re covered if the WorkCover Authority, having taking the advice of the Minister, thinks you should be covered.   One could argue that in all the circumstances, given that it’s an endorsed brigade activity, you’re wearing shirts that carry the brigade name and logo and it’s good for the brigade that you should be covered, but at the end of the day, it’s up to the WorkCover authority.  So you won’t know if you’re covered until you get injured and make a claim!

Conclusion

It could be argued that this ride is preparatory work (within s 8(1)(b)) and therefore members are covered but I am not convinced that is the type of work that s 8(1)(b) is directed at.  If that is the case you are covered if the WorkCover Authority thinks you should be covered.

This question is timely given the current fire emergencies in WA.  My correspondent writes:

One question that I’ve not been able to find an answer for is in relation to Volunteer protections and Emergency Situation declarations here and I was hoping you may be able to shed some light on this!

I know they are both covered under the Emergency Management Act 2005, however I cannot seem to find anything that indicates the protections in Part 9 are only valid if such a declaration is made (particularly considering one of those protections is in relation to normal remuneration whilst attending an ‘emergency’).

An Act of Parliament may be divided into Parts.  Those parts may be further subdivided into Divisions.  Each separate clause is a ‘section’ and the section itself may have subsections.  Each sub-section, section and Division must be read as part of the whole.  For example section 91(2)(a)(ii) of the Emergency Management Act 2005 (WA) says ‘the employee carries out the activity on a voluntary basis;’   That is meaningless unless one has read all of s 91(2) which in turn requires one to read all of s 91 and so on.   Even so the Act must be read as a whole so one can’t (usually) have an interpretation in one part that is inconsistent with another part.  (I say ‘usually’ because you can have inconsistencies if that is the way the Act is really written, but if there are alternative interpretations possible, the one that is consistent with the scheme of the Act is probably the correct one).

My correspondent is correct, both ‘Emergency situation declarations’ and ‘Employment Protection’ are dealt with in the Emergency Management Act 2005 (WA).  Emergency situation declarations are dealt with in Division 1 of Part 5.  Employment Protection is dealt with in Part 9.  The first thing to note is that they are in different parts so, without an express linkage, one can read Part 9 without reading Part 5.

So what does Part 9 say?  It says, relevantly, ‘An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence’ (s 92(2)).  Further, an ‘employer must not victimise an employee [because] … the employee was temporarily absent from employment because the employee was carrying out an emergency management response’ (s 93(1)).

The critical question is what is ‘an emergency management response’ and does it relate to Division 1 of Part 5?  Section 91(2) tells us that, for the purpose of Part 9:

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

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

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

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

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

and

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

Most readers of this blog will be familiar with the PPRR spectrum, that is emergency management involves prevention, prepration, response and recovery (see also Emergency Management Act 2005 (WA) s 3, definition of ‘emergency management’).

The effect of s 91(2)(a)(i) and 91(2)(b) is that the employment protection only applies during the response phase. Action taken to prevent or prepare for or recovery from the impact of the hazard do not carry the employment protection.   Further the person has to be a volunteer member of an established emergency service such as bushfire brigade or the State Emergency Service, and acting at the request of that service.

So far so good, but there is one further complication – what is an ‘emergency’?  Section 3 defines words for the purposes of the whole Act.  For the purposes of the Act, emergency means ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’.   That means an employee undertakes an activity that involves responding to an emergency’ if he or she:

… undertakes an activity that involves responding to the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response.

Does responding to a tree on a road or a fire in a garbage bin represent an emergency?  On one view it does not as it’s a single unit response and one might say that is neither significant nor coordinated.   On another view it’s ‘significant’ if the event is so big it needs the emergency service as it can’t be dealt with without them, and it is coordinated because even if only one appliance is responding there is still coordination going on, where the relevant service is monitoring the response, perhaps considering what they might do whilst that crew is engaged should another call for assistance be received etc.

It might make sense to say that the employment protection is not intended to apply in those small scale responses as each brigade should have in place plans to take into account that volunteers cannot readily get away from work but that they should be allowed to go for bigger, more significant events.  That interpretation would, in my view, be consistent with the structure of Western Australia’s emergency management legislation.  The Emergency Management Act 2005 (WA) sits above the Acts that establish the various emergency services, that is the Bushfires Act 1954 (WA), Fire and Emergency Services Act 1998 (WA) and Fire Brigades Act 1942 (WA).  Those Acts govern the normal day to day response of the emergency services, the Emergency Management Act is about the bigger and more significant events.  I think it is consistent with the scheme to say that the employment protection provision are only intended to apply to those more significant and larger events.  If employment protection was intended to apply to routine, single appliance events, it would be included in those other Acts.

I can’t find any cases where the meaning of emergency in this context has been considered so the issue does remain debatable.

Conclusion

To return to my correspondent’s question, there is no express link between Part 9 ‘Employment Protection’ and Part 5, Division 1 ‘Emergency situation declaration’.    There is no need, to understand Part 9, to draw a link so it follows that in my opinion they are not related, that is the employment protection provisions apply whether or not there has been an emergency situation declared.  There would be no question that if there is an declared emergency situation, that a response was an emergency management response for the purposes of Part 9, but there can be an ‘emergency management response’ even without such a declaration.  Whether a response that involves a single unit is an ‘emergency management response’ is open to question.

I’ve received an email with a number of questions from an NSW RFS volunteer. I’ll answer each one in a separate post so people can read the one’s they’re interested in, but it does mean that the next few posts will have a NSW focus.

The first question is:

We are often paged to incidents that are more of a “compliance” nature, e.g. the pager message is “Illegal burnoff”, or “backyard fire”.  These may/may not be “emergencies” (which you have identified has been poorly defined, but for simplicity say “threat to life and/or property”).  The burn may present no “emergency”, but are breaches of the Rural Fires Act (fail to have a permit) or environmental legislation.  For calls of this nature, should we actually be responding under lights and sirens, or, since is not an “emergency” and therefore outside the exemptions for emergency vehicles in the Road Rules drive to normal road conditions?

The exemption for emergency vehicles applies when they are being driven by an emergency worker, which includes an RFS volunteer, provided they are ‘providing transport in the course of an emergency’ (Road Rules 2014 (NSW) rule 306, Dictionary, definitions of ‘emergency vehicle’ and ‘emergency worker’).  What is an emergency is not defined but as noted elsewhere it cannot be the definition that applies in the State Emergency and Rescue Management Act 1989 (NSW) which is an event ‘which requires a significant and co-ordinated response’ (s 4). On that definition an event that requires the response of a single unit, or even some units is not an emergency but we expect the drivers to proceed with lights and sirens.

In the absence of a definition in the Road Rules, it is really up to the service to define, within reason, what is ‘an emergency’.  Rural Fire Service ‘Safe Driving Standard Operating Procedures October 2008’ (which is the only version I can find on the web so I hope it is current) says

1.1 Normally RFS vehicles “respond” for the initial response to an emergency incident, under the instruction of the Incident Controller (IC), District Manager or other person with delegated authority.

1.2 Driving under Emergency Conditions commences from receipt of the instruction to “respond” in an RFS vehicle and ceases upon notification of the cessation of the risk at an incident.

The criteria here for ‘response’ driving is a direction from a relevant authority. A local brigade cannot know, until they get there, whether the event is an ‘emergency’ or not. I am reminded of my days in NSW Ambulance when responding to a call of a ‘person fallen’ that my training officer said ‘but we don’t know if it means fallen from the 4th floor!’ Equally an ‘”Illegal burnoff”, or “backyard fire’” may be threatening homes or lives.   Someone has to decide the point and for the RFS it’s the relevant ‘Incident Controller (IC), District Manager or other person with delegated authority’.

With respect to the Road Rules it cannot be the case that the exemption depends upon there being an actual emergency because the service, the coordinator and the driver are responding to a call for assistance. The exemption applies when ‘it is reasonable that the rule should not apply’ (rule 306(a)(ii)) and that must be when the driver is driving in accordance with the relevant service policy.

To that statement there is must be an exception and that is where the policy is clearly self serving and silly (and I assume there is no such policy). A policy that says ‘you may respond to your station if it is after the scheduled time for shift change and you are on overtime’. I don’t think anyone would accept that was a reasonable or genuine policy. The point of that extreme example is to say that the service in question, whether it’s a fire service, ambulance service or SES have to think about what constitutes an emergency and give it genuine consideration. Having done that their determination that, say, any turn out in response to a triple zero call is considered an ‘emergency’ would be sufficient.

Conclusion

The driver of an RFS appliance should respond under lights and sirens:

1. If he or she feels it is safe and reasonable to do so; and
2. They are acting on the ‘instruction of the Incident Controller (IC), District Manager or other person with delegated authority’ whether that is communicated via the pager or local SOPs;

The local unit cannot determine from ‘the incident (as described)’ whether or not it is an ‘emergency’, however that is defined by the service.

‘That the house of everyone is to him as his castle and fortress’ said Sir Edward Coke in Seyman’s Case, (1603) 77 Eng. Rep. 194.  William Pitt the Elder, one time Prime Minister of England said in 1763:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

But does that apply to a boat, in Queensland, during a flood?

A discussion has been circulating regarding two questions. These relate to those who live aboard their boats, and as such, class them as tier principal place of residence. In this case, the matter relates to major flooding of rivers and the fact that these are our homes.

1. During a flood, the ships master is the best person to protect and act on behalf of that vessel. During floods, those who have stayed on board have been able to adjust mooring lines etc and maintain vessel safety. Whilst the water police have said leave the vessel/abandon the home, those who said ‘no’ have saved their homes. Does the law give powers to those who are not in the best level of training to force skippers to abandon the vessel.

2. As these are our homes, and federal law states somewhere (so I am told) that water police must have permission to come aboard unless they have a warrant or some other means of entry as they would into a normal persons place of residence.

In both items above, I am not relating to open water customs type boarding. Think houseboat, if you like.

Inland waterways of a state are governed by state law (see ‘Meaning of ‘marine’ and ‘land’ rescue in NSW’ (June 18, 2012)).

A boat that is a person’s ‘residence’ is a ‘dwelling’ but even so police can in enter a dwelling for various purposes (Police Powers and Responsibilities Act 2000 (Qld) ss 19-23 and Schedule 6, definition of ‘dwelling’). A houseboat is also a vehicle so police may enter to search for firearms, drugs, stolen property and other prescribed things (ss 31-32).   None of those provisions are relevant in this context.

For the purpose of the Public Safety Preservation Act 1986 (Qld) the word ‘premises’ includes ‘… ship … [and] vessel …’ During a declared ‘Emergency Situation’ the emergency commander may ‘direct the evacuation and exclusion of any person or persons from any premises’ and ‘may remove or cause to be removed (using such force as is necessary for that purpose) any person who does not comply with a direction to evacuate…’ (s 8(1)(d)). He or she may also ‘enter or … (using such force as is necessary for that purpose) any premises’ (s 8(1)(f)).

There may be other provisions in the relevant marine safety legislation but I am not in a position to review those Acts section by section.

Conclusion

During a declared ‘Emergency Situation’ the emergency commander does have the lawful authority to require skippers to abandon the vessel. It’s true that, in the absence of permission, the ‘police must have a warrant or some other’ lawful authority for entry .  Relevant lawful authority can be found in the Police Powers and Responsibilities Act 2000 (Qld) and the Public Safety Preservation Act 1986 (Qld) and no doubt in other legislation.

A correspondent writes:

My question to you today related to volunteer work as well as paid work I currently do in New South Wales. Every organisation has its own casualty record on either paper or electronic that is to be filled out for every treatment we do.

Mostly we are being told that these records are confidential and cannot be given to anyone except the casualty, a doctor or the ambulance crew attending. On some duties we are being strictly forbidden from disclosing any information to the event organiser while at some select duties and venues we are being told that it is ok to hand these to organisers and even for them to take photocopies of our sheets.

The arguments seem to contradict themselves as on one hand we’re being told that “it is against the law for us to disclose any information on the record” and on the other hand that “the organiser or venue has hired us to provide event health services at their venue so they are legally entitled to a record”.

My question to would be about which of these “it is the law” arguments is the correct one in this case?

The privacy laws represent cooperative federalism where there is cooperative legislation at both state and federal level; in this case the Privacy And Personal Information Protection Act 1998 (NSW) and the Privacy Act 1998 (Cth).   The legislation is designed to give effect to the Australian Privacy Principles (Privacy Act 1998 (Cth) s 14 and Schedule 1) and Information Protection Principles (Privacy And Personal Information Protection Act 1998 (NSW), Part 2).

Assuming that the services involved are not a government entity (ie not the Ambulance Service of NSW) then the service will be provided by an ‘APP entity and is bound by the Commonwealth Act (Privacy Act 1988 (Cth) s 6, definition of ‘APP entity’ and ‘organisation’).  The APP entity must not not collect sensitive or personal information about an individual ‘unless the individual consents to the collection of the information and he information is reasonably necessary for one or more of the entity’s functions or activities’ (Australian Privacy Principles 3.1 and 3.3). ‘Sensitive information’ includes health information. So far, so good, a first aid organisation needs to collect both personal and sensitive information in order to perform their fundamental task of providing care to the person involved and presumably the person consents when they answer questions about their name, address and what happened to them.

An entity that collects information ‘for a particular purpose … must not use or disclose the information for another purpose’ (Australian Privacy Principle 6.1).   On the face of it that would not allow disclosure to event organisers, but that warrants further consideration. First one has to consider what is the purpose for which the information is obtained, and then consider if there are any exceptions to the relevant rule.

Why is patient information obtained?

It is too simple to say that the information is obtained for the care of the patient. In many case care can be provided to a patient in a first aid situation without recording any of the details. If a person needs a bandaid, a pain killer, an ice pack and bandage, even CPR you don’t really need to record the details of who they are. The care can be provided without keeping any records. Continuity of care is also not a major issue.   A first aid organisation is not like a medical practice where records have to be kept so when the patient comes back the doctor can see what has been done before; most first aid organisations won’t see their patient a second time or provide follow up care. Nor are first aid organisations like a hospital where there will be care provided by many people within the institution who need to see what others have done.

There is an issue of continuity of care if the person is being referred to further care, eg if an ambulance has been called and the paramedics will take over the care and will, in turn, deliver the patient to hospital and there is value in giving a complete record to the treating hospital staff, but that is not most cases that first aiders deal with. There is also an issue of continuity of care if the person needs to follow up on their care with a medical practitioner or other health service and wants to give their copy of the patient record to their treating doctor, but that assumes that they are given a copy on leaving the first aid post.   Many people will not seek or require follow up care but even so patient details are recorded.

It follows that patient care may not be the only purpose of collecting information and it may not even be the primary purpose. There are other reasons to record patient information, both personal information (ie identifying details of name, address, date of birth) and sensitive information (details of their illness or injury, treatment given etc).   I suggest that the following are relevant:

1. Quality assurance – an organisation needs to keep records so they can review the treatment given to ensure that members are treating their patient’s appropriately.
2. Statistical analysis – an organisation needs to know how much work its members are doing. If you assume that the organisation provides first aid at many public events it has an interest in knowing how many patients were treated, the nature of their injuries and the level of care required. This allows them to plan for the next event. If they don’t keep the records and have to attend a similar event, or the same event if it’s a recurring event (eg an annual show) they need to know what happened last time in order to plan for the next.
3. Legal evidence – the record serves as evidence as to what happened, and what did not. This can be vital for subsequent legal investigation and many entities may want to investigate matters. Apart from the obvious ‘self protection’ that is the value of the records should their be complaint about the first aid provided, the records will be of use to others. If people are injured at a public event there may be an investigation by police, the work health and safety inspectorate in the relevant jurisdiction, the department of health and others depending on the nature of the event and the illness or injuries.

All of those issues are relevant to the first aid organisation and the event organisers. They too need to know how many people needed care and why in order to plan for the next event and to consider how to manage the risk should they host another event. That will have more, or less, significance depending on who they are and the nature of the event. A one off event may not need that but an entity that manages a large public venue or regularly arranges events needs to know. That information may be met by de-identified data, ie the number of people, the nature of the injuries, and if there is a common case – eg 5 people treated for food poisoning, 3 for injuries from falling off the ride.

An organisation also has an interest in knowing who was injured – they may want to follow up with a letter or phone call to try to make amends. They may need the information so that if there is a claim they can identify if the person was in fact injured at their event and whether the event as recorded by the first aid staff matches what they are now claiming.

Disclosing the information

Let us assume, for the sake of the argument that the primary purpose of the record is for the benefit of the organisation so disclosing the information outside the organisation is a ‘secondary purpose’.   Information can be collected and disclosed for the ‘secondary purpose’ if:

1. the individual has consented; or
2. the individual would reasonably expect that the information would be used for the secondary purpose
3. a ‘permitted general situation’ allows the disclosure of the information; or
4. a ‘permitted health situation’

I will deal with those in turn.

1. If the person is told that information will be disclosed to the event organisers and they still give that information, consent can be inferred.

2. An individual might ‘reasonably expect’ that the information will be disclosed. Note that the use of the language ‘reasonably expect’ implies an objective test rather than proof of the expectation of the actual person concerned. Real people would probably never think about it and if they did some would think it obvious, and some would think it outrageous, that the information would be shared. It not the actual expectation of the actual patient that’s the test.

Here it is useful to ask ‘for whose benefit is the organisation on duty for?’ The answer you may want to give is ‘for the benefit of those that might be injured’ but I don’t actually think that’s correct. Imagine (as is the case) I’m the father of teenager daughters who are going to attend an open-air music festival. I might consider that there is a risk to their health and well being and I think there should be first aid services.   A volunteer or for-fee first aid service won’t go simply because I ask them to go, nor will they go and set up a first aid post simply because they too see the potential risk and think people would benefit from their attendance. They go if they are asked to by the event organiser. Why does the event organiser ask them to go? Because they appreciate the risk to patrons and they have done their risk assessment. Apart from their obligation to ensure that people are not exposed to a risk from their event, they have to manage the risk of how to deal with people who are injured. If they don’t take appropriate care they may be subject to prosecution under work health and safety law, they may be sued for failure to take ‘reasonable care’ and patrons who feel they are not being cared for won’t come next year.   The reason the first aid service is there is to manage the event organisers’ risk, not ‘my’ risk (as the concerned father) or even the patient’s risk.

Compare this to the state ambulance service. If one of my daughters is injured at the festival and her sister rings triple zero, the state ambulance service will respond to that request, they are coming for the benefit of the patient, not for the duty organiser.   A first aid organisation has no right to go the concert venue and set up a first aid post without the event organisers’ permission but the state ambulance service will go in whether the event organiser wants them to or not. In some states they have specific authority to do so (Ambulance Service Act 1991 (Qld) s 38) but even where they don’t have a statutory right of entry, the police do (see Law Enforcement Powers and Responsibilities) Act 2002 (NSW) s 9) and would be quite willing to exercise that power if the ambulance service said they were being ‘locked out’ of a venue from where someone had rung triple zero.

Whilst an average person would not think about whether their personal and sensitive information would be given to an event organiser, if they had all of that information a hypothetical person might reasonably expect such information would be shared.

In some cases it may be that the first aiders are in fact collecting information for the event organisers and this would be the case if the organisers had their own form they asked the first aiders to complete or perhaps a co-badged form, ie with the logo of both organisations on it. Then it is the event organisers that are collecting the information.

3. There is a ‘permitted general situation’ that would apply but this relates to given information to paramedics rather than the event organiser. Information may be shared where it is impracticable to obtain the person’s consent and ‘the entity reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’ (Australian Privacy Principles 3.4 and Privacy Act 1988 (Cth) s 16A). This would apply where for example, the person is unconscious and the first aiders hand their record to the paramedics to report what has happened and what has been done and this is necessary to ensure continuity of care.

4. Despite the fact that first aid services are a health service there is no relevant ‘permitted health situation’ as these relate to clinical research or the release of information ‘in accordance with rules established by competent health or medical bodies that deal with obligations of professional confidentiality which bind the organisation’. That could be relevant if the people providing first aid are registered health professionals (eg doctors and nurses) but even so that won’t be relevant to sharing information with event organisers.

So what’s to be done?

This discussion has been complex and too complex to resolve on a case by case basis.

The ultimate step is that the first aid service ‘must have a clearly expressed and up-to-date policy (the APP privacy policy) about the management of personal information’ including ‘the purposes for which the entity collects, holds, uses and discloses personal information’ (Australian Privacy Principle 1.4).   The organisation should have thought about this issue and have it in its general policy.

In developing that policy an organisation should consider the needs of event organisers and it may be prudent to have a policy to provide to event organisers a report, after the duty, setting out the number of casualties and the types of injuries. Once that had been determined it could be explained in the generic privacy policy that would apply for most events.

Even so the issue should be discussed with event organisers particularly if the duty is a regular event or if first aid is being provided at a venue that hosts many events. If the organisers want more than a de-identified report that should be discussed and a specific policy for that event or venue could be developed.

Conclusion

My correspondent said ‘… we’re being told that “it is against the law for us to disclose any information on the record” and on the other hand that “the organiser or venue has hired us to provide event health services at their venue so they are legally entitled to a record”. She asks ‘which of these “it is the law” arguments is the correct one in this case?’

The answer is that neither are correct. It is not an offence to disclose information on the record and I would suggest that a person might ‘reasonably expect’ the information to be shared. It may even the be the case that the information is being collected on behalf of the organiser.

Equally, assuming that the information is not being collected ‘on behalf’ of the event organisers, then it may not be an offence to share the information but it does not mean they are legally entitled to the record. It may mean the service may share it, not must.

The solution is to think about it in advance, discuss the needs with the event organisers. The organisation needs to develop a policy, or policies that reflect the privacy principles which fundamentally requires being able to tell people what is going to happen with the information that they provide and which is held about them.

In earlier posts I have commented on wearing seat belts with:

• Victoria Ambulance: Seat belts in an ambulance – Victoria (September 17, 2014); and
• NSW Rural Fire Service; Wearing seat belts with the NSW Rural Fire Service (January 22, 2015).

Following that last post a correspondent has brought to my attention the tragic circumstances of the death of a CFA volunteer in 2008.  This volunteer died when the appliance he was travelling in rolled and he was ejected from the cabin. He was not wearing a seat belt.

The Coroner investigated the death and handed down a report in April 2010.  The Coroner was critical of a culture in the CFA of not wearing seat belts on the fire ground notwithstanding a CFA Standard Operating Procedure that required everyone to wear a seat belt unless they had a medical exemption, were the driver when reversing, or where actively engaged in ‘pump and roll’ operations ([70]).

Despite this SOP no-one in the fire appliance was wearing a seat belt and, as noted, there was a strong culture and belief within the CFA that seat belts were not necessary.  According to the coroner this ‘reflects adversely on the CFA leadership at Brigade level’ ([74]).

The seat belt exemption for persons in emergency vehicles is the same in both Victoria and NSW (and one can infer, given it’s in the national Road Rules, all jurisdictions).  As noted in the post regarding the RFS, just because a person is not required by law to wear a seat belt it does not mean that their service cannot require members to wear their seat belt, and this case identifies the tragic consequences that can happen if they do not.

In this case the CFA gave evidence of what they had done to make it clear that there was a need and an expectation to wear seat belts.  They had produced a DVD, a ‘Seatbelts Frequently Asked Questions’ and a revised SOP to better explain the ‘pump and roll’ exception.  These had been sent to each Brigade Captain with instructions to show the DVD and discuss the issues with the members.

The coroner concluded by saying (at [81]):

I commend the actions the CFA have taken in response to [this volunteer’s] death being, in particular, the work they have done to try to rectify the lack of knowledge about the application of SOP 12.03 and to improve a culture that promoted unsafe practices amongst the volunteers who give up their time, and regrettably at times, their lives, to help protect Victoria form the ravages of bushfires.  I encourage the CFA’s ongoing work in this area.  Periodic reinforcement is an important component of all health and safety education.

He recommended (at [82]) that:

… the job description for CFA brigade captains include the responsibility for the endorsement and enforcement of the Chief Officers’ Standard Operating Procedures.

Conclusion

As noted in my earlier post regarding the RFS, the exemption from wearing seat belts is an exemption for the purposes of the Road Rules only.  It does not mean that one should not wear a seat belt and if the service has issued a directive that seat belts are required to be worn, as both the RFS and CFA have done, then a volunteer is obliged to comply.

It should also be noted that in states that have adopted the National Work Health and Safety scheme, which includes New South Wales but not Victoria, the obligation to comply with SOPs that relate to safe work practices is reinforced by the relevant Work Health and Safety Act (see for example Work Health and Safety Act 2011 (NSW) s 28(c)).   In Victoria the obligation is upon an employer, in this case the CFA, to take reasonable steps to ensure that the volunteers comply (Occupational Health and Safety Act 1994 (Vic) s 23) but there is no reciprocal legal obligation upon the volunteers because, under that older legislation, volunteers are not equated with employees.

According to the ABC:

Residents who stayed to defend their homes during the Sampson Flat bushfires in the Adelaide Hills have been told they are not eligible for the $700 state government emergency relief grant. (Brett Williamson, ‘Sampson Flat bushfire property defenders not eligible for SA government emergency grant’ ABC Online, 27 January 2015).

This caused me to question the law relating to the SA State Emergency Relief Grant, law that is not easy to find.

The webpage for the Department for Communities and Social Inclusion makes reference to various types of emergency relief. Primarily there is the grants from the Commonwealth Department of Social Security, the Australian Government Disaster Recovery Payment (AGDRP).  That payment is provided for in the Social Security Act 1991 (Cth) ss 1061K to 1061P.   Fundamentally eligibility for this payment depends upon the Commonwealth Minister declaring that the event is a major disaster and also determining the eligibility criteria.

On 6 January 2015 Michael Keenan, Minister for Justice declared that ‘he bushfire that commenced on 2 January 2015 at Sampson Flat and affected the Mount Lofty Ranges region in South Australia’ was a ‘major disaster’ (Social Security (Australian Government Disaster Recovery Payment) Determination 2015 (No. 1)).

For the purpose of the benefit a person has to be ‘adversely affected’ by the disaster and for this event that means:

(a) …

(i) the person is seriously injured; or

(ii) the person is an immediate family member of an Australian who is killed; or

(iii) the person’s principal place of residence has been destroyed or has sustained major damage; or

(b) the person is the principal carer of a child to whom paragraph (a) applies.

The problem with this scheme is that the definition of ‘adversely affected’ is not set out in the legislation but is determined by the minister on a ‘disaster by disaster’ basis (Social Security Act 1991 (Cth) s 1061L), so the eligibility may not be the same from one event to the next.  The Productivity Commission in their draft report on disaster relief funding (Productivity Commission, Draft Report: Natural Disaster Funding Arrangements Vol I, (2014, Commonwealth of Australia))had this to say (at p 40) on the subject:

Eligibility criteria for the AGDRP tend to be adjusted following a major natural disaster and have progressively become broader in their scope. Ministerial discretion over the eligibility criteria has led to inconsistent and inequitable treatment of people in comparable circumstances and has contributed to increased program costs..

Their draft recommendation 3.5 (p 40) says that the Government should:

legislate the eligibility criteria for the AGDRP and the Disaster Recovery Allowance and make these not subject to Ministerial discretion

This was a Draft Report.  The Final Report has been completed and delivered to the government but not yet released to the public so at the time of writing it is not known whether this draft recommendation has become a final recommendation or what is the government’s response to the recommendation.

The amount of the AGDRP is $1000 for each adult and $400 for each child Social Security Act 1991 (Cth) s 1061M).

Clearly this Commonwealth scheme is not the scheme being discussed in the article referred to.  So where is there a $700 state scheme?

The webpage for the Department for Communities and Social Inclusion refers to the State Emergency Relief Fund.  This fund is established by the Emergency Management Act 2004 (SA) s 37.   Money that is donated is received into this fund to be distributed by the Minister or a committee appointed by the Minister, and subject to the directions of the Governor.  The Governor’s Directions to the Members of the Committee Appointed to Administer the State Emergency Relief Fund: Directions in Relation to the Emergency Arising from the Sampson Flat Bushfires appear in the South Australian Government Gazette of 22 January 2015, at p 33.  These directions are general in nature directing the Committee to consider various issues, they do not specify specific purposes for which the funds may be used or the size of particular grants.

There is available an application for relief funding from the SERF, but it gives no indication of what relief is available or the amount of that relief.  In a press release dated 4 January 2015 it is said:

Premier Jay Weatherill said emergency grants of up to $700 are available to help people with essential items such as food and clothing.

“The emergency grants help with immediate and essential needs when families or individuals are unable to provide for themselves,” he said.

“The grants provide for up to $280 per adult, and up to $140 per child, to a maximum of $700 per family.”

Minister for Communities and Social Inclusion Zoe Bettison said the State Government will also assist with up to two weeks emergency accommodation for people unable to return to their homes.

That release gives no details of the legal basis of these payments and appears inconsistent with the statement, reported on the ABC, that

Minister for Communities and Social Inclusion, Zoe Bettison, told 891 Breakfast the funding was available for emergency relocation payments.

“Usually the trigger would be home inaccessibility,” Ms Bettison said.

According to the initial press release the grant of $700 per family appears to be on top of accommodation assistance.

It has been announced that relief is being provided by the State and Federal governments under the Natural Disaster Relief and Recovery arrangements.   Those arrangements provide for the Commonwealth to reimburse the states for eligible expenditure which includes

Category A: assistance to individuals to alleviate personal hardship or distress arising as a direct result of a disaster. Category A assistance is provided automatically by the states without requiring approval from the Australian Government.  (Natural Disaster Relief and Recovery Arrangements, 22 December 2014).

Here it is up to the States, not the Commonwealth to determine what payments are made so there is nothing in the NDRRA that says who is eligible, or the value of payments under Category A.

Conclusion

As a lawyer it is disturbing to think that the SA government is paying $700 per family without any clear criteria for that payment.  Whilst one would not expect the Minister to give legal advice in his or her media release or expect the government to maintain a website to inform unaffected commentators like me, the fact remains that the statements reported by the Minister on ABC radio appear to conflict with the earlier press release.  Whilst I’m sure it’s all above board the fact that the Minister doesn’t appear to know the criteria (“”Usually the trigger would be home inaccessibility,” Ms Bettison said”) or that emergency relocation appears to be separate to ‘grants help with immediate and essential needs when families or individuals are unable to provide for themselves’ suggest at least some poor policy work and implementation.

In the absence of any easy to find explanation of eligibility criteria, or the legal basis for the payment, it must be difficult for anyone to advise or assist those affected.  It must also make it impossible for those affected to be able to confirm or understand the advice they have been given and can well explain the frustration reported in the ABC news story.

Readers of this blog will have seen that there are ads with each post.  The ads are put there by WordPress to cover the costs of running the free service but they are at best annoying and at worst, quite inappropriate.  As the site administrator I don’t usually see them but when I do look at this site as if I was a visitor I’m reminded that they are there.   I am pleased to announce that I have now subscribed to the ‘ad free’ service so they should no longer appear which should make the site look and feel much nicer.

Regards

Michael Eburn.

The following should be a simple question from an RFS volunteer, but it requires quite a long answer.  The question:

… relates to a witness to a motor vehicle accident .

The scenario is: You are driving along a road (say in NSW, my home State) and witness a fairly serious motor vehicle accident.  You stop and render what assistance you can i.e. give first aid, calling police and ambulance, trying to protect the incident from other traffic.  The police arrive and start to do their usual thing of managing traffic, examining the accident scene, breath testing and interviewing the driver(s) of the vehicle(s) involved in the accident, and interviewing witnesses.  You approach the police person and advise him/her that you were a witness but have an important appointment elsewhere so cannot stay any longer.  You offer the police person a business card or piece of paper with your name and contact details.

My question:  Can you, not having been involved in the accident only a witness, leave the scene when you wish or can the police direct you to remain at the scene until they get around to interviewing you?

The short answer is that you can leave the scene when you wish and no, the police cannot direct you to remain at the scene until they get around to interviewing you.  The long answer is more complex.

Arrest

An arrest occurs when police make it clear that a person is no longer free to go about their business (R v O’Donoghue (1988) 34 A Crim R 397, 401).  Although it is usual to indicate an arrest by touching the person and saying ‘you’re under arrest’, there is in law ‘… no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man’ (R v Inwood [1973] 2 All ER 645, 649; see also Alderson v Booth [1969] 2 QB 216, 220).

If the police ‘direct you to remain at the scene’ then they are communicating to you that you are no longer free to go about your business and that is an arrest.

Purpose of arrest

‘At common law, the only legitimate purpose of an arrest was to bring a person before a court to answer an allegation of wrongdoing. It was impermissible to arrest a person simply to allow police to ask questions (Bales v Parmeter (1935) 35 SR (NSW) 182) or for the purpose of investigating that person’s possible involvement in a criminal offence.’ (see Michael Eburn, Rod Howie and Paul Sattler, Hayes and Eburn Criminal Law and Procedure in NSW (2013, 4th ed, Lexis/Nexis), [11.46]; Williams v R (1986) 161 CLR 278 and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99).

In Collins v Wilcock [1984] 3 All ER 374 two police officers observed a women who they suspected of ‘soliciting for the purpose of prostitution’.  The officers asked the woman to get into the car so they could ask her questions, which she refused to do and walked away.  A police officer got out of the car and followed her order to question her.  Again the woman refused to speak to the police and continued to walk away. The police officer then took hold of her arm in order to stop her.  The woman swore at the officer and scratched the officer’s arm.   She was convicted of assaulting a police officer in the execution of her duty.  On appeal the conviction was set aside.  Robert Goff LJ said:

A police officer has no power to require a man to answer him, though he has the advantage of authority, enhanced as it is by the uniform which the state provides and requires him to wear, in seeking a response to his inquiry.  What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country.

Arrest to establish identity

There are some circumstances where a police officer can detain a person in order to establish their identity.  The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 11 says:

A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.

The police may also require proof of identity (s 19).  Failure to comply is an offence (s 12) and so could justify an arrest (s 99) and the use of force to ensure compliance (ss 230 and 231).

Application

Applying those principles to the given scenario, requiring a person to remain at the scene until police get around to interviewing them would be an arrest.  Because the purpose of the arrest is to ask questions, not to bring the person before the court to face an allegation of wrongdoing, it would be an unlawful arrest.   Section 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) does not allow detention to ask questions and would not be relevant in the given scenario as my correspondent was volunteering proof of their identity so the police could locate them later in order to complete their investigation.

This brings us full circle back to the short answer: you can leave the scene when you wish and no, the police cannot direct you to remain at the scene until they get around to interviewing you.