Reviewing CFA disciplinary decisions
Today’s correspondent asks:
… can VCAT [Victorian Civil and Administrative Appeals Tribunal] hear matters pertaining to the suspension of volunteers under CFA regulation 47 or is that not considered an administrative “decision” for the purposes of VCATs charter? Alternatively, if a volunteer was removed after a decision by the Chief Officer, could VCAT review that decision?
For a related post see Natural Justice and the SES (September 28, 2015) which dealt with VCAT’s jurisdiction and Victoria SES. VCAT’s ‘review’ jurisdiction is (Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 42; emphasis added) ‘… jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker’. In Chapman v Victoria State Emergency Service (Review and Regulation)  VCAT 1402 (discussed in that earlier post) it was said (at ):
As a creature of statute, the tribunal only has the powers it is granted through the VCAT Act or under another enactment. Regulation 18 [of the Victoria SES regulations] is an example of the legislature granting the tribunal review jurisdiction…
The power to discipline was in r 18. The power to appeal to VCAT was in r 22 which said ‘A registered member or probationary member may apply to the VCAT for review of any decision made by the Authority under regulation 18 or 20’ (). That case was decided in 2015. Today the relevant regulations are the Victoria State Emergency Service Regulations 2017 (Vic) but r 25 still says ‘A registered member or a probationary member may apply to VCAT for a review of a decision made by the Authority under regulation 21(2), 23(1) or 24(1)’.
Let us then look at the CFA regulations. Regulation 47 of the Country Fire Authority Regulations 2014 (Vic) says:
(1) At any time before the Chief Officer has caused an investigation to be conducted under regulation 46(1), the Chief Officer or an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until the investigation report concerning the member has been given under regulation 46(2).
(2) At any time after the Chief Officer has caused an investigation to be conducted under regulation 46(1), an officer of the Authority nominated by the Chief Officer for the purpose may suspend the member from the member’s brigade until—
(a) the time for the laying of a charge under regulation 48(2) has expired; or
(b) if a charge is laid, the charge has been dismissed or found proven in accordance with regulation 49(3); or
(c) if an appeal has been made to the Appeal Panel, the chairperson of the Authority has given the appellant written notice of the Appeal Panel’s determination.
Clearly suspension is an interim measure to be applied pending the outcome of an investigation or disciplinary proceedings. Once disciplinary proceedings have concluded, where a member is found ‘guilty’ of a charge the chief officer may impose a number of penalties (r 45). One of those is to recommend to the Authority that ‘the enrolment of the member be cancelled’ (r 45(g)). A member has a right to appeal to an appeal panel (r 53). It is the Authority (the CFA, not the chief officer) who may ‘cancel …the enrolment of any officer or member of any brigade’ (Country Fire Authority Act 1958 (Vic) s 23(1)(d)).
There is no reference in the Act or Regulations to allow VCAT to review decisions under r 47 or s 23; that is in the Country Fire Authority Regulations there is no equivalent to r 25 of the Victoria State Emergency Service regulations. There is one reference in the Country Fire Authority regulations to an appeal to VCAT and that is an appeal against a requirement to form a forest industry brigade (r 67). The Act provides for an appeal to VCAT from a direction to form an Industry Brigade (Country Fire Authority Act 1958 (Vic) s 23AA) and from the imposition of a fee notice for a false alarm of fire (s 20B).
There is nothing in the CFA Act or regulations that gives VCAT the power to review a decision made to suspend a member or a decision by the Authority to cancel a volunteer’s enrolment under s 23. What follows is that VCAT cannot ‘hear matters pertaining to the suspension of volunteers under CFA regulation 47’ nor can VCAT review the Chief Officer’s recommendation, or the Authorities decision, to cancel a member’s enrolment.