A member of a local community resilience committee in Victoria writes:

I am one of a number of community members of a community resilience committee (CRC) established by the local council in conjunction with Emergency Management Victoria.  8 community members were appointed to the CRC and we are awaiting confirmation that the appointments were formally approved by council.

As the activities of the CRC have increased with the recovery & reconstruction programs now underway, we have looked critically at our legal status as volunteers, and the potential personal liability issues associated with our participation.

We see the principal role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure; but the CRC’s purpose includes supporting principles of accountability and good governance, with specific responsibility to “ensure actions are flexible and responsive to emerging community needs…”.  While the risk of direct legal action may be low, there may be disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies on re-building and other measures, and the role or advocacy of community members of the CRC may be called into question. We don’t put it too highly, but small, relatively isolated communities can have very strong and divergent views, especially where self-interest and personal property assets are in play…

We have noted the volunteer provisions of the Victorian Wrongs Act, and specifically section 37.  We have also been advised (informally at this stage) that we are covered by the volunteer emergency worker provisions of the Emergency Management Act.

I appreciate that you do not offer or provide legal advice but would appreciate any comments you have on the respective merits of immunity under the EMA and what seems to be the more expansive protection of the Wrongs Act, and how this might be formally confirmed.

The creation of community resilience committees was a recommendation of the Review of the 2010–11 Flood Warnings & Response (2011).  The flood review recommended (recommendation 93; emphasis added) that:

… the state comprehensively pursue the objective of achieving (where possible) the priority outcomes of the National Strategy for Disaster Resilience and the imperative of shared responsibility, in particular by:

  • requiring that local knowledge is considered as a critical component of all phases of emergency management
  • involving local communities in the development and ownership of community resilience plans based on an ‘all hazards’ approach and tailored for the specific needs of each community
  • encouraging local communities to form resilience committees to develop and administer community resilience plans
  • nominating Victoria Police as the lead agency in initiating the strategy to develop community resilience committees; and
  • requiring emergency service agencies to consult and engage with local community resilience committees in the preparation, planning, response and recovery phases of emergency management.

The development of community resilience committees appears to be part of the Community Resilience Framework identified by Emergency Management Victoria.    Two of the objectives of the Victorian Strategic Framework to Strengthen Victoria’s Social Cohesion and the Resilience of its Communities (2015) are:

  1.  Empower communities … to build community resilience to prevent violent extremism.
  2. Develop our understanding of the driving factors that strengthen or undermine social cohesion and community resilience.

No doubt the development of community resilience committees is part of the work to achieve those objectives, however the committees are not provided for in either the Emergency Management Act 1986 (Vic) or the Emergency Management Act 2013 (Vic).  Other than in the title of the State Crisis and Resilience Council (Emergency Management Act 2013 (Vic), Part 2) resilience is not mentioned in either Act.

As my correspondent has noted, the “role of the community members is informing, identifying, providing local knowledge and feedback etc, rather than approving/executing projects or committing expenditure”.    Given that role it is hard to see how issues of ‘personal liability’ could ever arise?  What is the committee doing that they could be liable for?  Even if there are ‘disaffected property owners who react hostilely to decisions and/or restrictions imposed by council or other agencies …’ it is indeed those agencies that are the decision makers.    If one questioned ‘the role or advocacy of community members of the CRC’ I suppose there could be some sort of administrative attempt to perhaps get the members removed if they were failing to perform their duties, but that seems pretty far fetched.

In any event, who ‘owns’ the Committee?  The Flood Review recommendation was that Victoria Police would take the lead in developing community resilience committees but my correspondent says the committee has been formed by the local council and that the members’ appointments require confirmation by the council. If it’s a committee of council, then it follows that if there is any liability for the processes of the committee it must belong to the council.

The problem with asking questions in the abstract is that the answer must also be abstract.  I just can’t think of any circumstances, malice and fraud excepted, where a member of the community resilience committee could be personally liable to anyone for anything they do.  If there was a specific scenario put to me one could consider issues of whether or not there was a duty of care and whether or not the committee’s actions were reasonable and whether or not it was the committee that was the cause of any harm.    In the absence of some specific scenario where it was thought that liability could arise the answers must be necessarily general.

But let us look at the law.  The ‘volunteer emergency worker provision of the Emergency Management Act’ 1986 (Vic) s 37 says:

A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker.

A “volunteer emergency worker” is ‘a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency response plan or the state emergency recovery plan applies’.  An ‘emergency activity’ is ‘”emergency activity” ‘performing a role or discharging a responsibility of an agency in accordance with the state emergency response plan or the state emergency recovery plan’ (Emergency Management Act 1986 (Vic) s 4).

The community resilience committees are not mentioned in either the State Emergency Response Plan or the State Emergency Relief and Recovery Plan.  Further it is clear that the role of the committee, whilst focused on building resilience to an emergency or hazard, are not working in emergency circumstances.    The terms of reference of the particular committee that my correspondent belongs to makes no mention of either the 1986 or 2013 Act.   Without going through every chapter and verse of the Emergency Management Manual Victoria and the Community Recovery Handbook it seems implausible to suggest that the members of the Committee are ‘emergency workers’ for the purposes of the Emergency Management Act 1986 (Vic).

The Wrongs Act 1958 (Vic) s 37(1) says:

A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.

Community work is defined in s 36 and includes work done ‘for the purpose of promoting the common interests of the community generally or of a particular section of the community’.  I would have no doubt that the work of the Committee is ‘community work’.

If that is the case, then the Wrongs Act provides the necessary legal protection.  The Act goes on to say (s 37(2)) ‘Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation’ which can include a council (s 34).  So if there is any liability, it belongs to the council that established the committee.

It should be noted that volunteer members of the emergency services (the Country Fire Authority, Victoria SES and a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’) are not ‘volunteers’ for the purposes of the Wrongs Act.  This ensures that their legal protection is provided by the emergency services legislation and avoids confusing arguments about whether the scope of one protection is different to the other.  So a member of the community resilience committee, if they have legal protection, have it from EITHER the Wrongs Act or the Emergency Management Act – but they can’t rely on both.  In my view they are not a ‘volunteer emergency worker within the meaning of the Emergency Management Act 1986’ so their legal protection is provided by the Wrongs Act 1958 (Vic).

Conclusion

I just can’t imagine any scenario, fraud and malice excepted, where liability could be an issue.  In my view, if such a situation could be thought of, the members of the committee would enjoy the legal protection provided by the Wrongs Act 1958 (Vic).  In my opinion they are not volunteer emergency workers within the meaning of the Emergency Management Act 1986 (Vic) so the liability protection provision in that Act (s 37) will have no application.

There is of course no way that any of these can be ‘formally confirmed’.  Even if a minister or the Crown Solicitor gave an opinion that either the Wrongs Act or the Emergency Management Act applied, or didn’t apply, that is just an opinion.  Resolution of the question would require someone to sue and an argument in court, and a formal ruling from a judge.  It is the courts that determine questions of law.  Given I can’t see any situation where the members will be sued, I expect this will remain, forever a question of hypothetical interest only.