I have previously discussed the Volunteer Charter that was agreed to by the Government of Victoria, Volunteer Fire Brigades Victoria Incorporated and the Country Fire Authority (see The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016)). This question relates to a similar charter in the Australian Capital Territory (ACT):

On the 9 September 2008 the ACT Government sign a volunteer charter with volunteers of the ESA see here for charter http://www.firebreak.com.au/vol_charter.html, it was updated and again signed on 20 November 2013 an updated version is here http://www.firebreak.com.au/Volunteer_Charter_Final.pdf. The Charter was signed by the ACT Chief Minister, The ACT Emergency Services Minister and the Commissioner of the ESA.

The question from a ‘legal’ standpoint how much value does a charter have? Secondly there are a number occasions where I believe the ESA Commissioner has not fulfilled one of the key points of the Charter “it ensures that the ACT Government and the Emergency Services Agency will commit to consultation with all Volunteers about all matters that could affect Volunteers” so is a Charter just meaningless document that just pays lip service to keep volunteers quiet or does it have some sort of legal standing?

Unlike the Victorian charter (see Country Fire Authority Act 1958 (Vic) ss 6F-6H) the ACT charter has no basis or recognition in the relevant legislation (except perhaps Emergencies Act 2004 (ACT) s which says that one of the objects of the Act is to ‘recognise the value to the community of all emergency service members, including volunteer members’; and s 8(4)(e) which says that one of the Commissioner’s functions is to ‘recognise the importance to the services and the community of—  (i) all emergency service members, including volunteer members).

So what is the value of the document?  It’s clearly not intended to be legally enforceable, it’s a statement of commitment.  As the Charter says

The parties commit themselves to use and apply the Charter in a spirit of mutual respect and goodwill and to work together in that spirit to resolve any disputes that may arise between the ACT Government, the Emergency Services Agency and the Volunteers by reference to the key principles set down in this Volunteer Charter.

Whether ‘the ESA Commissioner [has or] has not fulfilled one of the key points of the Charter’ with respect to consultation is a matter of debate.  According to the Oxford online dictionary, ‘consult’ means ‘Have discussions with (someone), typically before undertaking a course of action’ (see also Firefighters and the need to consult with landowners in WA (September 1, 2015)).

How the Commissioner should consult and whether any consultation is effective is a matter upon which opinions may differ.    The Charter can’t be read literally, it would not be possible for the ‘ACT Government and the Emergency Services Agency’ to consult ‘with all Volunteers about all matters that could affect Volunteers’ because that would require them to discuss changes with every single volunteer and that can’t happen.  What could happen is that they could consult with representatives (eg a representative from each rural fire service station or SES unit, or volunteers’ association) or provide opportunities for those that want to comment to do so, or adopt probably an infinite range of other methods to try to hear from their volunteers.  Having a  commitment to consult does not equate to a commitment to adopt the views of the volunteers or any of them, given that there is unlikely to be a single view of all volunteers.    What follows is that a volunteer may feel that there has been inadequate consultation and the Commissioner and others may think that they have adequately consulted.  If the Commissioner honestly believes that then he or she has meet the commitment under the charter.

An analogy can be drawn with the law that would apply if the terms of the charter were set out in statute (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   A court will only interfere with a decision of a ‘competent authority’ if the authority’s decision

… is so unreasonable that no reasonable authority could ever have come to it … but to prove a case of that kind would require something overwhelming… It is not what the court considers unreasonable, [which is] a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy … and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

So if the Charter says there has to be ‘consultation’, that is a matter upon which ‘honest and sincere people [may] hold different views’ on what that means or requires.  If the ESA, as a ‘reasonable authority’ adopts some method to undertake effective consultation or otherwise apply the principles of the charter, then a court won’t intervene unless the system proposed ‘is so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter.

What action could a person take who thinks the charter has not been honoured?  If the ESA were going to introduce a change that impacted volunteers and it was believed the principles of the charter had not been complied with, it may be possible to seek a legal remedy using the principles of equity and/or administrative law.  I won’t try to explain the differences but the gist of it would be that having made the commitment and promised to take into account the views of the volunteers, failure to do so could mean that the decision maker has not considered a factor that he or she had to consider and that the decision is therefore invalid.   If that argument got up the remedy would, at best, be an injunction from the Supreme Court to the effect that the decision is stayed (or stopped) and the decision maker then has to go back and engage in proper consultation.    The problems with that are:

  1. Actions in the supreme court are expensive and difficult;
  2. Courts are going to give significant leeway to the executive arm of government (ie the ESA) so if the ESA can say they have had meaningful consultation or have acted in accordance with the principles of the charter, even if not everyone is happy, then a court would be unwilling to say that the ESA has not met its obligations. The failure to act on the Charter would have to ‘so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter;
  3. Even if a volunteer won such an argument, the decision maker may go back, consult and then still make the same decision as was originally made.

Alternatively one could seek a declaration that some action is inconsistent with the Charter.  The effect of a declaration would be that the agency would have to go back and act in accordance with the Court’s direction. It is unlikely that any government would refuse to honour a court declaration and failure could be punished as a contempt of court.  Seeking a declaration would face the same difficulties as getting an injunction.

In the ACT there are simplified procedures to review an administrative decision.  The Australian Capital Territory’s Civil and Administrative Tribunal (ACAT) is what I call the ‘Swiss army knife’ of tribunals as its jurisdiction is so varied.  One can apply to ACAT to review an administrative decision and ACAT can substitute the tribunal’s decision for the original decision maker if it thinks it should, it does not need to find that the decision was ‘unreasonable’ as defined by Wednesbury (ACT Civil and Administrative Tribunal Act 2008 (ACT) s 68).    But ACAT can only act on decisions that are ‘reviewable decisions’ under legislation.  Some decisions that might be made by the Commissioner or his or her delegate under the Emergencies Act 2004 (ACT) are reviewable (see s 185 and Schedule 2) but a decision on how to consult or otherwise implement the charter is not one of them.

Conclusion

The Charter could have some legal standing and in the right circumstances an aggrieved person could approach the Supreme Court for an injunction to stop a decision being implemented if the process used did not comply with the charter, or to obtain a declaration that some action did not comply with the charter.  The prospect of bringing, and winning such an action, is remote.  The reality is that the Charter is more a political statement.   A person who thought the charter was not being complied with could use that in an argument with the ESA or the Government that they are not doing what they promised to do, and they should.  If enough people agree then pressure from the Volunteers and their associations would no doubt cause the government or the ESA to reconsider their position.