I’m looking for some assistance with a question which I have been asked many times and that is “why should I join?”
An issue we are facing in my area is that people are attending incidents, wearing RFS PPE, utilising RFS equipment and are not registered members of the Service. They see no reason to join as they have access to the equipment they require and are covered by Workers Compensation through us if/when they are injured.
The only thing I can find which assists me in convincing people to become a bona fide member is RURAL FIRES ACT 1997 – SECT 128 Protection from liability, although they would have protection under the Civil Liabilities Act being ‘good Samaritans’, wouldn’t they?
The second part to my question; if a Brigade considers a person a member of their Brigade, then are they considered a member of the NSWRFS under law?
i.e. if a Brigade Secretary has the name of a person listed on their internal membership list, then is that person actually required to complete a Membership Application form to be added to the register kept by Head Office?
We have had issues here in the past where people consider themselves a member of their Brigade… and therefore are entitled to PPE, to be on a truck and receive training, but they are not listed on the database to which I have access (SAPHR). I can understand where they are coming from but cannot argue for or against without some further information and advice. I see the section in the act which seems to support their argument. Does this leave the RFS open to some scrutiny?
RURAL FIRES ACT 1997 – SECT 20
Members of rural fire brigades
20 Members of rural fire brigades
(1) 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 Standards.
(2) The members of a rural fire brigade are the persons listed on the register for the brigade kept under this section.
What don’t understand is why are people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ if they ‘are not registered members of the Service’? But let us look at the law.
The RFS consists of the commissioner and staff and volunteer fire fighters (Rural Fires Act 1997 (NSW) s 8). Volunteer firefighters are:
(a) officers and other members of rural fire brigades, and
(b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade. (s 8(2)).
There’s the answer, clearly one can be a volunteer fire fighter and a member of the RFS without being a member of a brigade. As my correspondent has noted, members of a rural fire brigade are ‘the persons listed on the register for the brigade kept under this section’ (s 20(2)).
So why join? Section 39 says ‘Any function conferred or imposed on the Commissioner by this Act may be exercised by any officer or member of a rural fire brigade or group of rural fire brigades authorised for the purpose by the Commissioner’. Section 40 also allows the OIC to authorise members to exercise various functions. A volunteer firefighter who is not a member cannot be authorised to exercise these functions. They doesn’t mean they can’t fight fires or do things they are directed or asked to do, but it does mean they can’t make the decision to enter premises, close roads etc. In short it means a firefighter who is not a member is not going to be ‘in charge’ so they need to join if they want to be in a command position.
Section 128 does provide legal protection for a protected person which includes ‘any member of the service’ and ‘any person acting under the authority of the Commissioner’. If the Commissioner has delegated certain authority to a brigade officer and the non-member is engaged ‘in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of’ that officer then he or she is acting under the authority of the commissioner.
In any event if the person were negligent, any prudent plaintiff would sue the RFS either because the person was acting on behalf of the RFS or the RFS was negligent in allowing the person to be doing whatever it is they were doing when not a member.
I would suggest, however, that both ss 8 and 128 are intended to deal with casual volunteers, people who turn up at an event, perhaps they have useful skills or equipment which the make available to the RFS and which the relevant IC choses to use. They’re not intended to protect people who regularly attend RFS meetings and training nights but who refuse to join their local Brigade. A person who has not joined has not committed to the RFS service standards, including the code of Ethics, they would not be eligible for ‘Legal Assistance for Volunteers and members of the Staff of the Service’. A non-member would, presumably not have the necessary qualifications for fire fighting roles (though they may have if they have been a member or have relevant prior learning).
An officer of a brigade, and the RFS, has obligations under the Work Health and Safety Act 2011 (NSW) to protect all workers and that includes volunteers (s 7). A volunteer is ‘a person who is acting on a voluntary basis’ (s 4). A person ‘who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade’ is a volunteer and is owed duties under the Act. The way to manage their risk, if they are intending to regularly partake in RFS activities, is to make sure they are trained, equipped and supervised in accordance with the Act and Service Standards. That may not be the appropriate response to a casual volunteer who is at a fire event in which case the brigade may issue some PPE and give some direction to the person to contribute what they can usefully contribute but it’s quite different if the person wants to be a regular participant.
That comes back to my question, why are these people ‘attending incidents, wearing RFS PPE, utilising RFS equipment’? If they want to be trained to use the equipment, to be issued with PPE and attend incidents the officers of the brigade should insist that they join and receive the appropriate training, undergo the appropriate probity checks and commit to the service standards. If they are not willing to do that they should not be ‘attending incidents, wearing RFS PPE, utilising RFS equipment’ because the very risks that all those things – training, probity checks, commitment to service discipline – are meant to manage are not being managed. If it turns out they are using their involvement to access private property for nefarious means or they are injured then the consequences for the Service and for those managing the brigade could be severe.
Section 8 and section 128 may well envisage that casual volunteers can and do provide a useful contribution and their risk can be managed in the particular case it does not justify allowing someone to behave as if they are a member when they are not. So why should someone join? Because they should be told, in no uncertain terms, that they are not allowed to attend incidents, wear RFS PPE, or utilise RFS equipment if they do not.
As for membership a member is a member if there name is on the Brigade Register. The Register must be maintained in accordance with Service Standard 2.1.3 Brigade Registers. Paragraph 2.2 says “It is each rural fire brigade’s responsibility to provide updated membership details to the Rural Fire Service’s human resource data base, via the Fire Control Centre or the MyRFS website.” Membership is determined by entering one’s name on the brigade register, not the human resource database. If the person’s name appears in the register but not the ‘human resource data base’ it does not mean that they are not a member; rather it means the brigade is not performing its duties properly.
Australian Emergency Law 
Dear Michael can you oblige and advise if these provisions apply in qld, or any significant variation? Thanks and regards, David
The provisions I’ve quoted all come from NSW so they only apply in NSW. In Queensland a group forms a fire brigade and then applies to the Commissioner of QFES for registration as a brigade. It is presumably up to brigades to determine, subject to their rules. to determine who is to be a member of the brigade (Queensland Fire and Rescue Service Act 1990 (Qld) ss 79 and 80).
As we know from the Malone Review of the Queensland Rural Fire Service (2013) the legal standing of Queensland rural brigades is not at all clear nor is the status of the members of the brigades as the Queensland Fire Service is made up of the Commissioner and fire service officers (s 8) and a ‘fire service officer’ is ‘a person employed under section 25’ (s 6 and schedule 6). Volunteers are not employed so are not members of Queensland Fire and Rescue. For further discussion on the status of officers of Queensland Rural Fire Service, see ‘More on the Queensland Road Rules‘ (November 26, 2012); see also ‘A further review of the Malone Inquiry into the Queensland Rural Fire Brigades‘ (June 11, 2013).
Thankyou for your time and courtesy to answer.
G’day Michael
First thanks for your extraordinary blog and role model.
This comment primarily addresses the question “why are people attending incidents wearing RFS PPE, utilising RFS equipment if they are not members of the Service?”
While I have no experience of the NSW or RFS this sounds similar to what is seen with our bush fire brigades in rural areas in the Margaret River Region of the far southwest corner of WA.
In essence it has to do with the evolution of both fire services in rural areas and rural areas themselves, and I’ve included supporting references at the end of the email.
At the beginning of European settlement Government here owned millions of hectares of extremely flammable forests and early on, they offered opportunities to entrepreneurs to create a logging industry. This flourished for some time but eventually the entrepreneurs moved to a better opportunity elsewhere.
Next, Government offered opportunities to
returned servicemen and others to clear some forest to create a dairy industry.
This flourished for a time and the workplaces were far less pyrically-challenged – “small fuel, small fire” versus “big fuel, big fire” works here.
Even so, fire and windborne embers could be challenging, and did not stop at fence lines or fire breaks, so farmers learned to turn out quickly to help neighbours contain fires while they were small. This evolved into Bush Fire Brigades which, initially, had no PPE and only whatever equipment the farmers owned.
These were “stay and defend” people with lives, homes, and livelihoods at stake.
Much later, entrepreneurs found that vast wealth could be created in property development – by selling lifestyle/holiday/investment property in country areas.
Industrial strength advertising made “nestling in the bush” seem normal and desirable to urban people who didn’t really understand the varying levels of risk and whose urban paradigm was that fire services were professional and would save them and their homes should fire happen.
As population grew in country areas, so did disasters, and the urban paradigm blamed this on professional fire agencies.
The professional fire agency’s response was “professional”, ie more training, PPE, better equipment, and better incident management that included asset protection priorities in the event of multiple major incidents.
So, dairy farmers, who milk twice a day, were expected to leave their own families, homes, and livelihoods exposed, and travel to the suburbs to try to defend homes which were, in their experience, extremely and needlessly endangered.
Nowadays, on bad days, when smoke is seen in rural areas, farmers do still turn out with their fire-fighting slip-on units to help; we also see people who used to belong to brigades, and so have PPE, but chose not to maintain the increasingly time consuming and “needlessly dangerous” commitment of being members of brigades.
Whether more highly trained and equipped fire-fighters are available to help depends on what contention exists for them and their asset protection priorities: many vulnerable fly-in/fly-out families and retirees have been attracted to high and extreme risk suburb locations here.
More on WA bush fires – in both 1961 and in 2011 WA had major bush fire disasters: first in the more challenged prohibited burning fire season, and then subsequently in the less challenged restricted burning season – as prescribed burning was urgently used to “reduce risk” when moderate weather was forecast. But the weather changed…
In 1961 the main fires (including Dwellingup) were caused by a lightning storm that ran the length of the forest region and overwhelmed fire-fighting resources.
In 2011 the main fire (Perth Hills) was, too easily, accidentally caused by a resident.
Royal Commissions into major bush fire disasters have recommended wide-scale prescribed burning since 1939, and as recently as the 2009, the Black Saturday Royal Commission said although risky, it reduced the risk for flora, fauna, and people and their homes, and it recommended a minimum quota by which the Government be held accountable.
But, as the mosaic of development in high and extreme risk areas has become more complex, so has the complexity and risk of prescribed burning.
Prescribed burning is carried out, when moderate weather is forecast, to reduce the build-up of extremely flammable, oil-rich leave litter and brash. This reduces the likelihood of major disasters more challenging weather.
Humans and their fire suppression are relatively recent – a couple of millions of years – in evolutionary terms, flora and fauna evolved over hundreds of millions of years along with lightning-ignited fires. Prescribed burning resembles and provides the benefits of the milder forms of naturally occurring wild fire.
In short, we’ve known about bush fires and the need for prescribed burning for a long time so, with regards to homes in bush fire prone areas, a question arises:
urban planning and consumer protection – where the bloody hell are you?
(Contrast tobacco and also safety faults with cars.)
Paul Matthews
Karridale
WA
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Notes and References on Bush Fire Research
Royal Commissions or independent inquiries are normally used to try to learn the lessons of bush fire disasters but, after an exceptionally bad bush fire season in 2002-2003, federal government established a new initiative: the Bush Fire Co-operative Research Centre.
The Bush Fire CRC brought scientists from a number of disciplines together with existing state fire and forestry agencies in order to carry out rigorous academic studies.
Reporting back five years later their emphasis was on tackling root causes as opposed to symptoms. The top two issues identified were:
“1. Review policy and legislation to ascertain the presence of incentives to create disasters, transfer risk and undermine resilience.
2. Review and alter liability regimes to ensure liability resides with those who create the risk.”
Extracts of some details follow.
“There is a strong emphasis on accident prevention and safety in Australian policy and legislation. However, this emphasis does not always extend to larger scale events and to the potential disasters from settlement patterns. Disaster prevention efforts, and to some extent safety regulations, are often seen as little more than impediments to economic growth. ……the economic costs of disasters which are almost always borne by the individuals impacted and by governments, rather than those responsible for creating the risk who often find it easy to transfer risk to others…..
“Often, there appears to be strong incentives in legislation and policy to create vulnerable situations through, for example, policies that provide subsidies for the development of flood-prone land, that permit the development of high hazard – and often environmentally important – coastal and stream areas, that remove sources of information on hazards, or that unintentionally undermine the resilience of people and communities….
“most Australian jurisdictions do not use prescriptive planning regulations, and planning is increasingly about facilitating major developments rather than attempting to enhance local economic advantage or hazard avoidance….
“Australian emergency management has been very successful… But success can bring its own hazards. For emergency management, these include unrealistic expectations on the part of those at risk and perhaps governments..”
emphasis added
Extracts from the Emergency Management chapter of “10 Commitments” published by CSIRO in 2008.
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2. FESA, “The Canberra Fires” documentary, prepared for WA Fire Services personnel. In January 2003, 4 people died and 474 homes were destroyed in the suburbs of Canberra. This was not due to the flames or radiant heat from the main bushfire, it was caused by ember attack from a distance and then property to property involvement. These suburban homes were not in a high risk area and they did have scheme water, underground power and adequate roads. Issues included exceptional weather, garden design, house building materials/design, and overwelmed fire-fighting resources.
The FESA message was our urban interfaces are vulnerable and it could happen here.
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3. COAG Inquiry including findings from 12 previous bushfire inquests and inquiries from 1939 to 2003.
Is on the web.
Includes ‘consistent themes’:
– “Increased emphasis on risk reduction
– the value of volunteers
– education and awareness
– complacency
– the adequacy of resourcing
– protective burning
– communication
– the importance of access
– local knowledge
– local government
– the insurance industry”.
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4. FESA, PREPARE, ACT, SURVIVE, 2009
Advised people that bush fire risk is their own responsibility, they can’t rely on help from fire-fighters, and may lose their lives and/or homes unless they can successfully defend them themselves.
This advice is normally provided, if at all, to people after buying or renting a home. The Perth Hills bush fire inquiry February 2011 spotted this and recommended changes.
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5. Michelle Roberts, Emergency Services Minister, Hansard, 22nd November 2005:
“..FESA might want to talk to local governments about brigade A or brigade B and whether they should continue or whether it would be better off to provide a brigade in a growing area..”
Pre-existing rural resilience is being undermined…
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6. “Home Cover too costly for many”, Weekend Australian, 22-23/1/2011. extracts: Elaine Collins, an insurance partner with accounting firm Deloitte quoted “.. natural disasters were not occurring more frequently, but the cost of such events was rising because more people were moving into…such as flood prone sites near rivers and bushland vulnerable to fire”.
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7. Understanding Communities Project, Bushfire CRC, Update November 2007. “…Of particular concern is that many people who live in the urban interface think they have adequate plans to deal with bushfires, but when we delve into them they are clearly not enough…”
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8. FIRE NOTE, Bushfire CRC, Issue 9, November 2006
“..in many peri-urban places around Australia the growing mix of people and property with bushland creates the potential for disaster..” “..The results demonstrated that people have a heavy reliance on the Rural Fire Brigade to protect people and property during bush fire (93%). Those who may rely more heavily than others include those with an urban background, newcomers (<10 years), those more concerned about the bush fire hazard, and those with positive perceptions about the Fire Brigade and Fire Levy..”
Emphasis added.
Note the reliance mentioned is incompatible with Prepare Act Survive in 4) above, and this was picked up by Perth Hills Bush Fire Inquiry February, 2011.
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9 Pretty, J. The Living Land. 2007
“Paraphrase”: a broad, sustainable model for community service relies not just on altruism, but on reciprocity, eg “I will help my neighbour with a fire on his property because:
– it’s the right thing to do
– he has helped me in the past
– I may need his help in future
– then it will stop the fire before it impacts my property"
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10) "Planning for Bush Fire Protection guidelines; edition 2", West Australian Planning Commission; Department of Planning, Government of Western Australia; Fire and Emergency Services Authority of Western Australia, May 2010
"The personal and community devastation that can be c
"The primary focus of these guidelines is ensuring that bush fire hazards are considered in planning decisions at all stages of the planning process to avoid increased fire risk to life and property through inappropriately designed land use and development…"
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11) "A Shared Responsibility, The Report of the Perth Hills Bushfire February Review'", Government of Western Australia, 2011
"Needlessly endangered" – most WA Local Governments had not implemented National Building Codes for bushfires or complied with State Planning Guidelines – implication was they feared it would discourage development
pp 140-141, 31-36
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12) "News and Council notices
Commencement of Australian Standard for Building in Bushfire Prone Areas"
Augusta Margaret River Shire River Council, 29/8/2012
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13A) 'Golf Club proposal win; Chalets, units approved despite fire risk concerns for Wilderness', Augusta Margaret River Mail, 1/7/2009
(resident) "Mr Lyon spoke about fire risk, referring to this year's Victoria fires. The main hazard are the chalets…"
Cr Rosemary Taylor: "…I acknowledge they are in a high fire risk area, (but) I can't see this development is going to make it worse.."
"Cr Jenny McGregor said she didn't think anyone had caused a fire at the site."
"Cr Lyn Seventy said she remembered a burnoff which escaped from the golf club and threatened Wilderness Road. It is an area of extreme risk and has been categorised as such" (in council's Bushfire Response Plan).
"Cr Brian Middleton said any golf club that owned land has the right under planning law to develop it. Our officers tell us it complies (and) I certainly have faith in our planning officers"
Shire President Steve Harrison said the fire issue was critical. He agreed with CR Seventy it was unlikely development in Wilderness would get accepted today. However, he said, after the Victoria fires people were very much aware of fire risk, and the motion was carried 5-1."
Elementary risk management should take into account the increasing numbers being put at risk.
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13B) "Fundraiser a furphy in golf course deal", Augusta Margaret River Times, 3/7/2009
"…Augusta Coucillor Mike Smart gave the strongest acknowledgement to community concerns about fire, though he did vote for the proposal. When I drive down that road it makes me shudder to think what will happen when fire does go down there one of these days"…
"However the Fire and Emergency Services Authority ticked off on the project – a fact underlined to councillors by planning consultant and keen golfer Marc Halsall during his brief presentation."
emphasis added
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14) “Land Management Practices Associated with House Loss in Wildfires”, Philip Gibbons et al, PLOS.org, 2012
MORE ON PERI-URBAN:
“Losses to life and property from unplanned fires (wildfires) are forecast to increase because of population growth in peri-urban areas and climate change.
15) "Tempered by Fire", The Bush Fire Front, 2011
Describes the consequences of a lightning storm that, in 1961, ran the length of WA's forest region causing many fires and overwhelming the State's fire-fighting resources.
16) Karridale Bush Fire 1961, Karridale Progress Association Inc, 2011
In this free e-book local farming families recall how they and their homes survived a local 40,000 ha fire here in the days before PPE, $400,000 fires trucks, or $10,000 per hour fire-fighting sky cranes.
Could this section of the NSW SERM Act also apply?
STATE EMERGENCY AND RESCUE MANAGEMENT ACT 1989 – SECT 63B
63B Offences relating to emergency services organisations
…..
(2) A person who:
(a) uses or displays emergency services organisation insignia, or
(b) impersonates an emergency services organisation officer, with the intention to deceive is guilty of an offence.
Maximum penalty: 50 penalty units.
(3) A person is not guilty of an offence under this section if:
(a) the person’s conduct is authorised by the relevant emergency services organisation, or
(b) the person establishes that the conduct is for the purposes of a public entertainment, or
(c) the person establishes that the person has a reasonable excuse.
“emergency services organisation insignia” means:
(a) any items (being uniforms, insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to an emergency services organisation (other than the NSW Police Force) or as being used by an emergency services organisation officer, or
“emergency services organisation officer” includes an employee, member, volunteer or any other person who exercises functions on behalf of an emergency services organisation (other than the NSW Police Force).
Section 63B may be relevant but I don’t think it is in context. There’s nothing in the original question to suggest that the people who are turning up have ‘the intention to deceive’ and further I infer that they there ‘conduct is authorised by the relevant emergency services organisation’ that is they are being incorporated in the RFS response. One can imagine for example where a person turns up – what is called a ‘spontaneous volunteer’ – and the IC recognises that they have useful skills and accepts their offer to assist and arranges to give them some PPE. In those circumstances there is no offence under s 63B. Equally if a person has been turning up to meetings and has been issued PPE by the brigade, even if they have not formally joined, they commit no offence if they wear the PPE in circumstances that were intended when it was issued. That, of course, begs the question that I raised in my post, and which has not been answered – ‘why would a brigade do that?’ I don’t understand why that would happen, but if it did, the person is not committing an offence contrary to s63B because their action is ‘uthorised by the relevant emergency services organisation’.