These two related questions arise from the current dispute involving the Victorian CFA. With the issue going to the heart of the CFA’s volunteer culture some fire fighters are talking of breaking away from the CFA. One correspondent writes and says:
As part of a larger article in the papers today about the ongoing debacle with the CFA, there is the following, but what is the legalities of this? Could it work? What needs to happen?
VOLUNTEER firefighters in the state’s north east are planning to leave the CFA and reform as an independent fire service, as Federal Labor candidates face a backlash in marginal seats.
Firefighters in Molyullah, south of Wangaratta, have voted to explore options of leaving the CFA and reforming as an independent Bush Fire Brigade.
Another correspondent says;
This is very relevant at the moment, but in Victoria under the CFA act, are individuals registered with CFA to gain access to the powers that we have, or are the brigades registered and our powers flow from them? Interested as many of us would like to formally separate from the CFA to avoid conflict, without impeding our ability to look after our communities.
This is not the first time I’ve considered this question. See
- Self help firefighting in Victoria (August 30, 2014); and
- Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014)
The main bar to separating from the CFA is s 26 of the Country Fire Authority Act 1958 (Vic) s 26, which says:
No association of persons shall operate as a fire brigade in the country area of Victoria unless it is first registered and its officers and members enrolled in accordance with this Act, and no persons so operating without such registration and enrolment shall have any powers or privileges or the benefit of any immunity conferred by this Act.
What is interesting is that there is nothing to say what is to happen if a brigade is established. There is not general penalty provision that says ‘Breach of a section where no penalty is provided carries a penalty of $….’ and there is not specific penalty provided. Compare s 26 to s 107A which says:
(1) A person must not use any name, title or description to imply an association with the Authority, without the written authority of the Authority.
Penalty: 60 penalty units.
(2) A person must not represent that the person is associated with the Authority unless such an association exists.
Penalty: 60 penalty units.
(3) A person must not impersonate an officer of the Authority or a member or volunteer.
Penalty: 60 penalty units.
(4) A person must not use any insignia described or set out in the regulations in any manner contrary to the manner set out in the regulations without the written authority of the Authority.
Penalty: 60 penalty units.
That there is a penalty for impersonating a member of the CFA is clear, but no penalty is provided for in s 26. The normal expectation with a rule that says ‘No one shall do x’ is that anyone doing x is required to stop doing it, but that’s not what s 26 says. It says ‘No association of persons shall operate as a fire brigade …’ but then goes on to talk about what limitations there are on people so operating, they are not required to stop, they are not subject to any penalty rather they operate without ‘… any powers or privileges or the benefit of any immunity conferred by this Act’. What I said in my earlier post (Self help firefighting in Victoria (August 30, 2014)) was:
There is no need for legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810); if a fire starts on my property of course I can attempt to extinguish it and equally if my friends and neighbours want to join me, they can. Not only is this consistent with resilience any law to the contrary would be impracticable and unenforceable.
So what the CFA Act says, in my view, both in s 26 and 107A, is that one must not operate a brigade or purport in any way to be associated with the CFA unless one is actually associated with the CFA.
Given the terms of s 26 I would anticipate that if there was an unregistered brigade, the CFA may be able to get an injunction from the Court requiring those operating the brigade to cease and desist but there is no actual offence committed.
With respect to the question from my second correspondent; as noted, any brigade that operates outside the CFA legislation would not enjoy any of the rights, privileges or immunities of the CFA. They will have no special authority to take control of anyone at the scene of a fire, they will not have the support of the police, and in any event, the police are required to support the authority of the CFA (s 31) so one can see that as a source of potential conflict; they would have no power to set fires either as hazard reduction or back burning during fire ban periods; they would not be entitled to benefit under the fire fighters compensation schemes and finally they would not enjoy any particular exemption from liability (s 92).
If we look at the powers of a CFA member at the scene of a fire, we can see the power is actually vested in the Chief Officer – s 30 says:
Where the Chief Officer believes on reasonable grounds that there is danger of fire occurring or where a fire is burning or has recently been extinguished anywhere within the country area of Victoria 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:
(b) He shall have the control and direction of—
(i) any brigade or brigades present at the scene of the fire; and
(ii) any persons who voluntarily place their services at his disposal either individually or as members of any fire fighting organization (whether established by or for the purposes of a statutory authority or body corporate or not) whilst they remain present at the scene of the fire;
(c) He shall have authority either alone or with others under his command to enter upon any land house building or premises and if necessary to force open any outer or inner doors of any house or building which may be on fire or in the near neighbourhood of any fire for the purpose of taking any steps which he deems necessary for any of the purposes aforesaid, and he may take or give directions for taking any apparatus required to be used at a fire into through or upon any land house building or premises which he considers convenient for the purpose;
(ca) The Chief Officer may cause—
(i) any vessel, wharf, pier or jetty to be entered upon or into, if necessary with force; and
(ii) any necessary apparatus to be taken upon or into any vessel, wharf, pier or jetty;
(d) He may take any measures which in the circumstances are reasonable and which appear to him to be necessary or expedient for any of the purposes aforesaid and in particular he may cause any house building or structure to be entered into and taken possession of or pulled down or otherwise destroyed or removed, and any fences to be pulled down or otherwise destroyed or removed, and any undergrowth trees scrub grass stubble weeds or other vegetation to be burnt or otherwise destroyed or removed;
(e) He may cause water to be shut off from any main pipe channel or other works of water supply in order to obtain greater supply and pressure of water for the purpose of extinguishing the fire and he may enter or give directions for entering any land or premises and may take or cause to be taken water from any waterway, lake, lagoon, bore, dam, tank, main or pipe or other source of water supply whatsoever; and no person or body of persons having the management of any water supply shall be liable to any penalty or claim by reason of any interruption in the supply of water occasioned by any act matter or thing
(f) The Chief Officer may close any road or part of any road affected, or likely to be affected, by a fire or smoke from a fire and may direct traffic on any road in the vicinity of the closed road (or closed part of a road);
(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;
(h) He may at any time pull down or shore up any wall or building damaged by fire that may be or may be likely to become dangerous to life or property;
(i) The Chief Officer may take such other measures as appear necessary for the protection of life and property.
The Chief Officer isn’t at every fire and cannot really do all those things him or herself, so the Chief Officer can delegate and authorise ‘any person by name or to the holder of an office or position approved by the Authority’ the various powers that are granted to the Chief Officer. Without seeing the delegation manual, I would assume there is a standing delegation to Brigade Captains, regional officers and the like to allow them to exercise the Chief Officer’s powers.
So members of the CFA have whatever power they have by virtue of the delegation from the Chief Officer. It follows that if members were to resign from the CFA and ‘formally separate’ they would no longer be able to exercise any of the Chief Officer’s powers or any other authority that is found in the CFA Act. That conclusion would be consistent with the clear words of s 107.