M. Eburn

RFS brigades entering into a contract

In Fire, Legislation and plans on March 1, 2015 at 8:42 pm

The correspondent who asked ‘‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)), now asks:

In whose name would a NSW Rural Fire Brigade, contract to purchase  capital or personal equipment and contract services when they are not forthcoming from the NSW RFS Government Agency (currently Office of NSW Rural Fire Services)?  And if it does purchase such, and there is a dispute, in whose name or right would proceedings be taken by the brigade to recover its loss?  Could the brigade do this in its own name (see – Bilpin Rural Fire Brigade v Computus Australia & Anor [2002] NSW CTT 385) or would the NSW RFS Commissioner have to do this on behalf of the brigade?)

NSW RFS brigades are not incorporated.  We also understand from the following recent post and comments that you consider that a NSW brigade has no legal status or standing outside of the NSW RFS of which it forms a part (the NSW Crown) and that it also cannot be considered to be an unincorporated association of its volunteer members; albeit, also at the same time forming part of the NSW RFS:

The Service Standard 2.1.2 we think permits a NSW RFS brigade to make such a purchase out of its accounts if it is approved by the brigade.  But however you read it – it doesn’t say in whose name the contract should be entered into (eg, Captain, xx Brigade ‘for and on behalf of the NSW Rural Fire Service’ – or xx ‘on behalf of the State of NSW’).

By asking this question we are not looking for any specific legal advice or assistance that will guide our brigade in such matters and we clearly accept that any comments and insights you can offer will be only of a general nature.   It is just that being ordinary volunteer fire-fighters we find ourselves out of our depth when it comes to legal requirements when purchasing equipment and services that the RFS cannot purchase for us, but we have funds to do it ourselves.  The Services Standards issued by the Commissioner are not very helpful to us in this.  Staff of the RFS try to be helpful; but they also say that it is a legal matter and they don’t know the answer.

A contract can only be entered by an entity with legal personality or personhood.  A natural person, you and I, is a legal person but so are artificial entities like governments and corporations.    A corporation is an entity that has been ‘incorporated’ – we think of it as meaning commercial, for profit corporations, but they needn’t be.  There are provisions, in NSW the Associations Incorporation Act 2009 to allow community groups to ‘incorporate’.  The process of incorporation creates a separate legal entity, separate from the people who created it.  This allows members to come and go without the entity changing and also the entity, rather than the individuals involved, to own property, enter contracts, sue and be sued.  This ensures that people who take a management role or invest in a corporation, are not risking their personal assets in the event of losses or liabilities.

Another way for a corporate entity to be created is via an Act of Parliament – eg the Mine Subsidence Compensation Act 1961 (NSW) provides for the creation of the Mine Subsidence Board.  Section 6 says:

The Board shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name; and shall for the purposes and subject to the provisions of this Act be capable of purchasing, holding, granting, demising, disposing of or otherwise dealing with real and personal property and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer.

There is nothing in the Rural Fires Act 1997 (NSW) that says a brigade is a corporate entity.  The Act says that a brigade is to be established by a local authority or the commissioner (but as noted in an earlier post, they are, today, all created by the Commissioner; ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).

If a brigade is not a legal person, it cannot enter a contract; so what should be the name for any contract?  The obvious answer is that contracts should be in the name of ‘The State of New South Wales’ as that is the relevant legal entity, but I would suggest that most brigade captains do not have the relevant delegation to enter into a contract to bind the state of NSW. Though, having said that, they or brigade presidents and treasurers will have delegations or authority, as does the executive committee to make decisions that must by implication if not express authority bind the RFS and the Crown.  Without access to the delegation manuals and administrative arrangements that the RFS has established I can’t advise on those issues.

The other thing to note is that agreements may be entered in the name of the RFS brigade and if everyone meets their obligations and everyone gets paid, it is not really an issue.  It is an issue should a contract need to be enforced, in which case the other party needs to know who they are contracting with.  It certainly does appear from the standard constitution in Service Standard 2.1.2 that brigades are expected to exercise some autonomy as if they are separate legal entities, but merely asserting that they are, or can behave in that way, doesn’t make it so.  A brigade is not a separate legal entity, but from that constitution one could identify who the contracting parties are.  If a contract was entered into with one party as the ‘Kickatinalong Rural Fire Service’ one could infer that the contract parties are all those people listed on the register.   A more appropriate contracting party would be the ‘Executive Committee of the Kickatinalong Rural Fire Service’ and one could look at the rules to determine who the members of the Committee were and therefore who were the parties to the contract.

In Bilpin Rural Fire Brigade v Computus Australia & Anor [2002] NSW CTT 385 the Bilpin Rural Fire Brigade sought a refund for a defective computer.  The presiding member of the Consumer, Trader and Tenancy Tribunal of New South Wales did not address the issue of whether or not the Bilpin Rural Fire Brigade had the legal capacity to enter into a contract as that was not an issue that was raised by any party.  The judgment does say that the Brigade has an Australian Business Number (ABN) and is a registered charity.   A search of the ABN register shows that the Brigade still has that registered ABN.  It’s hard to see on what basis they would have got an ABN (see https://abr.gov.au/For-Business,-Super-funds—Charities/Applying-for-an-ABN/ABN-entitlement/) but I don’t suggest for a moment that the issue of an ABN was not appropriate.  But issuing an ABN does not create a legal entity.

According to the Australian Charities and Not for Profits Commission, some entities cannot be registered as charities.  These include ‘a ‘government entity’ — this is part of an Australian or foreign government or one of its agencies, and some organisations established by a state or territory under a law’ (http://www.acnc.gov.au/ACNC/Register_my_charity/Who_can_register/Step4/ACNC/Reg/Step4.aspx?hkey=e61b0fe5-1507-4c50-9b1e-9a74e03e8295).   On my view that would mean a brigade could not be registered as a charity and I note that a search of the register reveals no record for the Bilpin Rural Fire Brigade using either the name or ABN so I infer it is no longer registered.

A further search of the charities register reveals the following NSW charities that use the name ‘Rural Fire Service’:

  • Gosford City Rural Fire Service Canteen;
  • Great Lakes Headquaters Rural Fire Service Catering;
  • NSW Rural Fire Service Association Incorporated;
  • NSW Rural Fire Service Catering Officers Region East;
  • NSW Rural Fire Service Welfare/Support Brigade; and
  • The Trustee for NSW Rural Fire Service & Brigades Donations Fund.

None of them are the brigades themselves and therein lies a solution.  The members of a brigade could well form a corporate entity such as the Kickatinalong Rural Fire Service Support Association.  That association could raise funds and buy equipment and either donate or lend that equipment to the relevant RFS brigade.   Whether that would be considered appropriate by the RFS or the Commissioner is another matter.

It’s certainly does appear that the Rural Fire Service Regulation 2013 (NSW) reg 4 that discusses a brigade constitution, reflects arrangements that have long since been consigned to history,.  As the commentary on earlier posts has noted, it’s not at all clear what value the constitution has as it clearly does not ‘constitute’ the brigade – the Commissioner does that (s 15).  The ‘constitution’ document could easily be called ‘Brigade Rules’ without any significant impact.

‘How autonomous are NSW Rural Fire Brigades?’

In Fire, Legislation and plans on February 25, 2015 at 1:37 pm

It seems all my questions these days are coming from the NSW RFS.   I’m happy to field questions from other services and other states?  Until then this one is from the RFS and asks ‘How autonomous are NSW Rural Fire Brigades?’

This question has been troubling me since taking up appointment of President of my local RFB.  I can recall reading a past post in which you explained that the extent of control that the NSW Fire Commissioner could exercise over decisions taken by a local volunteer RFB about its constitution would depend on whether the RFB was formed by its Local Government Council or by the NSW RFS Commissioner.

Our Brigade, like many in its situation, was home-grown back in the 50’s.  Over the years it came under the umbrella of the NSW RFS and is grateful to be supplied by and have the active and daily support of the NSW RFS in its operational responsibilities.  It happily sees itself today as a volunteer organisation under the direct support and indirect control (but only in operational matters) of the NSW Rural Fire Commissioner.

The Brigade has no written Rules or Constitution (at least none ever made by it that I have been able to discover).  It will apparently soon have a template constitution to be mandated and imposed by the NSW RFS, but with a limited right for the Brigade to make local rules, provided they don’t contravene or conflict with the standard constitution.  None of this is yet of concern to the Brigade, but we wonder why we will soon have a constitution (not of our making) that will impose an umbrella control over how we will operate as an unincorporated volunteer emergency organisation into the future, but with a restricted capacity in a restricted time-frame to make rules (another word for constitution) provided they fit within this State-Government mandated constitution umbrella.  So, the question – How autonomous are NSW (volunteer) Rural Fire Brigades that have evolved as my local Brigade has?

I have said recently to others our brigade has the appearance of a QANGO (Quasi Autonomous Not Government Instrumentality) but is in reality today an indirect agency of the NSW Crown (NSW Executive Government) under the direction and control of the NSW Rural Fire Commissioner.  Am I correct in making this general assumption?  After all, in taking-up the offer by NSW RFS some years past to equip our Brigade with two new Cat 7’s in replacement for our old Cat 1 and to maintain the current fire-fighting vehicles at no cost to our volunteer members, how could we pretend otherwise!  That must be our operational status.  But how much freedom is left to us in all other matters, including for example the property on which we would base our operations and garage our fire-fighting vehicles and other equipment (not all of it supplied by NSW RFS)?

It would be helpful if our Brigade’s current legal status as an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act could be clarified by a more constructive legal analysis than by my current off-the-cuff remarks.

The earlier post that this correspondent referred to is ‘Constitutions for NSW RFS brigades’ (May 21, 2014).   In that post I said:

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

The Act refers to brigades formed by local authorities but, in reality, there are no such brigades.  RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:

Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).

The model where brigades were formed and then joined the state organisation no longer applies in NSW but it does still apply in Queensland where ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’ (Fire and Emergency Services Act 1990 (Qld) s 79).  In Western Australia bushfire brigades are still the responsibility of local government (Bush Fires Act 1954 (WA) s 41).

Today the Rural Fire Service is a public service agency within the NSW Government’s Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1).    As explained in the 2012 Discussion Paper – Review of Local Government Engagement with the RFS, p 4:

Under the Rural Fires Act (NSW) 1997 and the Rural Fires Regulation (NSW) 1997, the RFS was formed as a single state level/managed agency.

The Rural Fire Service consists of the Commissioner, staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8).  It is not the case that firefighters are a member of the brigade and the brigade is somehow a member of the RFS.  The volunteers are members of the RFS and the RFS operates the brigades.   A brigade is not an ‘unincorporated volunteer emergency organisation’ (and can I suggest it wouldn’t want to be) but is part of the very much incorporated RFS.    The problem with being an unincorporated association is that any liabilities would belong to the officer holders of that association.  Incorporation creates a fictitious legal person that can sue and be sued in its own right.    As part of the RFS a brigade can’t be sued but the State of New South Wales can be (Crown Proceedings Act (NSW) s 5).

As my correspondent has noted, a brigade constitution must comply with the terms set out by the ‘responsible authority’ which as noted, is for all practical purposes, the Commissioner (Rural Fires Regulation 2013 (NSW) reg 4).   Even if brigades were still part of local government they would have to comply with services standards (Rural Fires Act 1997 (NSW) s 13 and (Rural Fires Regulation 2013 (NSW) reg 9).    The Commissioner has set out the relevant ‘template’ constitution in RFS Service Standard 2.1.2 Brigade Constitution.

Conclusion

An RFS brigade is not a QANGO.  It is not an ‘an indirect agency of the NSW Crown’.  The RFS is an agency of the Crown and the brigade is part of the RFS.  The brigade has no legal standing in its own right.   The amount of freedom left to a brigade is determined by the Commissioner and is reflected by the standard constitution set out in the service standard.   There are clauses that the brigades may draft to suit their own requirements and conditions.

It is my view that the status of a brigade is not that of ‘an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act’ rather it is a brigade formed by and as part of the Rural Fire Service.  The RFS is not some separate agency that coordinates or manages disparate brigades, there is but one service and each brigade is part of it.

Two publications

In Fire, Legislation and plans on February 24, 2015 at 1:22 pm

When I’m not writing this blog, my full time job is as a university academic and that job involves research.  Research is tested when it is published in peer reviewed papers and conferences.   Although they have taken some time to appear, two papers that I wrote with my colleague Professor Stephen Dovers have now appeared and may be of interest.  They are:

  1. Michael Eburn and Stephen Dovers ‘Legal Aspects of Risk Management in Australia’ (2014) 4(1) Journal of Integrated Disaster Risk Management 61-72; DOI10.5595/idrim.2014.0076; and
  2. Michael Eburn and Stephen Dovers, ‘Learning lessons from disasters: alternatives to Royal Commissions and other quasi-judicial inquiries‘, (2015) Australian Journal of Public Administration (Online); DOI: 10.1111/1467-8500.12115.

Both papers are on the related theme of how better to learn from disasters.  In the first one we argue that one of the risks the emergency services are managing is the risk of being blamed after a disaster.  Focusing on that risk detracts from actually helping the community.  We argue that avoiding the temptation to ‘blame’ would go a long way to improving community safety. In the second paper we give some arguments why the Royal Commission model of post event inquiry is not the best way to identify lessons from catastrophic events.  We suggest some alternatives which are the subject of our ongoing work with the support of the Bushfire and Natural Hazards CRC.

These papers seem particularly relevant with the release of another inquiry, this time the NSW Parliamentary Inquiry into the 2013 Wambelong (or Warrumbungle National Park) fire.    I haven’t yet finished reading the report but already it appears to be pointing the finger of blame at the NPWS over their management of the park and the early response to the fire; again using the knowledge that this fire became a destructive mega fire to judge decisions that had to be made in minutes and when the actual outcome was just one of many possible outcomes.

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