Members of a CFS brigade have recently discussed the powers of the CFS Incident Controller at the scene of an emergency.  They say:

The Fire and Emergency Services Act 2005 (SA) s 97 seems to be sweeping and powerful, giving a CFS member who is OIC at an incident wide powers to do, among other things, enter any land, building or structure and take possession of any water. If a person fails to comply with a requirement or direction of the Incident Controller without “reasonable excuse”, he can be prosecuted and fined a significant amount ($20,000).

Our discussion cantered around the wording “‘reasonable excuse” particularly in the context of the following scenario.

A rural householder has made good provision for defending his property with sprinklers, water tanks, clearing a firebreak and doing a good job as far as preparing his property to withstand fire attack.

Neighbours on the other hand, have done little or nothing to mitigate fire risk. They have no water source and have not done any significant fire reduction clearing.

Fire breaks out near the neighbour’s property, the CFS attends and the Officer in Charge determines that he requires the water supply of the first householder (who has made good provision) in order to fight the fire at the neighbour’s property (who have made little provision).

The first householder refuses to allow the CFS to take possession of his water supply, citing that he may require it himself for defence of his own property. Taking his water will neutralize much of the preparation work he has done as a responsible landowner, and being asked to give it up to protect the property of those who have failed to make any worthwhile provision is unreasonable.

In this scenario, would the first householder be seen in law to have a “reasonable excuse” for failing to comply with the requirement of the CFS Incident controller?

The law distinguishes between a ‘subjective’ test and an ‘objective’ test.   Where a legal test is ‘subjective’ it depends upon what a person actually believed, thought or knew. Where the test is ‘objective’ the question is what a hypothetical reasonable person would or could have believed, thought or knew.   The reference to ‘reasonable excuse’ means an excuse judged objectively that is not an excuse that (in this case) the defendant thinks is reasonable but whether there was objectively good reasons for their action.

The issue here, ie whether someone is guilty of the offence set out in s 97(4), is an issue of criminal law. The Crown would have to prove that a requirement or direction was given and that the action of the defendant was not ‘reasonable’. The Crown would have to prove that case ‘beyond reasonable doubt’ (Woolmington v DPP [1935] UKHL 1).   The question of whether or not the excuse offered by the defendant was reasonable in all the circumstances would be a matter for the jury (if there is a jury) or the judge to decide.

In Taikato v R (1996) 186 CLR 454 Chief Justice Brennan and Justices Toohey, McHugh and Gummow said ‘what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse”…’ applied. Further they said

‘the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence…’

Justice Dawson said ‘A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person.’

It follows that one cannot say in advance whether this would be a ‘reasonable excuse’ for failure to comply with a direction from the CFS.   I can say that it would certainly be an argument worth putting before a court if the property owner were charged.   It would certainly be consistent with the aim of the legislation and the national strategy on disaster resilience that the homeowner wants to keep the water for the purposes of protecting their own assets; it may be different if they wanted to keep the water so they could sell it to the highest bidder or because they didn’t like the neighbour and wanted to see their house burn. It may also be different if the CFS wanted the water to fight the fire at a defensible place in order to save the properties involved and the local town rather than taking person A’s water to protect Person B’s property.

It should be noted a SACFS officer may ‘take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing…’ (s 97(2)(b)) and may ‘take and use water or any other fire extinguishing material from any place (s 97(2)(g)).   There is an obligation to consult with the occupier of any private land where such action is to be taken (s 97(6); on what it means to ‘consult’ see ‘Firefighters and the need to consult with landowners in WA’ September 1, 2015)). Subject to that consultation the SACFS does not need the property owners consent or cooperation.   The offence only occurs if the person fails ‘to comply with a requirement or direction’. The CFS would have to ‘require’ or ‘direct’ the property owner to do, or refrain from doing something before the issue of ‘reasonable excuse’ arises.   If they can take the water without the occupier’s cooperation, they are free to do that.   (Compare that to the situation in WA where the bush fire brigades cannot take water that is ‘for use at a school or the domestic supply of an occupier contained in a tank at his dwelling-house…’ Bush Fires Act 1954 (WA) ss 39(1)(e) and 44(1)(d)).

Finally, the issue of whether taking water from a property, thereby leaving the property owner vulnerable would lead to civil liability was originally an issue in the litigation following the 2003 Canberra bushfires. That matter was not, ultimately, decided by the court but for a discussion of those issues readers may be interested in the paper I presented at the 2010 Australian Fire and Emergency Services Authorities Council (AFAC) and Bushfire CRC annual conference in Darwin. You can download that paper here: Legal consequences from the 2003 Canberra fires’ or, for a shorter version, the powerpoints I used when delivering the paper’s findings.

Conclusion

Would the desire to keep water that had been stored for the purposes of fire fighting be a reasonable excuse to refuse to comply with any direction or requirement to make that water available to the CFS in the circumstances described? As the High Court judges noted, that is not an question you can answer until it is ruled upon by a judge or jury but if I were acting for a property owner in the circumstances described, I’d certainly argue the point.