This came as a comment on the post RFS Fatal Collision and s 128 of the Rural Fires Act (October 14, 2016).  The answer is too long to put up as a comment, so it gets a post on its own, and if you’re not a lawyer, this may be hard going!

The comment was:

Thanks for your posts on the M1 Collision. They are quite helpful.

Regarding liability exclusion in the NSW Rural Fires Act, I understand that Section 128 does not apply to criminal liability, and I also understand why it would not apply to a motor vehicle collision but I question your second point – that it applies only to the execution of powers under the act.

You have quoted case law on a similar provision in the Fire Brigades Act 1909, but the relevant clause in that act states that the exclusion applies when a firefighter is “exercising any powers conferred by the Act or the by-laws”, whereas the Rural Fires Act clause states that the exclusion applies when a firefighter does or omits to do a matter or thing in good faith “for the purpose of executing any provision (other than section 33) of this or any other Act”. Isn’t the meaning of the term ‘provision of this or any other Act’ much broader than the meaning of the term ‘powers conferred by the Act’? Indeed, you describe the liability exclusion clause itself as a ‘provision’.

The common understanding of the liability exclusion section of the Rural Fires Act is that it applies whenever a member of the RFS is carrying out any statutory function of the RFS, whether a power is involved or not. Doesn’t the term ‘provision of this or any other Act’ in the Rural Fires Act liability exclusion clause include the ‘Functions of the Service’ under section 9 of the Act?

To answer that I set out below the text of the Fire Brigades Act 1909 (NSW) s 46 (because it was the subject of discussion in Ardouin’s case, discussed in the first post), the Bushfires Act 1949 (NSW) s 48, the Fire Brigades Act 1989 (NSW) and the Rural Fires Act 1997 (NSW) s 128.  The key words are highlighted.

Fire Brigades Act 1909 (NSW) s 46 Bushfires Act 1949 (NSW) s 48
The board, the chief officer or an officer of the board exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers No proceedings whether at law or in equity shall lie or be made or allowed by or in favour of any person against the Crown, the Minister, the Minister for Local Government, a member of the Committee, a council, an officer or employee of the Board of Fire Commissioners of New South Wales or the Forestry Commission of New South Wales, a fire control officer, a fire patrol officer, a captain, deputy captain, group captain or deputy group captain of a bush fire brigade, or any person acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act.
Fire Brigades Act 1989 (NSW) s 78 Rural Fires Act 1997 (NSW) s 128
A matter or thing done, or omitted to be done, by the Minister, the Commissioner, any member of staff of Fire and Rescue NSW, any member of a fire brigade, any member of a community fire unit or any person acting under the authority of the Commissioner does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand. A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

The gist of the question is ‘do the 1997 words “executing any provision” mean anything significantly different to the 1909 words “exercising any powers”?’   I don’t think they do.

Fire Brigades Act 1909 (NSW) s 46 and Bushfires Act 1949 (NSW) s 48

In Stephens v Stephens (1970) 72 SR (NSW) 459 the NSW Court of Appeal had to consider s 48 of the Bushfires Act 194.   In this case there was a collision with a fire appliance that was stopped by the side of the road whilst the crew were fighting a bush fire. A passenger in the vehicle was injured and sued the driver of the firefighting vehicle. The driver relied on s 48 of the Bush Fires Act 1949.  It was held that the Act only ‘confers immunity … only in respect of things done pursuant to an authority which the Act itself confers’.   The acts which the brigade were engaged in, that is fighting a fire, was not covered because ‘… the Act did not confer authority … to perform the acts of which the plaintiff complained, such acts not being prohibited by the general law and requiring no authority’ (p 459).

Mason JA (with whom Moffit JA agreed; Manning JA dissenting)  said (at 462) that although ‘there was some difference in language in s 48 compared to s 46 of the Fire Brigades Act 1909 …’ the difference was not material.  He went on to say (p 463)

The section [s 48] should be regarded as conferring immunity from action on the defendant as a person acting in execution of the Act only in respect of an act done pursuant to an authority which the Act itself confers. If the provisions of the Act conferred authority on the defendant to have the truck of which he was the driver stationary on the highway, with its motor idling, while water from the truck was sprayed on the seat of the fire, then s 48 has the effect of protecting the defendant from the consequences of performing the act negligently and occasioning injury to the plaintiff.

But the Act did not confer any particular authority.

[The Act] does not in terms authorize the putting out of bush fires, evidently for the reason that the extinguishment of a bush fire is not in itself an unlawful act which requires an authorization by statute.

In Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 Jagot J said (at [500]) that Stephens v Stephens is authority for the proposition that the “… predecessor provision to s 128 (s 48 of the Bush Fires Act 1949 (NSW)) was engaged only where the conduct in question involved the exercise of a specific statutory authority not otherwise lawful.”

Discussion #1

The outcome of those decisions is that the use of the words used in 1909 – ‘exercising any powers conferred by this Act’ are not significantly different from the words used in 1949 – ‘acting in the execution or intended execution of this Actfor the purposes of this Act’. 

Those Acts only came into play where the conduct in question was authorized by the legislation because, without legislative authority, the acts in question would be otherwise unlawful.

Rural Fires Act 1997 (NSW) s 128

The question now is do the 1997 words – ‘for the purpose of executing any provision … of this or any other Act’-  mean anything significantly different to the 1949 words –acting in the execution or intended execution of this Actfor the purposes of this Act’?

One refers to ‘executing any provision’ and the other the execution of ‘this Act’ but the key concept is still ‘execution of’.

Section 128 was discussed in detail in Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45 (the Canberra bushfires litigation).   In that case both the trial judge and the Court of Appeal agreed that the defendant (New South Wales) could rely on s 128 as the officers of the Rural Fire Service and the Forestry Commission were acting in good faith.  The plaintiff’s in that case argued (at [499]) that “a strict interpretation of s 128 requires the identification of a provision of the Act said to have been executed before s 128 will apply”.   Jagot J disagreed.  She said (at [503]; emphasis added):

The plaintiffs’ submissions about s 128 of the Rural Fires Act fail to confront the true nature of what was occurring between 8 and 18 January.  In determining the strategy, the incident controller was exercising powers under the Rural Fires Act.  For the reasons given above, the powers being exercised, to co-ordinate all agencies and determine the overall strategy to deal with the fire, only existed because of the Rural Fires Act and could not lawfully be done without statutory authority.  It follows that the plaintiffs’ submissions are based on a misconception about the operation of the Rural Fires Act and how it governed every strategic decision made or not made by the incident controllers between 8 and 18 January.

With respect to the difference between s 48 of the 1949 Act and s 128, Katzmann J said (at [586]):

Section 128 of the Rural Fires Act replaced s 48 of the Bush Fires Act.  Section 48, in terms, provided protection from liability only for acts and not omissions.  It will be recalled that the expression used there was “acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act”.  When the Rural Fires Act was introduced, it is plain that Parliament intended to expressly extend the protection from liability to omissions as well as acts.

There is no suggestion however that the Parliament intended to broaden the scope of operation of the section other than to include omissions.   Katzmann J did discuss the phrase ‘For the purpose of executing a provision of an Act’.  She discussed the difference between s 46 of the 1949 Act and s 128.  She said (at [697]):

Section 46, it will be recalled, protected the relevant officers from liability for “damage caused in the bona fide exercise” of the powers conferred by the Act or the by-laws.  It did not refer to acts or omissions.  Nor was it expressed to apply where the officers had conducted themselves “for the purpose of executing” a relevant statutory provision.  Nevertheless, the decision in Ardouin has been applied to provisions very similar to s 128.  In particular, it was applied in Stephens [v Stephens; discussed above].

Her Honour (at [704]-[705] referred to some non-firefighting cases.  She said:

In Ombudsman v Laughton (2005) 64 NSWLR 114 … Spigelman CJ said (at [25]) that the words “executing this or any other Act” in that section did not necessarily extend to the performance of any statutory function or the exercise of any statutory power.  Handley JA said (at [29]) that the phrase “in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act” limited the protection offered by the section to “acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act”.

In Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506 … Jagot J … held:

A statutory office-holder executes an Act by doing something the Act requires or authorises to be done.  Acts, matters or things done or omitted to be done for the purpose of executing an Act, accordingly, occur in the process of doing that which the Act requires or authorises.

With respect to the NSW RFS and the Canberra fires, Her Honour said (at [706]-[708]):

… developing and implementing a strategy for the fighting of the fires the incident controllers were doing something which was both authorised and required by the Rural Fires Act…

In contrast to the position in Stephens, the decisions in question derived their authority from the statute.  As Jagot J has explained in some detail, the powers the incident controllers were exercising “only existed because of the Rural Fires Act”.  The Rural Fires Act gave effect to the plan of operations.  The plan of operations was the means by which Ms Crawford became incident controller and therefore the person “responsible for the co-ordination of the firefighting activities of all involved organisations and strategic decisions”.  The plan of operations conferred functions on Ms Crawford (s 55(1)(b)), who was required, as far as practicable, to carry the plan into effect (s 60(6)).  At 1 pm on 9 January Mr Arthur became incident controller because of a declaration the Commissioner made under s 44 of the Act.  In accordance with the plan of operations, he then became responsible for coordinating the fire fighting activities of all involved organisations and the making of strategic decisions.  The plan of operations conferred functions on Mr Arthur (s 55(1)(b)) and he was required to take the plan into account (s 44(3)).  Without this authority, neither Ms Crawford nor Mr Arthur would have had the power to commandeer the resources necessary to fight the fires or to make the strategic decisions.

Moreover, the strategy was developed and implemented for the purpose of executing provisions of the Act that conferred powers “which of their nature [would] involve interferences with persons or property” and “detriment or disadvantage to others, either necessarily or in consequence of [their] improper or faulty exercise” (Ardouin per Dixon CJ at 109–110).  The strategy involved containing the fires.  That meant that vegetation had to be removed by rake-hoe or bulldozer or both.  The powers required to do these tasks were conferred by s 25 of the Act, which relevantly permits the destruction or removal of vegetation and the establishment of fire breaks on land by officers of a rural fire brigade where persons or property are, or are likely to be, endangered by fire.  The strategy also involved some back-burning.  According to the definition in the Fire Management Manual published by the NPWS, back-burning is starting a fire intentionally with the object of consuming the fuel in the path of a wildfire.  It is unlawful to light a fire without giving notice or obtaining some form of permit, approval or authority (ss 86, 87, 88).  Fire fighting authorities are exempt from the requirement to give notice or obtain a permit if lighting a fire for the purpose of back-burning (ss 86(2), 87(2), 88(2)) and are exempt from the requirement to obtain various other approvals or authorities if carrying out an emergency fire fighting act (Pt 6A).

Discussion #2

In Ardouin’s case the High Court said that a section like s 128 had to be strictly construed.  They said that s 46 of the 1909 Act only applied where the relevant officer was doing something that he or she was only authorised to do by statute and that would be an illegal interference with the rights or property of another without the relevant statutory authorisation.

In Stephen’s case the NSW Court of appeal said that, even though the 1909 Act referred to an action taken ‘exercising any powers’ and the 19 49 Act referred to ‘acting in the execution or intended execution of this Act’ there was no significant difference between the provisions and the immunity would only apply where the action taken was ‘an act done pursuant to an authority which the Act itself confers’.  If no legislative authority was required, then the section did not apply.

In Electro Optic Systems v NSW the premise of the need for statutory authority was not disputed however the claim that the defendant had to point to a particular section for a particular action was.  The court took a broad view of all the actions that were being undertaken on that day but it still applied only to actions that ‘could not lawfully be done without statutory authority’.  There needs to be reference to ‘something the Act requires or authorises to be done’ and not just ‘any statutory function or the exercise of any statutory power’.  In determining that s 128 was available the court pointed to many provisions that authorised the various incident controllers to take action that they could not take without that statutory authority such as directing fire agencies and developing a strategy that required the use of various authorities, even if the incident controllers themselves were not personally exercising those powers – eg they were not the ones setting backburns or removing vegetation.

The questions asked

What I was asked was:

Isn’t the meaning of the term ‘provision of this or any other Act’ much broader than the meaning of the term ‘powers conferred by the Act’?

No, I don’t think it is ‘much’ broader.  The discussion in Electro Optics may have been broader than in earlier cases because of the nature of the incident being a s 44 fire not just a single fire commander making a decision to park or pull down a wall.  But even in that context the court held that the immunity applied when the agency was relying on statutory authority, or power, to do what they would otherwise not have the authority to do.

The common understanding of the liability exclusion section of the Rural Fires Act is that it applies whenever a member of the RFS is carrying out any statutory function of the RFS, whether a power is involved or not. Doesn’t the term ‘provision of this or any other Act’ in the Rural Fires Act liability exclusion clause include the ‘Functions of the Service’ under section 9 of the Act?

The statutory functions of the RFS are set out in s 9(1).  It says:

The NSW Rural Fire Service has the following functions:

(a) to provide rural fire services for New South Wales,

(a1) to issue public warnings about bush fires and bush fire threats in the State for the purpose of protecting life and property,

(b) to assist other emergency services organisations at incidents and at emergencies under the control of those organisations,

(b1) to provide advisory services (whether within or outside the State) relating to fire fighting and other matters with respect to which it has expertise,

(c) to carry out such other functions as may be assigned to it by or under this or any other Act,

(d) to do anything necessary for, or incidental to, the exercise of its functions.

That is not dissimilar to the list that was set out in the Bushfires Act 1949 (NSW) s 22 and discussed in Stephen’s case.   In that case mere reference to the functions was not sufficient.  It is still the case that there are many things the RFS can do to meet the functions but which require no specific authority.  The RFS does not need any authority to contact a radio station and ask them issue a warning, but it may do so if it wants to require them to do so.  There is no need for any authority to warn people of danger, but there is if the RFS wants to compel them to evacuate.

If s 128 did apply to any action that a person believes is ‘carrying out any statutory function’. If it did it would be an unacceptable licence to do anything.  It would mean a firefighter or the RFS or the State could rely on the section if someone did something and said ‘I honestly believed what I did was to provide rural fire services’ even if what they did was something for which there is no authority, eg commandeer private assets, detain a person even for their own safety or because of a fear that they may start a fire etc.  Section 128 is not a licence to do whatever seems like a good idea at the time, rather it is is an indemnity from civil liability for doing what the relevant Act authorises or permits even when it is done negligently: ‘… it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently’ (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, 128( Windeyer J)).

Conclusion

In light of the case law ‘executing a provision of the Act’ does not, in my view, mean attempting to fulfill the functions of the RFS.  It involves doing something (or choosing not do something) that ‘the Act requires or authorises to be done’.   Section 9(1) does not ‘require’ or ‘authorise’ anything to be done.