Here’s an interesting legal opinion from Barrister Michael Eburn PhD about Breathing Apparatus (BA) for Bush Fire Brigades. If you haven’t seen Dr Eburn’s Australian Emergency Law website, please check it out and subscribe – he is clearly a very dedicated legal volunteer, contributing an enormous amount of knowledge across every service in every state. Thank you Michael for all you do to support Australia’s incredible ES personnel.
Today’s correspondent raises:
One issue that has always been debated without any apparent legitimate legal opinion in WA is whether Volunteer Bush Fire Brigades (Local Government not the State Government managed VFRS and VFES) are able to use Breathing Apparatus (BA).
The first specific question is if there is any legal direction either allowing or disallowing Bush Fire Brigades to have and use BA.
The second is, given the State Government Department of Fire and Emergency Services (DFES) has total control of the administration of the annually collected Emergency Services Levy (ESL) and refuses to pay for BA for volunteer bush fire brigades to have BA, is there any legal impediment to a brigade (or its Local Government) buying its own BA and using it lawfully?
So as far as I can see there is nothing in the general law of WA that would pose a ‘legal impediment to a brigade (or its Local Government) buying its own BA and using it lawfully’ provided they can use it safely.
The Bush Fires Act 1954 (WA) s 41 says:
For the purpose of carrying out normal brigade activities a local government may, in accordance with its local laws made for the purpose, establish and maintain one or more bush fire brigades and may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus.
Not surprisingly the Act does not specify what ‘appliances, equipment and apparatus’ the brigade must, or must not be supplied with.
There is no specific law that says who can and who cannot have and use BA. I could buy BA for myself if I wanted it. Like all items of kit, the overriding obligation upon an employer (DFES or the relevant local government) is to ensure that employees and others are not exposed to undue risk to health and safety (Occupational Safety and Health Act 1984 (WA)). So if a local government wanted to issue BA to its brigades (established under the Bush Fires Act 1954 (WA)) they would have to make sure firefighters were trained and the use of the BA could be supported (equipment maintained etc).
That does not however get to the specifics of whether the DFES or the FES Commissioner has issued a ‘direction either allowing or disallowing Bush Fire Brigades to have and use BA’. The FES Commissioner is ‘responsible for the administration’ of the Bush Fires Act (1954 (WA)) s 10). Even so I cannot see any specific power in either the Bush Fires Act nor the Fire and Emergency Services Act 1998 (WA) that would allow DFES or the Commissioner to direct what equipment can or cannot be purchased, but there must be some standards in firefighting.
One would not want a local government to buy for its brigade an appliance that could not be used with other appliances and equipment held by all the other brigades. It is not clear to me (given WA’s legislation is a mismatch with old legislation – the Bush Fires Act 1954 (WA)) and the Fire Brigades Act 1942 (WA) – still in force but amended to impose the Fire and Emergency Services Act 1998 (WA) over the top) how those standards may be set or whether DFES or the Commissioner can or do direct councils on the ‘appliances, equipment and apparatus’ that they can buy, but I infer that this must be done.
I’d welcome advice from anyone in WA on if and how equipment standards for WA bush fire brigades are set.