I have been asked some further questions arising from the Malone review into Rural Fire Services in Queensland. The questions put to me are:

1. Given the legal advice summarised in the Malone review states that brigades are not part of QFRS, what does that mean for volunteers and the management committees of brigades regarding their liabilities and protections under the fire act for the stuff they buy and do in their areas?
2. Are volunteers actually part of QFRS and/or what is their status under that act?
3. What are the actions volunteers and brigades should be taking if there are legal risks for them highlighted from the malone review?

The summary of legal advice annexed to the Malone Review is extracted below. I have each paragraph of the advice followed by my commentary:

The status of RFB’s is that they are unincorporated associations consisting of a group of persons with a mutual agreement or understanding to be part of an association. Accordingly, RFB’s are not separate legal entities in their own right. This means they cannot enter into contracts, buy or own property, or sue or be sued.


I agree with that save that the Acts Interpretation Act 1954 (Qld) s 32D says “In an Act, a reference to a person generally includes a reference to a corporation as well as an individual.” Any group of person may seek to be registered as a rural fire brigade. It is up to the Commissioner to register the brigade (s 79).

As the reference to ‘person’ includes a corporation it would include an association incorporated under the Associations Incorporation Act 1981 (Qld). An incorporated association must have at least seven members (s 5). If there were 7 people who wanted to form a Rural Fire Brigade they could first form an incorporated association and then apply for registration. If the term ‘group’ (used in the Queensland Fire and Rescue Service Act s 39) requires more than one person that could be achieved by having two incorporated associations, one incorporated association and one natural person or even an incorporated association and the relevant local government authority, to form the group.

RFB’s are not part of the Queensland Fire and Rescue Service (QFRS) because, under the Fire and Rescue Service Act 1990 (Act), QFRS comprises the Commissioner and fire service officers. RFB members are not fire service officers employed under the Act.


I agree with that analysis. The QFRS is made up of the Commissioner and fire service officers (Fire and Rescue Service Act 1990 (Qld) s 8A). A fire service officer is a person employed under s 25. By definition volunteers are not employed so they are not fire service officers and are not part of QFRS.

The Act does not contain provisions requiring the Commissioner or the Department to administer or control money and other property owned by RFB’s. Property owned by RFB’s is administered and controlled by the group of persons comprising the RFB. However, the Department is required to account for the property owned by the State which is used by RFB’s, including equipment provided by, or subsidised by, the Director-General.


I agree, see section 84.

The Act provides that rules made by RFB’s and elections of officers do not have effect unless approved by the Commissioner. In addition, the Commissioner can direct a RFB to amend or revoke rules and can remove RFB officers. However, the Commissioner cannot make rules for the RFB or appoint officers for the RFB.

I agree.

The group of persons comprising the RFB is administered by an individual or individuals in that group: the officers or management committee of the RFB. The Commissioner has powers in relation to certain aspects of the RFB but those powers are not sufficient for the Commissioner to control the RFB or govern their financial or operating policies except to the extent that a RFB must comply with the Commissioner’s directions when the RFB is in charge of operations for controlling and extinguishing a fire.


I don’t agree with this part of the advice. As noted above “the Commissioner cannot make rules for the RFB” but the rules prepared by the rural fire brigade must be approved by the Commissioner. Further “The commissioner may at any time direct a rural fire brigade to amend, revoke or make rules in the manner and for the purpose specified in the direction” (s 80). The Commissioner can absolutely control the brigades operating rules. It’s not clear what the advisers to the Malone enquiry meant by ‘policies’ and if they are different to rules but even if they are, even if the brigade has policies that are subordinate to its rules, the Commissioner could direct them to make rules to override the policies.

As noted above the Commissioner cannot appoint officers, but a person elected to an office only holds that office “for the period specified by the commissioner” and further, “The commissioner may dismiss a person from any office held with a rural fire brigade or may disqualify a person from holding any office.”

The rural fire brigade is to perform fire fighting and fire prevention tasks in any area assigned to it by the Commissioner and perform such other functions as the Commissioner assigns to the brigade (s 82). When the fire brigade is in charge of fire fighting operations the first officer has all the powers of an authorised fire officer but when exercising those powers he or she must “comply with any code of practice and with any direction of the commissioner.”

It follows that in fact the Commissioner has direct control over all aspects of RFB management. He or she can determine who can stand for office, may terminate the appointment of officers elected by the members, can require an RFB to create or amend its rules which govern the way it is managed and accounts operated. The Commissioner determines the role of each brigade and establishes the procedures that govern their operations. I disagree with the advice that the Commissioner’s powers “are not sufficient for the Commissioner to control the RFB”. Control is a significant factor when determining where liability for negligence lies. The degree of the Commissioner’s control would be a vital consideration in deciding whether the Commissioner and through him or her, the QFRS and the State of Queensland would be liable for any default by an RFB.

The Act provides that the Department’s role in relation to RFB’s is to be responsible for their efficiency and in this regard the Department may provide training and other assistance to them. This is consistent with the RFB’s status as a group of persons separate from QFRS and the Department.


I agree in part. The Act provides that the Chief Executive of the Department of Community Safety is “responsible for the efficiency of rural fire brigades and may provide training and other assistance to them” (s 85; Acts Interpretation Act 1954 (Qld) s 33 and Administrative Arrangements Order (No. 4) 2012 (Qld), p 18). That is consistent with the RFBs status as separate to QFRS but it doesn’t deny that the Commissioner of the QFRS has control over the RFBs.

With that background, I can return to the questions asked:

1. Given the legal advice summarised in the Malone review states that brigades are not part of QFRS, what does that mean for volunteers and the management committees of brigades regarding their liabilities and protections under the fire act for the stuff they buy and do in their areas?

Section 129 of the Fire and Rescue Service Act 1990 (Qld) says “No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability.” This section does not refer to ‘fire service officers’ or any other term relating it to members of the QFRS. It refers to things done by ‘any person’ and that would include members of the RFBs who in managing their fire brigade, and in turning out to a fire or other task assigned to them by the Commissioner, is doing things for the purposes of the Act.

The trouble with s 129 is that is that it has only limited application and it’s meaning is unclear. It applies in two circumstances, It provides legal protection for:
(a) any “matter or thing done or omitted to be done by any person pursuant to this Act” or
(b) any “matter or thing done or omitted … bona fide and without negligence for the purposes of this Act”.

It is not at all clear what the difference is between a thing done ‘pursuant to the Act’ and a thing done ‘for the purposes of this Act’. Presumably a thing done ‘pursuant to the Act’ is doing something specifically provided for in the Act eg an authorised officer exercising a power under s 53(2). A thing done for the ‘purpose’ of the Act is doing something to achieve the Act’s purpose but not specifically authorised eg attending training.

With respect to protection for things “done or omitted … bona fide and without negligence for the purposes of this Act” the section actually provides no legal protection. If a person alleged a member of an RFB was liable for conduct that amounted to a nuisance or some other tort, other than negligence, then the section may help. If the allegation is that the person was negligent then of course they are not liable for acts done ‘without negligence’, that is axiomatic given an allegation of negligence. But if the allegation is negligence, and negligence is established, then by definition s 129 doesn’t apply as it only protects for acts or omissions that were done ‘without negligence’.

Section 129(3) goes on to say:

Where any question arises as to whether a person’s liability for any act or omission, the subject of any proceedings, is negatived under subsection (1) and the person claims to have acted pursuant to or for the purposes of this Act, the burden of proof of negligence and the absence of good faith lies upon the person alleging to the contrary.

That section, too, is pointless. If a plaintiff sues and alleges that they are entitled to compensation due to their negligence, the burden of proving negligence lies on them regardless of s 129. They don’t have to disprove ‘good faith’ as that is not a defence to a negligence claim and is not a defence under s 129 where the alleged act or omission was done “for the purposes of this Act”. In that case the protection only applies if the act or omission was done “bona fide and without negligence” (emphasis added) so if the plaintiff can prove negligence, they can prove s 129 doesn’t apply regardless of the defendant’s good faith.

So, even given that members of the RFBs are not part of QFRS they still have the same protection that s 129 provides, it just doesn’t provide much protection.

2. Are volunteers actually part of QFRS and/or what is their status under that act?

No, they are not part of the QFRS. Their status is that they are members of a Rural Fire Brigade.

3. What are the actions volunteers and brigades should be taking if there are legal risks for them highlighted from the Malone review?

They should seek to have brigades incorporated, ideally under the Associations Incorporation Act, there should be rules to ensure that the RFB will be liable for the acts or omissions of members of the brigade, and they should obtain insurance. They should approach the Department of Community Service to seek to have cover from the government insurance arrangements extended to them or they should obtain relevant insurance on the private market. It would also be prudent to discuss the issue with their local government authority. It should be noted that even so the risk of litigation against the fire brigades is over rated particularly in the context of fire fighting and other operations. I would also suggest that given the control the Department and the Commissioner can exercise over the RFB the Government of Queensland would be liable for their actions particularly when fighting a fire or performing another emergency task assigned by the Commissioner. The bigger risk is causing injury around the fire shed, when conducting community tasks and the like.

POSTSCRIPT TO MY POST MALONE INQUIRY INTO QUEENSLAND RURAL FIRE SERVICE AND VOLUNTEER PROTECTION

On 30 April I made that post in response to the release of the Malone inquiry and in particular recommendation 65. In that post I said that the protection given to rural fire fighters in Queensland was stronger than in most states, that was because of s 129 (2) that allows the use of force and s 129(4) that allows a court to dismiss actions at an early stage if the defence appears to apply. This more detailed analysis of s 129(1) however has made me change my mind that this protection is ‘strong’. It is badly drafted and its application is unclear.

I stand by my previous view that the Malone recommendation is pointless. The recommendation was

Recommendation 65: That a volunteer shall not be liable for any act or omission made in good faith provided it is not proven to be reckless, negligent or malicious. This protection is to be afforded in both Criminal and Common law.

I repeat what I said in that earlier post. That recommendation

… is pointless because it says “That a volunteer shall not be liable for any act or omission made in good faith provided it is not proven to be reckless, negligent or malicious”.

Volunteers are not liable for acts done if they are not reckless, negligent or malicious. If you think of the tort of negligence, it stands to reason that to establish liability the plaintiff has to prove that the defendant was negligent. Reckless and malicious are the fault elements for various crimes and again there is no liability for them unless they are proven. An Act that implemented the recommendation would do nothing to change the current law.

I do now have to agree with Malone’s recommendation that “… legislation should be reviewed” but it should be reviewed ‘to ensure there are no loopholes which could lead to volunteers who have acted in good faith to protect lives and property being subject to legal action from affected parties’; it should not seek to exclude decisions that were “negligent” as it is protection for negligent actions that is required.

Michael Eburn
12 June 2013