Today’s correspondent comes from NSW RFS. The question relates (again) to the status of volunteer brigades see:
- Constitutions for NSW RFS brigades (May 21, 2014);
- How autonomous are NSW Rural Fire Brigades? (February 25, 2015);
- RFS brigades entering into a contract (March 1, 2015); and
- Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017).
Today’s question says:
The RFS have just released the new 2018 model brigade constitution. They, to their credit have gone through a very comprehensive process in delivering a model to brigades that standardizes but also maintains some flexibility for brigades to personalize their process’s. More importantly it is up to date with current legislation etc.
Our brigade is one of the older, formerly community, then council based “Bush Fire Units”. In the early 2000’s when our current constitution model was released, there were concerns within the brigade around liability, to itself and to its members. At that time the then brigade members made a decision to become an Incorporated Association in what they hoped would then give them additional protection under the Associations Act as I understand it.
I believe a number of brigades had done so at that time.
The previous model constitution allowed brigades in the past to apply additional clauses/rules etc (subject to approval of course and within the spirit of the constitution etc) and as such, clauses were added to ours to ensure we were compliant with the Association Act, specifically around the requirement of wording on the subject of liability. The new model allows us to modify brigade rules to a certain extent (eg, voting methods etc) but does not allow for any alteration or addition to its body for any of these other such amendments. As such we believe we would not be fully compliant with the “Associations” model. The service has encouraged us to revoke our incorporation as all liability for the brigade and its members are now covered under the NSW Rural Fire Act. Many/most brigades have long before done this.
Finally to my question, is there any advantage or in fact disadvantage in us remaining as an incorporated entity?
The new constitution is available online as Service Standard 2.1.2 Brigade Constitution.
An incorporated entity under the Associations Incorporation Act 2009 (NSW) is a legal entity, separate from its members, that can enter contracts and sue and be sued (s 19). An incorporated entity must have rules that comply with the requirements of the Act and must meet management and financial obligations under the Act.
A brigade of the NSW Rural Fire Service is established by a ‘local authority’ (but for all practicable purposes, that is the Commissioner of the RFS – see Rural Fires Act 1997 (NSW) s 15 and Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades, [1.2])). A brigade is not a separate legal entity and is subject to the direction and control of the Commissioner. The Rural Fires Regulation 2013 (NSW) r 4 says that ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority…’ (ie the Commissioner).
In short, a group of people who get together and form an associated entity called the Kickatingalong Bushfire Brigade Inc. have created an entity that is different from the Kickatingalong Bushfire Brigade established by the Commissioner of the Rural Fire Service. The Kickatingalong Bushfire Brigade Inc. is not a brigade created by or under the Rural Fires Act 1997 (NSW). Its members and the managers are not acting pursuant to the RFS Act in their management of the Brigade. Under what authority they are acting on the fire ground could well be open to question.
In short there is every advantage in giving up one’s incorporated status. If you are afraid of legal liablity it’s better that any plaintiff sue the Crown in Right of NSW and look to the NSW Treasury Managed fund rather than sue the Kickatingalong Bushfire Brigade Inc. and hope they have insurance. In terms of management of the Brigade the captain etc are subject to the direction of the Commissioner but a management committee of the Kickatingalong Bushfire Brigade Inc. has obligations that they must personally meet under the Associations Incorporation Act.
I’m not usually this strong but here goes – you’re completely mad to try to retain incorporated status under the Associations Incorporations Act. You are just making life complex, creating two Acts to comply with and putting any protection you have as members of the RFS at risk. If actions can be attributed to the Kickatingalong Bushfire Brigade Inc then it will be the managers of the incorporated entity that have to deal with it rather than simply say ‘we’re servants and agents of the RFS, Mr Commissioner, it’s your problem’ (whatever the problem is).