DFES preamble
Section 37(1) of the Fire and Emergency Services Act 1998 (Fire and Emergency Services Act) states that a person does not incur civil liability for anything a person has done ‘in the performance or purported performance of a function under the emergency services Acts’ (referred to as the ‘Protection Clause’). The emergency services Acts are defined within s 3 of the Fire and Emergency Services Act to include: the Fire and Emergency Services Act; the Bush Fires Act 1954 (Bush Fires Act); and the Fire Brigades Act 1942 (Fire Brigades Act).
Section 5 of the Interpretation Act 1984 provides that any reference to function includes ‘powers, duties, responsibilities, authorities and jurisdictions’. As such any action undertaken in good faith pursuant to a function, power, duty or responsibility that is within the emergency services Acts should be captured by the Protection Clause.
The civil liability relief afforded by the Fire and Emergency Services Act also applies to the Crown, local government and any other party that may otherwise have been vicariously liable.
8.1 ACTIVITIES PROTECTED
The Protection Clause in its current form does not deal with any specific activities. Stakeholders have submitted that certain activities may be regarded as being of sufficient importance to require specific mention and therefore Protection from Liability.
Currently neither a private landowner and/or their contractor, nor government bodies vested with care and control of land, are likely to have protection under s 37 of the Fire and Emergency Services Act when conducting risk mitigation activities, as they are not regarded as performing a function under the emergency services Acts.
A person wanting to rely on the Protection Clause would have to show that they are vested with powers under the Acts in respect of the activity, and were using those powers when causing the loss.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
8.1.1 Retain existing coverage for anything a person has done in good faith ‘in the performance or purported performance of a function under the emergency services Acts’
AVBFB comments:
Any protection for duly accredited emergency services personnel acting in good faith under the Act is warmly supported.
It is vitally important that all such protections be worded in such a way as to ensure that the often unique circumstances of volunteer personnel does not preclude them from the same support as paid staff who may have greater opportunity for training and practice.
OTHER OPTIONS NOT SUPPORTED
8.1.2 The Protection Clause provides for specific activities to be covered (such as hazard mitigation or acting in terms of a risk management plan)
8.1.3 The Protection Clause provides coverage for things done for the purposes of executing the new emergency services Act or ‘any other act’
8.2 SPECIFIC MENTION OF CERTAIN GROUPS
Currently, in order to be afforded the Protection from Liability a person must be performing a function under the emergency services Acts. If a person has a function and power under any of the emergency services Acts, it is likely that they are captured by the Protection Clause if they were using those powers in good faith when the loss was caused.
In order to make it even clearer to whom section 37(1) applies, section 37(1a) provides a list of the persons covered. This list includes:
- members of a volunteer or private fire brigade under the Fire Brigades Act;
- volunteer fire fighters under the Bush Fires Act;
- persons undertaking an SES Unit’s functions under part 3A of the Fire and Emergency Services Act;
- persons undertaking a VMRS Group’s functions under part 3B of the Fire and Emergency Services Act; and
- persons undertaking a FES Unit’s functions under part 3C of the Fire and Emergency Services Act.
Section 37(1a) of the Fire and Emergency Services Act confirms that the list provided is not intended to limit the general statement within section 37(1). As such there are classes of people who undertake a function under the emergency services Acts that are not listed within section 37(1a).
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
8.2.1 Do not include specific groups (as specified in section 37(1a) of the Fire and Emergency Services Act) in the new emergency services Act
AVBFB comments:
Consistent with the general view that legislation should be precise but not unduly prescriptive, the Association supports this option subject to the detail of any proposed future legislation not reducing the amount of protection from liability available to those connected with volunteer bush fire brigades.
OTHER OPTIONS NOT SUPPORTED
8.2.2 Provide for further specific groups of emergency services personnel to be added to what is currently listed in section 37(1a) of the Fire and Emergency Services Act
8.2.3 Include specific groups (as specified in section 37(1a) of the Fire and Emergency Services Act) in the new emergency services Act
8.3 CIVIL AND CRIMINAL LIABILITY
Civil Liability is in respect of damages for injury or loss to a person. Criminal Liability refers to a prosecution, ordinarily by the State, for the alleged committal of an offence under a written law.
Section 37 of the Fire and Emergency Services Act only provides coverage from Civil Liability. In South Australia both the Fire and Emergency Services Act 2005 (SA) and the Emergency Management Act 2004 (SA) provide protection from criminal liability as well as civil liability
DFES PREFERRED OPTION
8.3.1 Protection is limited to Civil Liability
AVBFB PREFERRED OPTION
8.3.2 The emergency services legislation provides a protection from both Civil and Criminal Liability
AVBFB comments:
The Association contends that if an offence is committed by a duly authorised person in good faith, in the performance or purported performance of a function under the Act, that person should have protection from both civil and criminal liability.
This is a particularly important issue for the state’s 26,000 volunteer bush fire brigade members who often cite fear of liability as a significant disincentive to volunteering. While paid, “career” personnel have easy access to training and information via DFES and their Union, volunteer bush fire brigade members simply don’t. As people who typically also hold down full-time work, even those with access to professional development opportunities struggle to find the time to avail themselves of it.
That may lead to less familiarity with the “nuts and bolts” of the array of laws emergency service workers are exposed to whenever they attend an incident and thus an increased likelihood of committing an unintentional offence. Recognition of these unique and often personally challenging circumstances by way of protection from liability from damages caused in good faith in the performance of their duty would be both reasonable and deeply appreciated.
8.4 ESTABLISHING A BAR TO ACTION AGAINST EMERGENCY SERVICES PERSONNEL
Section 129(4) of the Fire and Rescue Service Act 1990 (Qld) provides that a court may order a stay of proceedings if satisfied that there is no reasonable ground for alleging either negligence or lack of good faith.
There is no similar provision in the emergency services legislation in Western Australia.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
8.4.1 A new section is included stating that a Court may order a stay of proceedings if satisfied that there is no reasonable ground for alleging that the Protection from Liability would not apply
AVBFB comments:
This option appears to serve the dual purpose of minimising the personal stress on any emergency service personnel unreasonably accused of an offence as well as minimising unnecessary time burdens on the wider justice system.
While the potential to “move on” after a traumatic incident would undoubtedly be welcomed by anyone in such a situation, the immense disruption that a long court case could cause to the life and family of a volunteer is likely to be far greater than a career officer who would not only be able to maintain an income, but also have the support and resources of their well-funded Union.