In their latest newsletter, the Australian Local Government Association reports on a review into the South Australian Fire and Emergency Services Act (see ‘Volunteers thinning because of job security and liability concerns’)
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According to that brief summary: “The report found current volunteer ranks are thinning for several reasons, including the ageing population, increased paperwork and fears about liability”. My immediate reaction was to again ‘not again, how can volunteers be concerned about liability – and if they’re not reassured now, changing the law won’t help’. But going to the actual report reveals that the ALGA summary is not quite correct.
The report is the Review of the Fire and Emergency Services Act 2005 Pursuant to Section 149 of the Fire and Emergency Services Act by the Hon. Paul Holloway.
The discussion on liability issues is at pp 35-38 and p 41. At page 35-38 Mr Holloway discusses the liability of councils and others. With all due modesty, I note that the review draws extensively on the work of my colleague, Professor Stephen Dovers, and I. In our work we’ve argued that it is not liability that is the issue, but the process of review. In our paper, ‘Australian wildfire litigation’, published in (2012) 21 International Journal of Wildland Fire pp 488-497, we reviewed post fire litigation and concluded that litigation against the fire services was rare, and unheard of against volunteers. We concluded
If litigation is not very common, what can explain the perception that people are inhibited by fear of legal liability? It is suggested that the problem lies in the use of the term ‘liability’; what volunteers and others are, or should be, concerned about is not liability but the time, cost and inconvenience of responding to more and more complex post-event inquiries coupled with the fear of personal attribution of blame. This may not be ‘liability’ as a lawyer would understand it, but would be understood as such by lay members of the firefighting community
This finding was given explicit recognition when, at p 36 the review said:
Even though there is significant legal protection for firefighters and, in particular, volunteers, and even though litigation against fire services is rare and none exists against individual firefighters, many volunteers remain concerned. CFS Volunteers are concerned about the risk to their reputations, livelihoods and assets when called to appear to give evidence at various courts of inquiries and other legal proceedings. Such appearances are quite stressful to volunteers who are often asked to give reason for their decisions at the incident in question.
and at p 41 where it was noted that the relevant fear was at least in part, a fear of cross examination.
One of our suggestions has been that we need to develop a new model to review emergency events, a model that does not sacrifice the goodwill of volunteers by subjecting them to cross examination. The report, at recommendation 19 said:
When judging major incidents in the future, consideration be given to Eburn and Dover’s proposal to establish processes with a statutory basis that sufficiently balance the community’s interests in ensuring that true lessons, including lessons of error or neglect, are identified, whilst also protecting members of the emergency services. Processes need to be developed for emergency services such as those used in aviation and medicine, to facilitate open and honest disclosure of errors.
I am leading a research team that is currently seeking funding from the new Bushfire and Natural Hazards CRC to further explore alternative means for reviewing emergency events. Hopefully that work will assist the community to learn lessons from the response to catastrophic incidents without looking for someone to blame.
Michael Eburn
Australian Emergency Law 
Michael….
One aspect that you might care to consider, is how the respective services have represented changes in the legislative, regulatory and legal environment to their volunteers.
Speaking from a NSW perspective, those of us who were members of Bush Fire Brigades through the 80s and early 90s joined a local brigade – not a “service” – that was very much focused on mutual self-defence against fire, but not on standards, regulations and uniforms. Following the Rural Fires Act 1997, we found ourselves drafted – with minimal effective consultation – into a very different style of organisation. In order to pressure volunteers into complying with the new standards, some people within the RFS placed what I consider to have been undue emphasis on the “implications” of not being dressed right, not carrying out the “right” procedures and not having the “right” qualifications.
One specific item used to enforce compliance was the threat of OH&S legislation. Under it, volunteers were “deemed” to be employees (unpaid). Those who take pride in the fact that they are volunteers protecting their community, fairly took umbrage at not being given due credit and treated as though they were working *for* the Service, not *with* it.
Many of the more rural volunteers may have difficulty in articulating this feeling, but it is inherent in any protest of “But we are volunteers!”. The variation in volunteer motivation and culture is often greater than might be immediately perceived by someone familiar with only a part of such services
Living close to the Victorian border, I have also noted some similar changes in the CFA. Apparently in response to the death of firefighters at the Linton fire – and in an attempt to pre-emptively “respond” to potential coronial recommendations – the CFA adopted its own set of “higher” standards. Anecdotal and media reports are that during the 2003 and 2006 fires in NE Vic, farmers and landholders – who in previous decades provided a major part of the recruiting base for the CFA – were self-organising for mutual defence against fire completely independently of the formal services. The degree to which this is due to any issues that you are reviewing is highly speculative, but I felt it worth running up the flagpole….
I wish you all the best in your endeavours……. Peter
An excellent research topic. As a volunteer firey that went through Black Saturday, and having done some further reading, the coronial and royal commission reviews of fire events are non-productive, even damaging, in so many ways.
Firstly, witnesses are questioned by people with no experience of the role or the environment in which decisions are made. No allowance is made for decision making in a fast moving, highly stressful environment; the questions are asked in an air conditioned court room where no-one is in danger of physical harm, and every snap-decision can be forensically analysed over days and days.
Then the outcomes are generally meaningless (not all, but most), and are usually wound back over the next few years as governments aren’t held accountable for sustaining any changes (look at the current budget cuts to the CFA and the winding back of community education funding, where CFA is pushing this task to volunteer brigades and releasing the paid staff contract staff).
All the above at great personal cost to individuals that are likely suffering untreated PTSD, where they are forced to re-live in minute detail the traumatic events they went through. These are individuals that often have little or no experience of court-rooms, the adversarial system, or of being asked to recount and justify every decision and action.
Then “the system” wonders why volunteers change their behaviour and decision making to try to avoid the above, rather than their primary goal of protecting life and property.
I look forward with interest to your research outcomes.
Thanks for the comment, Greg, and it really is the issue. If however report (after report) says the issue is ‘liability’ the solution is to have some clause, again, that says there’s no personal liability for acts done in good faith etc but every service already has that or something like it. Further if someone wanted to sue over the alleged negligence by a member of a state operated emergency service then the defendant is the state, or the service, not the member. And that is because of the operation of law, not because they simply chose to take responsibility for their members – they are responsible.
So it always annoys me, and I’m sure you’ve heard it, when the training goes something like “If you follow all our procedures and do everything by the book, the service will stand by you but any deviation and you’re on your own”. That is simply not true, liability only arises if things go wrong and there was some failure of some sort, such as a deviation from the procedures, so that sort of line means – we’ll stand by you if we don’t have to, but not if we do; and that is neither the policy of the emergency services nor the law. So again, as the reports so often do, when they say there is a fear of liability (and that be what’s been reported) then the apparent solution, another no liability clause, is not the solution to the problem.
The problem is not liability but, as you say, the process and the associated personal costs. Vivien Thomson in her book “Ashes of the firefighters”, has explored the impact some of these inquiries have on fire fighters. Hopefully we’ll be able to suggest a better process.
I’m 3/4 of the way through Vivien’s book. It provides a window into the stresses faced by volunteer firefighters, especially in large fires when no matter what you do, it will never be enough.
From a VICSES vol perspective, I’d agree with the paperwork issue without a doubt, as a major cause of concern.
It’s getting out of hand and the sheer amount of push back from Region and State is huge, along with dwindling support from the staff.
In terms of lessons learnt, I’m not convinced we do or have.