This question reflects the unique legal position in Victoria.  In that state the emergency service can require people to evacuation a danger area but not, generally speaking, if they have a ‘pecuniary’ interest in the property.  Because of this a member of the Metropolitan Fire Brigade says:

My colleagues and I have been debating the impact of ‘pecuniary interest’ in our ability to remove persons from burning premises. Under section 58 of the MFB Act 1958, we can request to have a person removed from burning premises, however if they have a pecuniary interest, we cannot.

Our debate centres on whether the pecuniary interest component affects the whole Act, or just section 58. For example, under section 61, we can request Police to assist in the removal of persons who are by their presence interfering or otherwise with the operations of the unit. Is this affected if the person interfering has a pecuniary interest in the property they are on?

The issue is this – if a homeowner refuses to leave their house while it is on fire, and we send crews in, those crews are arguably dealing with an ‘interference’ – they have to take into account the person when they utilise hoses, it also affects which internal firefighting tactics they may use. If they have a pecuniary interest, can they still stay there, interfering with the operations? If so, at what point can they be ordered to be removed? If they had a pecuniary interest and decided to cut fire hoses to stop the fire being put out (to destroy their property for example), is this OK? Should firefighters just move outside and stop the fire spreading to neighbouring houses?

The second component of the question is also related. If the scene of the fire is deemed to be a crime scene by the initial firefighters on scene, can they request/order someone with a pecuniary interest to not enter the building (as they may be criminally involved?).

Part One – evacuation and pecuniary interest

Elsie Loh writes:

A pecuniary interest is a property right that can include goods and chattels. It is based on a principle that dates back to the Middle Ages which asserts that a person who is not a felon or is unlikely to act unlawfully can freely enjoy her or his property rights unencumbered by the state. It is on this basis that an order to evacuate could historically be lawfully refused. (Elsie Loh, ‘Evacuation powers of emergency workers and emergency-service organisations in Australia’ (2007) 22(4) Australian Journal of Emergency Management 3-7, 4).

I will not be able to provide a definitive answer to this question, as this explanation will show.  Coming up with a prediction – an opinion – will demonstrate how lawyers develop arguments but we don’t know the answer until the issue is tested.

I’ll start with other provisions that deal with the evacuation of people with a ‘pecuniary interest’.  The following provisions are relevant:

Country Fire Authority Act 1958 (Vic) ss 30 and 31:

30. Powers of officers at fires

(1) … the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:

(g) 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;

31. Police to assist Chief Officer etc.

(3) Any police officer may of his own motion or on the direction of the Chief Officer or any officer exercising the powers of the Chief Officer or any officer in charge of a brigade— …

(b) 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—

(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.

(4) Nothing in this section or section 30 shall authorize the removal from any land building or premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

Emergency Management Act 1986 (Vic) ss 24, 36A and 36B

24. Powers and duties of Minister

(1) In a state of disaster, the Minister is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.

(2)  In addition to and without in any way limiting the generality of subsection (1), in a state of disaster the Minister may— …

(e)  compel the evacuation of any or all persons from the disaster area or any part of it…

(7) The power of the Minister under subsection (2)(e) may not be exercised so as to compel the evacuation of a person from any land or building if the person has a pecuniary interest in the land or building or in any goods or valuables on the land or in the building.

36A. Declaration of emergency area

(1) If the most senior police officer in attendance at an emergency, being a police officer of or above the rank of senior sergeant, is of the opinion that because of the size, nature or location of an emergency it is necessary to exclude persons from the area of the emergency so as to ensure—

(a) public safety; or

(b) security of evacuated premises; or

(c) the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity—

that police officer may declare the area to be an emergency area.

36B. Powers in respect of emergency area

(1) If a declaration of an emergency area is made under section 36A, a police officer may exercise the following powers— …

(c) direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d) authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2) Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3) Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a  pecuniary interest  in property in the emergency area or goods or valuables in that property and is on that property.

Metropolitan Fire Brigades Act 1958 (Vic) ss 58 and 61

58. Removal of persons from burning premises

(1) A member of a unit or a police officer may order any person who is not a member of a unit or who is not acting under the control or direction of a member of a unit to withdraw from any premises then burning or which are threatened by fire.

(1A) A person must comply immediately with an order given to the person under subsection (1).

(2) If such person neglects or refuses to so withdraw he may be forcibly removed by order of any such member.

(3) Nothing herein contained shall authorize the removal from any such premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

61. Police to aid Units

(2) All police officers are authorised and required to aid units in the execution of their duties.

(3) For the purpose of subsection (2), police officers may— …

(b) of their own volition or at the request of the senior member of the operational staff at the scene, remove any persons who interfere by their presence or otherwise with the operations of the unit…

An exercise in statutory interpretation

Answering my correspondent’s question requires me to interpret the Metropolitan Fire Brigades Act 1958 (Vic).   The way to start is just to read the words.   Section 58 says that a member of a fire unit can require a person to withdraw but not if they have a pecuniary interest.  Section 61 says that the police can ‘remove’ any person who is interfering with the operations of a unit and it makes no reference to pecuniary interest.  Prima facie (or ‘on the face of it’) the pecuniary interest issue is not relevant to a decision under s 61.  But, that would seem strange given that Victoria does have this limit on other evacuations.  And the Parliament knows about it as they have dealt with it in other sections.

When it comes to fires outside Melbourne, the Country Fire Authority and the police can order that a person who ‘is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades’ to ‘withdraw’ but not if the person has a pecuniary interest.  There the pecuniary interest test is relevant to decisions by both the CFA and the police (see s 31(4), above).  The inference being that if it was intended that a person’s ‘pecuniary interest’ was to limit action by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61, then the section would say so, just as the Country Fires Act does.

On the other hand, under the Emergency Management Act 1986 (Vic) the Minister, during a declared state of disaster can order an evacuation but again, not of anyone with a pecuniary interest.  Police, on the other hand, can declare an area an emergency area and require people to evacuate or leave the area, or allow them to stay under certain conditions.  Their power extends to people with a pecuniary interest and we know that because ss 36B(2) and (3), above, expressly say that this is the case.  The inference being that if it was intended that a person’s ‘pecuniary interest’ was not to limit action by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61, then the section would say so, just as the Emergency Management Act does.

Perhaps there’s a difference.  In the case of a rural or bushfire, the CFA has limited resources that will be spread over a wide area.  In some cases they can’t hope to extinguish the fire but they may act to protect life and property.   The CFA are, however, unlikely to round up livestock, rescue the horses or move the expensive equipment all of which is vital to the farm’s ongoing prosperity.  It may make sense to say that one can’t order the farmer to evacuate when he or she is focusing on protecting assets that may be outside the CFA’s scope.

A structural fire perhaps is different.  Assume a fire in a block of 4 units. The fire starts in unit 1.  A person who refuses to leave unit 2 may be not much of a problem and they may want to be passing out their assets and collecting the photo albums.  They may just want to stay even when the MFB warns them that it’s going to be hot, smoky and dangerous.  In Stuart v Kirkland-Veenstra [2009] HCA 15, Victoria police did not have a duty to prevent Mr Veenstra from taking his own life.  Justices Gummow, Hayne and Heydon said (at [88]):

Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. As Dixon J said in Smith v Leurs, “[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third”. It is, therefore, “exceptional to find in the law a duty to control another’s actions to prevent harm to strangers”. And there is no general duty to rescue.

And even if there is a duty to control ‘another man to prevent his doing damage to a third’ in this case ‘… it was not the officers [or any third person] who put Mr Veenstra in harm’s way. They came upon the scene which Mr Veenstra had created. Were they to intervene to prevent his conduct?’ ([116]). The answer was ‘no’ and that answer might also be expected where the risk to a person is their decision not to leave a burning building.

But as I’ve said before on this blog, a fire brigade’s duty is not really to the person whose property is on fire but the broader community (see Liability for fire – a review of earlier posts (January 8, 2016)).  It’s one thing for a farmer to move his or her sheep even if that gets in the way of the CFA.  Ultimately what that’s likely to do is affect the landowner but will it really impact upon their neighbour – certainly not in a big fire where there is no possibility of actually extinguishing it.  An urban structural fire is different.  If the resident of flat 2 refuses to evacuate and that makes it harder for the firefighters, that impacts upon all the other residents.  If it’s a fire in a house then that too, in urban Melbourne, also poses a risk to the neighbours.  And if the person has ‘decided to cut fire hoses to stop the fire being put out’ that can’t be OK as they risk not just themselves but others.  If they do cut hoses or if they have started the fire, however, police could arrest them for various offences under the criminal law (see Crimes Act 1958 (Vic) s 197 ‘Destroying or damaging property’) and once arrested the person can be removed and the provisions of the MFB Act would not be relevant.

Who can order an evacuation of a person with a pecuniary interest?

We’ve seen in the legislation that sometimes a person with a pecuniary interest can be evacuated.

  • Under the CFA Act neither the CFA or the Police and require a person with a pecuniary interest to evacuate.
  • Under the Emergency Management Act 1986, the Minister can’t but the police can order a person with a pecuniary interest to evacuate.
  • Under the MFB Act the MFB can’t but perhaps the police can?

Is this a trend? That is, with the exception of the CFA Act, the power to compel an evacuation of a person with a pecuniary interest lies with the police.  As a lawyer and academic it’s appropriate to ask ‘what to other commentators say or think?’  To return to Elsie Loh’s paper she says (at pp 4-5):

Forced evacuations most often involve interference to the evacuee’s body by the rescuer which, if unlawful, is effectively an assault. As assault is a serious matter, courts may be reluctant to find an implied power to use force …

And it may be that the Parliament is more willing to allow police to exercise that power (given that the use of force is a fundamental part of policing duties).   So it may make sense to infer that the greater power to require a person with a pecuniary interest, and who may be less willing to go, should be limited to police.  If that’s correct then certainly concluding that s 61 is not limited by a person’s pecuniary interest would be consistent with the policy in the EM Act.

What if s 61 is so limited – well so what?

Assume for the sake of the argument that s 61 is limited and police can’t compel a person with a pecuniary interest to leave even though they are ‘by their presence or otherwise’ interfering ‘with the operations of the unit’.  So what?  Under the EM Act 1986 a police officer can, for ‘the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity … declare the area to be an emergency area’ and can them require everyone to leave, pecuniary interest or not (ss 36A and 36B).

No-one likes pretence so coming to the conclusion that one section is limited but the same result can be achieved by another is not helpful.

Again to look to another commentator for support, Loh says (p 4):

Members of the Metropolitan Fire Brigade and police officers within a metropolitan area may only forcibly remove a person if they do not have a pecuniary interest in the land, building or goods in it. Police officers may use force to remove a person regardless of pecuniary interest (members of MFB may ‘cause’ such a person to be removed) if they are interfering with brigade operations within a metropolitan area and where there has been an ‘alarm of fire’.

Having looked at the legislation I agree with her.

Conclusion – Part one

It is my opinion that the Metropolitan Fire Brigades Act 1958 (Vic) s 61 is not limited by the ‘pecuniary interest’ exception that applies to s 58.    A member of the MFB can require anyone, other than a person with a pecuniary interest, ‘to withdraw from any premises then burning or which are threatened by fire’ and they can do so for any reason, ie so they don’t get in the way of firefighting operations or for the person’s own good.

A person with a pecuniary interest can only be compelled to evacuate by police (either on their own ‘volition’ or at the request of the MFB) and only because their presence is interfering ‘with the operations of the unit…’, not because it’s a good idea and in the person’s best interests.  It’s up to them to determine what their best interests are.

Part two – a crime scene

The second component of the question is also related. If the scene of the fire is deemed to be a crime scene by the initial firefighters on scene, can they request/order someone with a pecuniary interest to not enter the building (as they may be criminally involved?).

There is no definition of a ‘crime scene’ in Victorian legislation (compare this to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) part 7 (ss 88-98)).

Under the Metropolitan Fire Brigades Act 1958 (Vic) s 71(1) ‘The Board or the Chief Officer may cause any place in the metropolitan district where any fire occurred to be searched, and may remove and keep possession of any materials which may tend to prove the cause or origin of the fire.’  Further (s 71(5)) says:

If in the opinion of the Board or the Chief Officer there are suspicious circumstances in relation to the cause or origin of any fire in the metropolitan district, the Board or the Chief Officer—

(a) may restrict access to the place where the fire occurred until a Coroner with jurisdiction to investigate the fire under the Coroners Act 2008 orders otherwise or until an inquest into the fire is held under that Act, whichever first occurs;

(b) may cause to be erected at the entrance or boundary of the place a notice in the prescribed form of the restriction; and

(c) may request a coroner to investigate the fire.

Apart from the fire brigade:

(1) A coroner or the Chief Commissioner of Police may take reasonable steps to restrict access  to—

(a) the place where a fire occurred; or

(b) a place reasonably connected to the place where a fire occurred.

(2) The coroner or the Chief Commissioner of Police may cause a notice in the prescribed form stating that access is restricted to a place to be put up at that place or as near as possible to that place.

(3) A person must not, without lawful excuse, enter or interfere with any place to which access is restricted under this section. (Coroners Act 2008 (Vic) s 38).

The pecuniary interest exemption doesn’t apply to either of these provisions. These provisions are clearly aimed at the time after the fire but they could apply to a person with a pecuniary interest who was outside and was now seeking to return to the scene of the going fire.

Fundamentally firefighters are not law enforcement agents but like everyone they do have the power to make an arrest (Crimes Act 1958 (Vic) s 458).  Any person may arrest someone they find:

… committing any offence … where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i)     to ensure the attendance of the offender before a court of competent jurisdiction;

(ii)     to preserve public order;

(iii)     to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv)     for the safety or welfare of members of the public or of the offender… .

Fire fighters could chose to exercise their right to make a citizen’s arrest but I suggest you would want to be very sure of your suspicions and it may not be the best use of fire brigade resources if the building is actually on fire.

If the MFB is at the scene of a fire and have suspicions, even at that point, as to cause and origin of the fire and the role that someone with a pecuniary interest in the building may have played in starting the fire, that should be reported to police.  It will be up to police to determine what they can do, exercising their police powers, rather than have fire fighters take police action.

Conclusions

My conclusions are:

  1. The issue of a person’s ‘pecuniary interest’ is not relevant to an action taken by police under the Metropolitan Fire Brigades Act 1958 (Vic) s 61.
  2. Fire fighters have no authority to require a person to ‘withdraw’ under s 58 because the fire fighters suspect the person of being criminally involved in the fire. They do have a power to restrict the person’s access to the fire scene Metropolitan Fire Brigades Act 1958 (Vic) s 71.  If the person is actually on the premises fire fighters could make a citizen’s arrest and then deliver the person to police but the better option would be to report their suspicions to police and leave the criminal law enforcement to them.