This question arises from:
“… a recent [NSW] RFS leadership course [where] the problem of what I will call ˜inadvertent discovery” was raised. The scenario is that the RFS responds to a situation legally and whilst there discovers evidence of illegal activity.
Can they report that activity to authorities?”
Can they? In the right circumstances, they must! I’ll come back to that, but first a trans-pacific digression.
This is a much bigger issue in the United States where the 4th Amendment to the US Constitution (part of the US Bill of Rights) says ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…’ There are exceptions to the rule requiring a law enforcement officer to first obtain a warrant prior to commencing a search (see J. Curtis Varone, Legal Considerations for Fire and Emergency Services (2007, Thomson) pp 150-158). One of the exceptions is the ‘exigent circumstances’ rule – that is a warrant is not required in circumstances where requiring police to obtain a warrant ‘would have real, immediate, and serious consequences’ (Varone, p 153).
The US Supreme Court considered the issue in the context of firefighters in Michigan v Tyler 436 US 499 (1978). The facts relevant to our discussion were that the local fire department responded to a shop fire at about 2am. As they were extinguishing the fire, the fire fighters discovered plastic containers of flammable liquid and this was reported to the fire chief who entered the building to examine the containers. The fire chief, in turn, notified police. A detective took several pictures but ceased further investigation because of the smoke and steam. By 4 a.m., the fire had been extinguished, and the firefighters departed. There were other facts, important for the decision, about the subsequent actions by police but they need not concern us.
The first finding by the Court was that it didn’t matter if the search was conducted by a fire fighter or a police officer. Stewart J (on behalf of the Court) said that the:
“basic purpose of this Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”
The officials may be health, fire, or building inspectors. Their purpose may be to locate and abate a suspected public nuisance, or simply to perform a routine periodic inspection… [Even so these searches] are thus clearly within the protection of the Fourth Amendment.
The shop owner was entitled to the protection of the 4th amendment however
… warrantless entry … may be legal when there is compelling need for official action and no time to secure a warrant…
A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry “reasonable.” Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 465-466. Thus, the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler’s Auction, nor by Chief See’s removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.
So what – Australia does not have a Bill of Rights and the 4th amendment does not apply here. True enough, but there is still common law rights that protect private property. Justice Kirby said that even though ‘Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution’ the rules governing the need for search warrants is reflected both in Australian statute law and judicial interpretation of those laws (New South Wales v Corbett  HCA 32, ). In an earlier post (Authority to enter private property for a hazard reduction burn (July 9, 2016)) I quoted Lord Denning (an English judge) who in Southam v Smout  1 QB 308 at 320 said:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.
As a general rule police and ‘all the forces of the Crown’ (which would include the RFS) cannot enter private property without a warrant or some other lawful excuse (see Authority to enter private property for a hazard reduction burn (July 9, 2016)). Today most, if not all, fire brigades have legislation to allow them to enter premises to:
- Fight a fire – see for example, Rural Fires Act 1997 (NSW) s 23 ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’; and
- Investigate the cause of a fire – Rural Fires Act 1997 (NSW) s 33B ‘The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out’. Note however that this power does not extend to ‘land used only for residential purposes’. To enter residential land a warrant is required – ss 33B(3) and 33C.
As in the United States there is also a common law power to enter premises, without a warrant in ‘exigent circumstances’. In Kuru v State of New South Wales  HCA 26 the High Court said:
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle.
Once the firefighters are lawfully ‘on scene’ they can’t help observing that which is in plain sight or even hidden if they reveal it in the course of their duties. Having observed material that reveals criminal conduct they can report it to police. Whether they should or not is another matter. One should consider issues such as the seriousness of the offence and the potential impact it will have on the relevant emergency service. For example if what is detected is that the homeowner has been consuming a prohibited drug, would it serve the public interest if that was reported to police? People would be less willing to trust the fire service (or the ambulance service and paramedics will be exposed to that sort of conduct more than fire fighters) if they get ‘dobbed in’ for these sort of offences. On the other hand, fire fighters may observe evidence of arson, child sexual assault, child pornography, murder or attempted murder, sexual servitude, significant drug cultivation or manufacturing or the like. These are serious offences that should be reported to police.
Further, in New South Wales, the Crimes Act 1900 (NSW) s 316 says:
If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
A “Serious indictable offence” is an offence with a maximum penalty of 5 or more years’ imprisonment (s 4).
Section 316 is a complex way of saying that if a person (in our context, a fire fighter) has information that would assist police to identify and convict an offender, then that person commits an offence if they do not give that information to police. It follows that if the RFS responds to a situation legally and whilst there fire fighters discover evidence of a “Serious indictable offence” then there is an actual obligation to report that matter to police.
The simple answer to the question ‘[if] the RFS responds to a situation legally and whilst there discovers evidence of illegal activity[, c]an they report that activity to authorities?’ is YES.
Further if the evidence suggests a “Serious indictable offence” the members may commit an offence if they fail to report it.
For related posts see:
- Paramedics and Patient Confidentiality number 2 (July 23, 2015); and
- Potential role conflict – NSW Police officer as SES volunteer (amended) (December 3, 2015).