It is being reported that the Prime Minister has announced that the commonwealth will make money available to pay $300/day to NSW Rural Fire Service volunteers involved in the current extended fire campaign, to a maximum of $6000 per person –  Jade Macmillan, ‘Scott Morrison announces compensation payments for New South Wales volunteer firefighters’ ABC News (Online) 29 December 2019.

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

Working on supposition, I would infer that the payments will be made to the states in the form of a ‘tied grant’ (Australian Constitution s 96). That section says:

During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

The Parliament has not provided to stop tied grants and this is a key feature in the federal relationship. The Commonwealth can give money to the states subject to ‘terms and conditions’ that it is spent in a particular way, in this case on providing the compensation to the RFS volunteers.  That would be consistent with the report that ‘payments will be administered by New South Wales’.

The form of funding would also explain why the payments are currently limited to New South Wales but that ‘… other states and territories could request a similar scheme based on their level of need’.

Arguably the Commonwealth cannot discriminate against citizens on a state-by-state basis (Australian Constitution s 117; though ‘The question whether section 117 limits the lawmaking power of the Commonwealth Parliament has not yet been conclusively resolved by the High Court’ Commonwealth of Australia, Australia’s Constitution: With Overview and Notes by the Australian Government Solicitor (2010) p. vii). In any event making the payment to New South Wales and not to individuals would avoid that issue. That is the Commonwealth would be in some difficulty if it made an allowance that said ‘Residents of NSW get this money but not residents in other states…’ but it has no such difficulty making a grant available to NSW and to other jurisdictions on request.

The problem with all schemes is that will involve arbitrary lines and with arbitrary lines, someone always falls on the wrong side.

We are told these payments will be made available ‘to NSW Rural Fire Service (RFS) volunteers who are self-employed or working for small or medium-sized businesses and who had been called out for more than 10 days this fire season.’  Mr Morrison is quoted as saying “We expect larger companies to provide their employees with 20 days of emergency services leave.”

The Fair Work Act 2009 (Cth) s 108 provides that employees are to have community service leave for, amongst other things, emergency service work, but it does not say that the leave must be paid except where it is to serve on a jury (https://www.fairwork.gov.au/leave/community-service-leave).  Section 772(1) says:

An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons: …

(h)       temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

It may be that large employers ‘provide their employees with 20 days of emergency services leave’ but it does not follow that it must be paid leave and so employees may miss out.  Of course the current publicity and the decision of the Commonwealth to give Commonwealth employees 20 days paid leave will certainly bring moral pressure to large employers to behave has, and to be seen to behave as, good corporate citizens – James Hall ‘Woolworths extends paid leave for volunteer firefighters’ news.com.au (27 December 2019).

The other arbitrary line is that the payments are limited (we are told) to RFS volunteers.  There have been declared states of emergency in NSW and even without a declaration the NSW Emergency Management Plan comes into play (ie it does not need to be formally ‘activated’ (State Emergency and Rescue Management Act 1989 (NSW) s 13). Under the State EM Plan the following agencies, which I infer rely on volunteers, have functional roles and may be involved in the current emergency include:

  • Ambulance Service of NSW (Honorary Ambulance Officers appointed under the Health Services Act 1997 (NSW) s 67H));
  • NSW Police Force (see Volunteers In Policing);
  • State Emergency Service;
  • New South Wales Volunteer Rescue Association Inc; and
  • Volunteer Marine Rescue NSW.

The NSW response has also been assisted by interstate volunteer firefighters.

Add to that the Participating and supporting organisations.  A participating organisation includes;

 … volunteer organisations … [that] have either given formal notice to Agency Controllers or Functional Area Coordinators, or have acknowledged to the SEMC, that they are willing to participate in emergency response and recovery operations under the direction of the Controller of a Combat Agency, or Coordinator of a Functional Area, or an EOCON, and with levels of resources or support as appropriate to the emergency operation.

A supporting organisation is an organisation that has ‘… indicated a willingness to participate and provide specialist support resources.’

Participating organisations in the Welfare Services Functional Area Supporting Plan (June 2018) that I understand are likely to use volunteers are:

  • ANGLICARE;
  • ADRA (Adventist Development and Relief Agency);
  • Australian Red Cross (NSW);
  • The Salvation Army; and
  • Uniting Church in Australia (Synod of NSW and ACT)

St John Ambulance Australia (NSW) is a participating organisation in the New South Wales Health Services Functional Area Supporting Plan (NSW HEALTHPLAN) (2013) and there are a large number of volunteer organisations listed as participating and supporting organisations in the Agriculture and Animal Services Functional Area Supporting Plan (2017).

It follows that there are likely to be many volunteers, currently engaged away from work and no doubt losing income that will not be covered by a scheme that only compensates RFS volunteers.

Discussion

Of course, one has to start somewhere and given the growing pressure on the Federal government to be seen to be doing something this is not an unsurprising start. Arbitrary lines – eg $300/day for a minimum of 10 days, maximum of 20, and only paid to RFS volunteers – make for easy administration.  It would be much more complex if it was compensation payable to anyone who could show that they had been involved in a volunteer response and had lost income as a result. But, as noted above, whenever arbitrary lines are drawn, deserving people are going to fall on the wrong side.  No doubt there will be plenty of hard cases to be found where someone can say ‘it’s unfair that my neighbour got $6000 because he/she had an RFS uniform on when I was also deployed, but in a different uniform’.

Making policy on the run will also lead to arbitrary outcomes.  Hopefully in the wash up to these events, having established the precedent, the Commonwealth and the States and Territories will develop a more comprehensive scheme to be used in the next long term emergency whether that’s heatwave, flood or fire.