Today’s correspondent wants to know about collecting emergency service uniform and memorabilia,
… what authority can/do collectors need? Obviously, the misuse of uniforms is a concern. The reason I ask is I am with the VRA and admin of their page and an autistic teenager has been hassling us for uniform items. Also of concern is that he appears to have a FRNSW Commissioner helmet and epaulettes. What advice can you give please?
The reference to VRA and FRNSW implies (and I’ll infer) that my correspondent is from NSW.
With respect to a collector, the State Emergency and Rescue Management Act 1989 (NSW) says, relevantly:
(2) A person who:
(a) uses or displays emergency services organisation insignia, or
(b) impersonates an emergency services organisation officer,
with the intention to deceive is guilty of an offence.
Maximum penalty: 50 penalty units.
(2A) A person who:
(a) impersonates an emergency services organisation officer with the intention to deceive and purports to exercise a function of such an officer, or
(b) impersonates an emergency services organisation officer with the intention to deceive in order to facilitate the commission of an offence,
is guilty of an offence.
Maximum penalty: 100 penalty units.
(3) A person is not guilty of an offence under this section if:
(a) the person’s conduct is authorised by the relevant emergency services organisation, or
(b) the person establishes that the conduct is for the purposes of a public entertainment, or
(c) the person establishes that the person has a reasonable excuse.
(4) In this section:
“emergency services organisation insignia” means:
(a) any items (being uniforms, insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to an emergency services organisation (other than the NSW Police Force) or as being used by an emergency services organisation officer, or
(b) any parts of any such items, or
(c) any reasonable imitation of any such items or parts, or
(d) any thing or class of thing prescribed by the regulations as being within this definition (whether or not it may already be within this definition),
but does not include any thing or class of thing prescribed by the regulations as being outside this definition.
“emergency services organisation officer” includes an employee, member, volunteer or any other person who exercises functions on behalf of an emergency services organisation (other than the NSW Police Force).
There are no things ‘prescribed by the regulations’ as being in, or out, of the definition of “emergency services organisation insignia”.
For the collector of emergency services uniforms, an offence is only committed if he or she uses the uniform or insignia to impersonate an emergency services officer (ss 63B(2) and (2A)) with an intent to deceive. Merely having the items is not an offence, so a collector can choose to collect shoulder patches, uniforms, hats etc whatever he or she likes. And note that there are defences set out in s 63B(3) so wearing a uniform because a person is an actor and playing a role is not an offence.
The person who sells or swaps uniform items
Of more interest is s 63B(1) that says:
A person who manufactures or sells emergency services organisation insignia is guilty of an offence.
Maximum penalty: 50 penalty units.
Putting aside ‘manufacture’ the offence is committed by selling insignia. A member who, if asked, sells any part of his or her uniform to a collector, or a shop such as an op-shop that sells an emergency service uniform, commits an offence. Sell is defined to mean:
… sell, exchange or let on hire, and includes:
(a) offer, expose, possess, send, forward or deliver for sale, exchange or hire, or
(b) cause, suffer or allow any of the above.
Merely giving away items so giving a gift to a collector is not selling, exchanging or letting on hire so that would not be caught by s 63B(1). If a person gives their uniform in exchange for money that is a sale; if they give it in exchange for a non-money benefit (eg swapping shoulder patches with an officer from another service) then that is ‘exchange’ and would be included as part of the extended definition of ‘sell’. The defences in s 3 can still apply, so there is a defence if the ‘sale’ is ‘authorised by the relevant emergency services organisation’, or it is accepted that there is a ‘reasonable excuse’. That may apply if for example a contingent from an Australian service is deployed or training with colleagues from an overseas service and memorabilia is exchanged to display on the walls or each service or the like. But, relevant to the question I was asked, it is worth noting that the sale or exchange of uniform items may be an offence.
The ‘Nemo dat’ rule
There is another issue when it comes to uniforms and that is the question of property – ie who owns them. I would anticipate that it would be accepted that uniform items issued by a service remains the property of that service. There is legal rule that, because we can, we lawyers say in latin, it is Nemo dat quod non habet (or the ‘Nemo dat’ rule). The Oxford Online Reference says ‘[Latin: no one can give what he has not got] The basic rule that a person who does not own property (e.g. a thief) cannot confer it on another …’ Or, in English, you cannot give what you don’t own.
If a member of the emergency services has been issued with some uniform or uniform items that remain the property of their service, they can’t pass ownership to someone else. If they do give the items to another person, the items remain the property of the emergency service and they can seek to get those items back. The person who receives the items in good faith (eg they swamp them thinking the person giving them has the right to do so) may not be guilty of any crime, but they still don’t own the uniform items as the person giving them had no property to transfer – Nemo dat!
Larceny by a bailee
The member who gives away their uniform or uniform items may be guilty of an offence such as ‘larceny [or stealing] by a bailee’ (Crimes Act 1900 (NSW) s 125). A bailee is someone who has been entrusted with someone else’s property and they are guilty of stealing that property if they treat it, and dispose of it, as if it where their own.
Larceny by a bailee won’t be relevant where the uniform items or items with uniform insignia (bags, hats, off-duty shirts etc) are items that the members buy for their own use. These belong to the member so there is no issue of being a ‘bailee’, but all of the discussion above about selling or exchanging items with emergency service insignia continues to apply. So how do companies justify selling bags and shirts with the logos on them? Presumably they have some permission or endorsement from the service involved and hopefully only sell those items to members of those services.
The answer to the question asked is that people don’t need any special authority to collect emergency service memorabilia, they just must not use the memorabilia to deceive anyone or to impersonate an emergency service officer. The restrictions are not on the collector but the people who might sell or swap emergency service insignia. People who have been issued with uniforms must not sell or swap those items and if they do, and if the items were issued to them but remain the property of the service, the person who takes them does not then become the owner.