I was hoping you would be able to provide your perspective on a rather complex issue that my brigade is now facing. It is a curly one so requires a bit of back story.
I am the secretary of an RFS brigade in Northern NSW. Several years ago the brigade adopted “The new brigade constitution “as was being pushed by the RFS at the time. This new constitution was a fairly standard one for use around the state but still allowed brigades to make alterations to suit the needs of their specific brigades. A document called “Self Help Guide to Developing Your Brigade Constitutions” was also distributed to outline options available for brigades to customise their constitution with a number of “mandatory” and “optional” clauses but this document also noted that “Brigades must be given the opportunity to tailor their constitution individually if they choose.”
For the most part the brigade decided on options exactly as per suggested in the self help guide, however we also added a few additional clauses to meet our specific needs. One in particular is now causing trouble. For the election of field and administrative officers the self help guide gave the brigade a choice of either a first past the post, optional preferential or full preferential option. For all admin officers and for field officer elections with more then one nominee the brigade decided on first past the post, however we also added in an additional clause that for field officer positions with only one nominee they must get support from 50% + 1 of the votes cast, in order to ensure that the particular officer has the support of the majority of the brigade. This change was signed off at the time by the district manager (as required by the constitution and service standards) and our constitution was formalised and has been running relatively smoothly since then until our AGM last Sunday.
At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid and that there is a push from state headquarters to get rid of such provisions. We told them that our constitution has previously been signed off by both the brigade and the district as required and we had no intention of changing that particular provision. They advised that our constitution was not valid and if we did not submit a constitution that met their demands within 3 months that our constitution would be suspended and that if we still refused to comply after this a new constitution would be forced upon us by the district. This is an issue the brigade feels strongly about and it has caused considerable anger within the brigade as we were of the understanding that changes can’t be made to constitutions without the support of the brigade. As you can imagine it has also raised a number of questions that the brigade can find no clear answer on and we were hoping you could provide some insight. In particular:
- Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?
- Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?
- What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?
- Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?
- Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?
- If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?
- In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?
We would greatly appreciate your thoughts on these and any other issues you think are relevant.
That is, indeed, a curly question. The issue of constitutions for NSW RFS brigades is dealt with in the Rural Fires Regulation 2013 (NSW) reg 4. That regulation says ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for’ amongst other things, ‘the voting rights of members of the brigade’. Who or what is the responsible authority varies, if the brigade was formed by a local authority (under the Rural Fires Act 1997 (NSW) s 15) then the local authority is the responsible authority. If the brigade was formed by two or more local authorities (Rural Fires Act 1997 (NSW) s 15(2)) then the responsible authority is the authority nominated in writing by the local authorities that formed the brigade. If the brigade is formed by the Commissioner (Rural Fires Act 1997 (NSW) s 15(4)) then the responsible authority is the Commissioner (Rural Fires Regulation 2013 (NSW) reg 3, definition of ‘responsible authority’).
The regulation goes on to say ‘The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’ (Reg 4(2)).
Service standards are issued by the Commissioner (Rural Fires Act 1997 (NSW) s 13). Service standards can deal with a number of things including ‘brigade management’ (s 13(2)(i)). Section 13 does not say that Service Standards are binding on brigades but other sections do; for example:
- ‘The body or person that forms a rural fire brigade is … to appoint as the officers for the brigade those persons selected, in accordance with the Service Standards’ (s 18);
- ‘The officers of the rural fire brigades forming a group of rural fire brigades are those persons selected, in accordance with the Service Standards…’ (s 19(2));
- ‘The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standard …’ (s 20(1)); and
- ‘A council must take care of and maintain in the condition required by the Service Standards any fire fighting equipment vested in it…’ ( s 119(5)).
Note the difference with regulation 4(2). The regulation does not say that brigades must review their constitutions and amend them to bring them in line with the service standard, it says they are ‘to take into consideration any relevant Service Standards’ (Reg 4(2)). One can take something into consideration but still decide to do something differently. A brigade formed by the Commissioner must have a constitution that is in the approved form so if the constitution did not match the service standard would have to change it to comply. A brigade formed by a local authority need only consider the service standard but may chose not to apply it and could not if it was contrary to the form of constitution approved by the local authority.
NSW Rural Fire Service, Service Standard 2.1.2 ‘Brigade Constitution’ (http://www.rfs.nsw.gov.au/file_system/attachments/State08/Attachment_20131114_481D92EB.pdf) was issued on 8 August 2013. That standard sets out the ‘The Brigade Constitution for NSW Rural Fire Brigades’ and says that Brigades
… must review their constitutions with a view to preparing and adopting a constitution that is consistent with this Service Standard and the Self-Help Help Guide to Developing Your New Brigade Constitution.
2.2 In preparing their constitution, brigades must complete the New Brigade Constitution by:
(a) selecting or drafting those clauses of the New Brigade Constitution that must be completed. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution; and
(b) adding any of the optional clauses to the New Brigade Constitution. These are set out in section 2 of the Self-Help Guide to Developing Your New Brigade Constitution.
Remember however that a brigade constitution must ‘be in a form approved by the responsible authority’ and the responsible authority is the commissioner only with respect to brigades formed by the Commissioner, not those formed by local authorities (councils).
Let us now return to the questions. Remember we are told that ‘At the AGM the district staff present advised us that our 50% + 1 provision for single field officer nominees (as well as any other changes we have made that are not found in either the model constitution or the self help guide) is no longer valid’.
1. Does our existing previously signed off constitution remain valid? If not does this impact on the validity of previously passed motions, officer elections etc?
Yes the constitution remains in force. Even if there has been a change in the service standard from when the constitution was originally written that does not invalidate the constitution as it is. Regulation 4(2) says “The members of a rural fire brigade are to review the constitution for the brigade annually to determine whether it should be amended. In determining whether the constitution should be amended, the members are to take into consideration any relevant Service Standards’. It does not say a change to the Standards invalidates the constitution. Even if by some reason the constitution was no longer effective that would not affect decisions made when it was in effect.
2. Does the district manager (or the commissioner) have the power to suspend a brigades constitution? Would such a suspension need to be in writing or is verbal notification sufficient?
No, there are no provisions for the ‘suspension’ of the Constitution
3. What are the practical impacts of the constitution being suspended? Would it restrict the ability for the brigade to meet, train, spend money, pass motions etc (the workings of many of these things are outlined in our constitution)? If so how?
There are no provisions for the ‘suspension’ of the Constitution.
4. Would there be any legal implications for the brigade if it just kept going about business as usual with a suspended constitution?
That’s an interesting question as it’s not at all clear what value the constitution is. The brigades are created by the relevant authority, not the members so the constitution is unlike the constitution of an entity incorporated under the Associations Incorporation Act 2009 (NSW). Regulation 4(2) says that ‘The constitution for a rural fire brigade is to be in a form approved..’ but it doesn’t actually say that a brigade must have a constitution!
5. Does the district manager or commissioner have the power to force a new constitution on the brigade and is such a constitution binding if the brigade refuses to sign off on it?
Yes, if the brigade was formed by the Commissioner under s 15(2) then it’s constitution must be in a form approved by the Commissioner so the Commissioner could change the standard constitution (set out in the Service Standard) and require brigades to comply with that but that’s only applicable to brigades formed by the Commissioner.
6. If the brigade submits a change to another clause in the constitution other then the ones in dispute and the district rejects that change does this just reject the specific proposed change (ie it reverts back to the last signed off constitution) or can the district use this as a trigger to reject/nullify our whole constitution?
There is nothing in the regulation, the Service Standard or the Self Help Guide that says that any region approval is required. Even if a change did require approval, failure to grant that approval would simply mean the change did not occur, so the constitution would be as it was before the attempted change.
7. In a legal sense in the RFS is each brigade actually its own autonomous entity or are brigades more like offices/departments within the RFS as a government department? Ie do brigade actually have their own decision making powers?
Brigades are created by a local authority or by the Commissioner, and may be disbanded by the authority that created them (ss 15 and 16). They are not legal entities in their own right. The RFS is made up of the Commissioner and staff and volunteer rural fire fighters, not the brigades. Legal action would not be brought against a brigade or the RFS but against the Crown in right of NSW (Crown Proceedings Act 1988 (NSW); Government Sector Employment Act 2013 (NSW)). As noted above, it’s not at all clear why brigades need constitutions, rather than rules or standing orders, nor what happens if they don’t have one.
That the long answer
The short answer is that, assuming the brigade was formed by the Commissioner then the Constitution has to be in the form set out in Service Standard 2.1.2. That standard allows room for individual choice and the Self Help guide says ‘Brigades must be given the opportunity to tailor their constitution individually if they choose’. If the constitution complies with the Service Standard then any objection to clauses that the brigade has adopted where they were free to make those choices is irrelevant. If the Commissioner wanted to change that he would need to reissue the service standard and brigades, on their annual review would have to ‘consider’ whether to change it but given they have to comply with the prescribed form they would have to change their constitution. A brigade not formed by the Commissioner could ‘consider’ the constitution prescribed by the Commissioner and then decide whether or not to make the change.
Australian Emergency Law 
An additional thought to consider is the practical application of “The constitution for a Rural Fire Brigade is to be in a form approved by the responsible authority…”.
District management may either :
a) have delegation from the local authority to, or
b) would get the local authority/council to
specify the ‘form approved’ to be the service standard or a varient of it which was acceptable to the district management/RFS.
How does one determine the difference between a brigade formed by the Commissioner and a brigade formed by local authority? I didn’t know that there was a difference between Brigades?
What about bylaws Michael? I know a brigade which has approximately 30 bylaws to the Constitution which they put in place at their AGM, would these be valid? They include things such as procedures for response and access to the station by brigade members. After review, a few of these were removed by the Fire Control Officer for being in contradiction to Service Standards, but most remain.
I’m not sure how you would tell the difference between a brigade formed by the Commissioner and one by a local authority. I suspect there are few, if any, that remain under the control of the local authority but the Act does provide for them.
As for by-laws the model Constitution provides for the making of ‘rules’. Clause 12.1 says ‘The Brigade may make brigade rules provided that they are consistent with: (a) this Constitution; (b) the Service Standards; and (c) any district standard operating procedure’. Unlike the constitution itself, a district manager may disallow a brigade rule (clause 12.5) but there’s nothing to say a FCO can disallow the rules. There’s no provision to explain what the effect of the rules are. Effectively the rules are the SOPs of the Brigade but what effect they are to have would have to be explained in the rules, ie are they grounds for disciplinary action? do you have to put money in the swear tin?
I think people forget the binding nature of Constitutions.
In VESA, we’re going through a review at the moment and it’s taken a fair amount of time, but to make changes, it has to go through a proper and formal process.
We can’t just wake up one day and make a change and set it in place. It has to be approved through a formal system.
Is it just me or does the last paragraph stop mid sentence?
yes it does! Standby 5 and I’ll fix it.
Would it be a fair assumption that brigades older then the Rural fires act 1997 (the vast majority of brigades) would not be “formed by the commissioner” and as such would only have to “consider the constitution prescribed by the commissioner and then decide whether or not to make the change” ?
It’s probably not so easy. Even the 1949 Act provided that brigades could be formed by a council or by the Minister (Bush Fires Act 1949 (NSW) s 10). When the new Act was passed it said ‘A bush fire brigade formed or organised for a bush fire district under the Bush Fires Act 1949 immediately before the commencement of section 15 is taken to be the rural fire brigade for the district as constituted as a rural fire district under this Act’. So they are still brigades but it doesn’t refer to how, or by whom, they are formed. Without access to a lot more information including past regulations and even transfers between councils and the RFS, I am unable to say how you would determine what is the current status of a brigade.