M. Eburn

Self help firefighting in Victoria

In Uncategorized on August 30, 2014 at 8:55 pm

‘Vigilante firefighter league forming across rural Victoria amid fears authorities won’t stop blazes’ is the headline from the Victorian Herald Sun, (28 August 2014) and I was alerted to this by a discussion on the LInkedIN Group ‘Emergency Management Australia’.

The story says

“Rural land holders are spending up to $15,000 each to “armour up” with fire trucks, radios and protective clothing so they can form teams to beat the CFA and police to a threatening blaze before it gets out of control…

Since the Black Saturday Royal Commission, the CFA has declared its top priorities are to protect human life and communicate information to the public.

That means that during some battles, trucks have been on standby near homes and townships, while livestock, paddocks, sheds and fences are left without CFA protection.

Daraweit Guim farmer Tom McDonell lost 9000 sheep during the February Mickleham-Kilmore blaze and said the emotional impact had been traumatic.

Mr McDonell was stopped by authorities from returning to his smouldering property and said the CFA’s failure to also protect farming infrastructure and land had left businesses in a “dire” financial state…”

In the LinkedIN discussion a commentator says ‘Under the CFA Act, it is illegal to form a firefighting organisation outside the CFA framework’.

The Country Fire Authority Act 1958 (Vic) s 26 says

No association of persons shall operate as a fire brigade in the country area of Victoria unless it is first registered and its officers and members enrolled in accordance with this Act, and no persons so operating without such registration and enrolment shall have any powers or privileges or the benefit of any immunity conferred by this Act.

‘Brigade’ is defined as ‘a brigade registered by the Authority…’  So s 26 says

‘No association of persons shall operate as a fire brigade registered by the Authority…’   Section 26 does not say it is an offence to operate an unregistered brigade, just that any such brigade does not enjoy any powers, privileges or immunities.

This is consistent with s 107A which says

(1) A person must not use any name, title or description to imply an association with the Authority, without the written authority of the Authority.

(2) A person must not represent that the person is associated with the Authority unless such an association exists.

(3) A person must not impersonate an officer of the Authority or a member or volunteer.

(4) A person must not use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Authority.

The Act provides a penalty of 6o penalty units (or 60 x $147.61 (Monetary Units Act 2004 (Vic)) = $8856.60) for each of these offences.

There is no need for legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810); if a fire starts on my property of course I can attempt to extinguish it and equally if my friends and neighbours want to join me, they can.   Not only is this consistent with resilience any law to the contrary would be impracticable and unenforceable.

So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.  The so called ‘vigilante firefighter league’ would not commit any offence provided they in no way suggested that they were associated with the CFA.

If I’m wrong about that, then the issue is still ‘what is a brigade?’ In an earlier post, on the prohibition on private fire brigades in NSW (‘What is a NSW fire brigade?’  (27 August 2014)) I said:

I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.

Similar reasoning might apply here.  A group of farmers who agree to help each other out in a mutual aid arrangement are not, in my view, a brigade.  It may be different if they had a central shed or station, detailed administration with chain of command, logos and the like.  The story says ‘Negotiations are underway with sponsors including insurance companies and equipment suppliers’ which may, depending upon the terms, make them look like a brigade, but, on the other hand, an insurer that offers a premium discount because people are taking proactive measures to reduce their risk may just be making an actuarially sound judgement.

In any event these farmers will be subject to the CFA Act and the powers of CFA officers at the scene of a fire.  For example s 30(1)(g) says:

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

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

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

That could well be applied to these volunteers if it is felt they are interfering with CFA operations.

There is no doubt that members of the vigilante firefighter league would enjoy no immunity or other privileges; that is they would have no specific powers to allow them to operate, they would not enjoy statutory immunity from liability for actions taken in good faith to deal with a fire and they would not enjoy statutory rights to compensation.   Equally they would not have obligations to provide fire fighting services or to maintain neighbourhood safer places.  Unlike the CFA, that owes obligations to the entire Victorian community, they would be entitled to focus their resources on protecting their own interests and not on what, in a broader view, is the ‘community’ interest.

Interesting times indeed.

What is a NSW fire brigade?

In Fire on August 27, 2014 at 12:03 pm

The Fire Brigades Act 1989 (NSW) s 31 says

(1)  It is unlawful for any persons to constitute or maintain a fire brigade for the purpose of extinguishing fire within any fire district except:

(a) as a permanent or volunteer fire brigade under the authority of this Act, or

(b) on premises or land owned or used by the persons or at which they are employed.

But what is a fire brigade?   According to the definitions section of the Act,

fire brigade” means a permanent fire brigade or a volunteer fire brigade, but does not include a rural fire brigade.

permanent fire brigade” means a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner.

volunteer fire brigade” means any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade.

If we applied those definitions, s 31 would say:

It is unlawful for any persons to constitute or maintain a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9 for the purpose of extinguishing fire within any fire district except:

(a)       as a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9…

And that is silly.  It would be impossible for a person to maintain a brigade that is established and maintained by the Commissioner and it can hardly be an offence to maintain a volunteer brigade where there is an approval in force.  And in any event it is a defence to maintain a brigade that is established by the Commissioner etc.  Taken literally s 31 says ‘it’s an offence maintain a fire brigade except where the fire brigade is a fire brigade’.  Clearly ‘fire brigade’ in s 31(1) does not have the same meaning as ‘fire brigade’ in the definition section.

So what is a fire brigade under s 31 and why is it important?  It’s important because of a growth in private emergency service providers.  Companies and event organisers have both statutory and common law obligation to ensure that, after an appropriate risks assessment, they have in place emergency procedures and personnel to provide first aid, rescue and where appropriate fire fighting resources.  If they want to engage a contractor to provide those services is the contractor breaking the law?

Section 31(1)(b) allows for companies to establish their own industrial brigade, so a company can employ people as fire fighters, but would that extend to contractors?  If company A needs to maintain fire fighting capacity at its factory, and it engages company Z to provide those services, company Z would employ the necessary staff.  The fire fighting staff are employees of Z, not A so when they ‘stand by’ at A’s factory, or mine, or public event, they are not on property owned or used by their employer.   But are they a fire brigade?  One might think that if company Z is providing a range of services, of which fire fighting is just one, that they are not, but fire brigades also, increasingly provide a range of services.

Some history may help.  It is understood that fire brigades, historically, were provided by local governments, insurance companies and groups of concerned citizens banding together to form a brigade in their common interest; (see Murray, Robert and White, Kate (1995), State of Fire: a history of volunteer fire fighting and the Country Fire Authority of Victoria (Hargreen, Melbourne); Ellis, Julie-Anne (2001), Tried by fire: the story of the South Australian Country Fire Service (South Australian Country Fire Service, Adelaide); Ruoff, Theo (1966), ‘Links with London’ The Australian Law Journal, vol 40, pp 211-213; Myer Stores Ltd v State Fire Commission [2012] TASSC 54, [41] (Blow J)).   Original moves to bring brigades together was not to bring them into a central organisation but just to provide some uniform training and coordination so they could operate together, but they still remained individual and independent brigades.  Victoria’s first fire brigade legislation, the Fire Brigades Act 1890 (Vic) was an Act to improve the administration of fire brigades. This Act empowered the local municipalities that had an interest in providing fire protection to do so if they wished (Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1890, 381 (Mr Deakin)), it did not require them to do so.  It is still the case that in some states, the bushfire brigades are operated by councils (Western Australia) or are independent legal entities (Queensland).  Organisations such as the NSW Rural Fire Service are relatively new, the RFS being created in 1997 when the Rural Fires Act 1997 (NSW) replaced the Bush Fires Act 1949 (NSW)

Let us then look at the history of s 31.  This section was amended in 1993 but only to add a reference to hazardous materials incidents.  Otherwise the section, and importantly s 31(1) has been in place since the Act was first passed in 1989.

The first fire brigades Act in NSW was the Fire Brigades Act 1884 (NSW).  This Act created the Fire Brigades Board, the Board was made up of one representative from the council of the City of Sydney and one from all the other Councils that would have a fire brigade, as well as two representatives from the insurance industry and one representative from the volunteer fire brigades then operating in NSW.  It was the duty of the Board to:

… establish and maintain an efficient Brigade for the extinction and suppression of fires and protecting life and property from loss and damage thereby and to furnish such Brigade with such fire engines hoses tools implements accoutrements horses and appliances as may be necessary … (s 4).

Further the Board could:

… enrol and take over the present Insurance Companies Fire Brigade and all property thereto belonging and the Colonial Treasurer shall out of the Consolidated Revenue Fund pay such sums as may be required equal to the aggregate amount of the valuation of such property … (s 5)

and

 All Volunteer Fire Brigades … shall be registered at the office fo the Board and shall be subject to inspection by the Superintendent and at all fires shall be subject to his orders … (s 10).

(As an example of qualification creep it is interesting to see that in 1884 the Chief Officer was the Superintendent of Fire Brigades.  Today a superintendent sits somewhere below the Commissioner, Deputy Commissioner, Assistant Commissioner, Chief Superintendent etc).

What is evident is the new Board was to take over insurance brigades and bring the volunteer brigades under their direction and control.  As with today, the Brigade was to be funded from contributions made by the insurance sector and local governments (s 13).  There was no specific offence of maintaining a brigade contrary to the Act but the governor could make regulations to give effect to the Act including creating offences.   The old regulations are not readily available so one can’t see if there was an offence in the regulation.

The 1884 Act was replace by the Fire Brigades Act 1902 (NSW). The Board, established under the 1884 Act continued as the Board under the 1902 Act (s 2(4)).  The Board had similar functions as it did under the 1884 Act but now it was also to fund the Brigade to obtain fire alarms and telephones (s 11).   There is no mention of insurance company brigades, presumably there were none, but again volunteer brigades had to be ‘registered at the office of the Board’ (s 29) and:

All volunteer fire brigades established within the Metropolitan District [were] subject to inspection by the Superintendent, and shall at all fires be subject to his orders. (s 19)

This Act did not have a long life and was repealed and replace by the Fire Brigades Act 1909 (NSW).  The 1909 Act created the Board of Fire Commissioners to replace the Fire Brigades Board.  The new Board was to

… establish and maintain permanent fire brigades, and authorise the constitution of volunteer fire brigades, and [could] suspend or cancel any such authorisation. (s 20(a)).

The Chief Officer could

… inspect volunteer fire brigades and their premises and equipment, and enforce compliance with the by-laws made in respect of the same. (s 30(a)).

In this Act we see the forerunner of today’s s 31.  Section 41 of the 1909 Act said:

It shall not be lawful for any persons to constitute or maintain a salvage corps or a fire brigade for the purpose of salvage of property at fires or of extinguishing fire within any municipality or shire, or any part thereof, to which this Act applies, outside premises or land owned or used by such persons or at or on which such persons are employed, unless such corps or brigade is constituted by the board or is authorised by the board to act as a salvage corps or fire brigade. Any person who acts in contravention of this section shall be liable to a penalty not exceeding twenty pounds.

The definition of ‘fire brigade’, ‘permanent fire brigade’ and ‘volunteer fire brigade’ were similar to those found today.    The 1909 Act was replaced by the current Act of 1989.

It appears that today’s s 31 is largely a ‘cut and paste’ of the 1909 s 41, save that the modern Act does not refer to a salvage corps.  What we can infer is that these prohibitions are aimed at stopping private brigades that provide the type of services that are offered today by Fire and Rescue NSW.    We don’t want to return to municipal or insurance brigades providing an emergency    fire fighting service and an undignified rush by various brigades to fires and perhaps competition or argument as to who is in charge.

Does that extend to private emergency service providers?  On one view it would, a private company that sets itself up as a fire and emergency service and agrees to respond to their client, in return for a fee, would be exactly the sort of operation that I think the Act is aimed at.  On the other hand, a contractor who attends a particular work site, whether its providing standing emergency services at a factory or mine, or an ad hoc service provider who’s attending a community or sporting event just for the few days in which its operating, seems very different.  The emergency service provider in that case is providing the sort of service that a person conducting a business or undertaking (a PCBU) is required to provide under modern work health and safety law (see Work Health and Safety Act 2011 (NSW) and in particular Work Health and Safety Regulation (2011) regs 42 and 43).

We all have an image of what is a fire brigade, a crew of 4 in a fully equipped appliance that is standing by for the emergency call.  A contractor’s response team may look like that, or may look very different but they are still there to respond to fires and other emergencies.  It should be noted however, that there is no need for legal authority to fight a fire; anyone can fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810).

So I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade.  A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.

Driver Licensing for NSW Paramedics

In Ambulance, Driving and Road Rules, Uncategorized on August 25, 2014 at 11:02 pm

I am hoping you can provide some advice regarding Drivers Licences for NSW Ambulance Paramedics.  Specifically, can a holder of a private conditional licence (subject to annual medical review) drive an ambulance?

According to the national Assessing Fitness to Drive publication issued by Ausroads, the Private Standard applies to licenses up to LR (which is what ambulance requires).  The commercial standard only applies to drivers of heavy vehicles, public passenger vehicles for hire or reward (bus drivers, taxi drivers, chauffeurs, drivers of hire cars and small buses etc.).

I cannot find anything, either internally or externally, defining exactly what license a paramedic requires, ie Private or Commercial Standard.  Are you able to offer an opinion on this? If you believe it is the Commercial Standards that apply would this be due to an ambulance being a vehicle that carries public passengers (ie patients) or is it due to it being an emergency vehicle?

The Assessing Fitness to Drive document is incorporated into NSW law by the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 which says:

The Authority may, by notice in writing, require the holder of a driver licence …

(c) to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive , by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class…

The regulation does not however say what standards are to be applied.   Assessing Fitness to Drive says that for car and light rigid licence holders,

Private standards apply UNLESS:

  • driver holds or is applying for an authority to carry public passengers for hire or reward (e.g. taxi driver)
  • driver holds or is applying for an authority to carry bulk dangerous goods
  • driver holds or is applying to hold authority to be a driving instructor.

In these cases the commercial standards apply.

It goes on to say (emphasis added) (p 12):

The standards are intended for application to drivers who drive within the ambit of ordinary road laws. Drivers who are permitted to exceed these laws, such as emergency service vehicle drivers, should have a risk assessment and an appropriate level of medical standard applied.

In New South Wales a public passenger vehicle is:

(a) a bus used to provide a public passenger service, or

(b) a ferry used to provide a regular passenger service, or

(c) a taxi-cab or private hire vehicle, or

(d) a vehicle declared by a regulation under section 6 to be a public passenger vehicle. (Passenger Transport Act 1990 (NSW) s 3).

Tourist service vehicles have been declared to be a public passenger vehicle (Passenger Transport Regulation 2007 (NSW) reg 202).

The Medical Assessment Form that must be completed to obtain a Public Passenger Vehicle Driver authority says ‘The medical examination must be conducted in accordance with the commercial medical standards described in the “Assessing Fitness to Drive, Commercial and Private Vehicle Drivers (2012)”.

It can be inferred that the commercial standards apply when an authority is sought to drive a public passenger vehicle as defined in the Passenger Transport Act 1990 (NSW). An ambulance is not a public passenger vehicle and so, prima facie, the private standard applies, but as noted the standard expects that a different standard may be applied to emergency workers.

Given that the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 does not set a standard and the standard itself says ‘The assignment of medical standards for vehicle drivers is based on an evaluation of the driver, passenger and public safety risk, where risk = likelihood of the event x severity of consequences’ then the RMS can apply whichever standard they see fit. Further, it would be possible for the Ambulance Service to insist on the higher standard as part of its risk assessment and in consideration of its obligations to ambulance officers, patients and the public.

S0 my view is that a paramedic could assume that the private standard applies but the RMS and/or the Ambulance Service could insist on the higher standard and if that was considered unreasonable the paramedic would need to challenge that decision under administrative law remedies.

 

 

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