DFES preamble
During the consultation process stakeholders have raised a number of issues in relation to the administration and other specific miscellaneous provisions of the emergency services Acts. These issues, and the options considered to address them, are discussed in this chapter.
2.1 FIRE DISTRICTS
Emergency services in Western Australia are currently subject to two types of legislated boundaries:
1) Emergency Services Levy (ESL) category areas and
2) Fire Districts.
The concept of Fire Districts is included within the Fire Brigades Act 1942 (Fire Brigades Act). Under current legislation the Minister for Emergency Services may establish, alter, rename or abolish Fire Districts through the publication of notices in the Government Gazette [1]. The FES Commissioner and fire brigades established under the Fire Brigades Act are empowered to respond within those districts [2].
Recommendations 68 – 71 of the Community Development and Justice Standing Committee (CDJSC) Inquiry into Fire and Emergency Services Legislation 2006 (CDJSC inquiry) were that Fire Districts and ESL category areas should be abolished and replaced by Emergency Service Areas[3]. ESL category areas are discussed in Chapter 1 Emergency Services Levy (ESL).
DFES PREFERRED OPTION
2.1.1 Abolish Fire Districts
AVBFB PREFERRED OPTION
None of the options presented can be supported at this time
AVBFB comments:
The Association notes that the DFES preferred option does not conform to the recommendations of the Parliamentary Inquiry into FES legislation and as a result, believes a much more detailed analysis of this specific topic is required before a sound judgement can be made.
The AVBFB reserves comment until such time that the rationale for disregarding the recommendations of the CDJSC are made clear.
OTHER OPTIONS NOT SUPPORTED
2.1.2 Replace Fire Districts with Emergency Service Areas
2.1.3 Retain Fire Districts in their current form
2.2 LOCAL GOVERNMENTS’ POWER TO DELEGATE
The 2002 amendment of the Bush Fires Act 1954 (Bush Fires Act), made at the request of local government, provided a legislative basis for a formal delegation process [1]. Section 48 of the Bush Fires Act provides that a ‘local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act’. Section 48(4) confirms that the limitation on sub delegation is not a limitation on the ability of local government to act through staff in the normal course of business. Section 59 of the Bush Fires Act permits a local government to delegate authority to its Bush Fire Control Officer (BFCO) or other officer in respect of offences and prosecutions.
DFES PREFERRED OPTION
2.2.1 Allow local government to sub delegate powers as required
AVBFB PREFERRED OPTION
2.2.2 Maintain the limit on sub delegation by local government
AVBFB comments:
As a result of the Association’s understanding of volunteer culture, it holds dear the general principle that where possible, management and decision-making processes should provide for maximum local input and control. However, any decision-making process that seeks to utilise the skills and expertise of volunteers must ensure that the individuals involved are not exposed to any unreasonable level of liability.
The AVBFB is therefore of the view that the current limits of sub-delegation strike a reasonable balance between allowing for a local decision-making process and minimising the liability burden of those volunteers who may be consulted as part of that process.
2.3 BUSH FIRE ADVISORY COMMITTEES IN LEGISLATION
Bush Fire Advisory Committees (BFACs) are voluntarily formed by local government in accordance with s 67 of the Bush Fires Act. The provisions of s 67 and 68 deal solely with the formation of BFACs by local government, its make-up and function and its relationship with the local government. The Emergency Management Act 2005 deals with the various risk planning obligations that are placed on local government.
DFES PREFERRED OPTION
2.3.1 Bush Fire Advisory Committees are removed from legislation and local government form hazard advisory committees to suit local needs
AVBFB PREFERRED OPTION
2.3.2 Maintain reference to Bushfire Advisory Committees in legislation
AVBFB comments:
As noted in the preamble above, “Bush fire Advisory Committees (BFACs) are voluntarily formed by local government” in legislation. Given that the status quo does not compel any local government to create a BFAC, the Association is of the strong view that future legislation should preserve the reference for those that wish to do so.
This is consistent with the AVBFB general principle that any perception of a reduction in the level of direct involvement and/or consultation of the volunteers who provide local emergency services is likely to have a counter-productive outcome.
2.4 STRUCTURE OF POWERS
The emergency services Acts are structured in such a way that individual emergency service bodies are each provided with a separate and distinct legislative identity. Each body is then given its own powers. This results in an overlap between the powers provided to the respective bodies. In addition, each of the current Acts uses slightly different language resulting in subtle differences in the powers that each body has.
DFES PREFERRED OPTION
2.4.1 Emergency service powers are structured into general classes of powers (e.g. prevention; response; inspection; investigation and recovery)
AVBFB PREFERRED OPTION
2.4.2 Continue to provide each individual emergency services body with its own powers
AVBFB comments:
The Association generally supports any move to reduce regulatory duplication, especially when inconsistency or a lack of clarity exists. However, it is essential that any attempt to do so is not undertaken with a “one-size-fits-all” instrument that may result in an even more problematic situation.
While it may be argued that the DFES-managed career fire and rescue service has significant commonality with other services, the Volunteer Bush Fire Service is fundamentally different in both administration and operation. It is acknowledged that some may hold the view that the status quo may not be easily moulded into a neat hierarchical diagram, but the AVBFB strongly encourages the government to maintain as much flexibility and diversity as possible, should it decide to draft new legislation based on this concept paper.
The DFES preferred option appears to seek to completely undo the entire existing structure which, in the opinion of the AVBFB, would cause enormous upheaval and discontent within all services without delivering a significant gain to the wider community.
Indeed, if the objective of this proposal is to reduce “overlap” in the powers of each body as stated in the preamble, restructuring bodies into “general classes of powers” would not resolve that core issue. An example of this might be a unit that undertakes preventative works as part of its response to an incident.
It is therefore the view of the AVBFB that any proposal to use the amalgamation of legislation to restructure Western Australia’s emergency services must more clearly demonstrate a net benefit to the whole community as well as ensure that the unique aspects that enable tens of thousands of volunteers to provide the state’s largest and most diverse emergency service are both recognised and enshrined.
2.5 ABILITY TO TAKE WATER
Section 61 of the Fire Brigades Act allows the FES Commissioner and officers and members of brigades to use water and water infrastructure, free of charge, for extinguishing a fire or ending a hazardous material incident, or for the purposes of drills, competitions, and practice.
Section 39(1)(e) of the Bush Fires Act states that a BFCO may, in the exercise of his/her functions, take and use water, other than that for use at a school, or the domestic supply of an occupier contained in a tank at his/her house, whether private property or not. It is believed that the origin of this provision related to essential water supplies in isolated areas at a time when replenishment was not feasible.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
2.5.1 Water may be taken as required to perform a function under the Act, but will be replenished as soon as practicable, in certain cases
AVBFB comments:
As the protection of life and property is always the primary goal of VBFB Members when responding to any incident, the Association strongly endorses any legislative support for those making the decisions on the ground in an emergency situation. Indeed, in regard to this specific issue, the AVBFB would likely support legislation that reversed the burden of proof. i.e. Any emergency service personnel responding to an emergency is authorised to take water from any source unless explicitly unauthorised and provided with personal indemnity for all actions made in good faith.
In the case of competitions and practice (or in any foreseeable, non-emergency circumstance) the AVBFB would accept a legislative requirement to provide reasonable notice to the owner of the water if necessary.
OTHER OPTIONS NOT SUPPORTED
2.5.2 Continue to protect specified water sources
2.6 APPROVED INDUSTRY UNITS
Private fire brigades are currently established under the Fire Brigades Act. In accordance with s 31 these brigades are under the ‘immediate order and control of the FES Commissioner’ [1] and are obliged to conform to regulations which can include registration requirements and subject them to inspections by an authorised DFES employee.
Members of private brigades also derive powers from the Fire Brigades Act to perform functions such as extinguishing fires.
Currently, industry brigades are formed by private industries, such as mining or forestry, for the purposes of providing services in respect of their organisation’s premises and land. This service may include firefighting, road crash rescue or another type of rescue. Industry brigades may or may not be registered as private brigades according to s 26(a) of the Fire Brigades Act.
The CDJSC inquiry recommended the formation of ‘emergency service units’ by agreement between DFES and industry, which the FES Commissioner may approve and dissolve [2]. Consistent with the all hazards approach, this paper refers to these industry formed units as Industry Response Units (IRUs). The use of the phrase ‘Industry Response Units’ differentiates this type of unit from FES Units and private brigades.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
2.6.1 Provide for approval of Industry Response Units (IRUs) to act as directed
AVBFB comments:
The AVBFB supports this option, with the following caveats:
- Private Brigades must have the option to not register and voluntarily de-register for IRU status without penalty
- Registration and compliance must not impose unreasonable time or financial burdens on registered IRUs.
- Some consideration must be given to financial compensation for activities undertaken at the order and control of a FES Commissioner
- Indemnity is provided for registered IRU’s that are unable to respond to an order of a FES Commissioner on legitimate grounds.
- Opportunity for owners of private equipment to make their resources/personnel available and utilised if deemed reasonable to do so by DFES (or the relevant Incident Controller) in an emergency situation.
- Thorough consultation with private brigades be undertaken to ensure broad understanding and support for the specific powers proposed to be afforded to a FES Commissioner with regard to a “direction to act”
- Any proposed future legislation must include options for agencies and departments to utilise private brigade resources (with their consent) for all classes of activities (prevention, preparedness, response and recovery)
OTHER OPTIONS NOT SUPPORTED
2.6.2 Keep current provisions that only allow for industry brigades to be registered as private fire brigades
2.7 INVESTIGATION POWERS
The current provisions utilised for the purposes of fire, hazardous material and rescue investigations are set out piece-meal across various parts of the current legislation. Examples of these are:
- section 34(i) of the Fire Brigades Act which provides the powers to search premises and remove and keep possession of materials which may tend to prove cause or origin of fire or hazardous material incident;
- sections 14(1)(a), (b) and (e) of the Bush Fires Act which provide the authority to enter land or premises to investigate a fire; and
- section 14(2) of the Bush Fires Act which provides for the confiscation of evidence, but only by Bush Fire Liaison Officers or police.
Each of these powers has their own limitations and issues.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
2.7.1 Establish investigation as a function of a FES Commissioner and provide specifically for investigation powers
AVBFB comments:
The Association offers qualified support to the concept of conferring investigative powers upon a FES Commissioner in proposed future legislation, but only if necessary.
It is the strong view of the AVBFB that any proposed future legislation should not duplicate or seek to transfer any existing powers conferred upon another agency (eg. Police) and only enshrine those powers of investigation that are set out in current ES legislation and not duplicated elsewhere.
OTHER OPTIONS NOT SUPPORTED
2.7.2 Maintain investigation powers as set out in current legislation