‘How autonomous are NSW Rural Fire Brigades?’

I received this very long reply from the original correspondent which, in fairness to them, I reproduce below along with my responses. The executive summary is that I stand by my original conclusions.

Thank you very much for your thoughts in answer to my query. Your analysis of the legal status of rural fire brigades and its volunteer members under the NSW Rural Fires Act has unfortunately confounded me more. It is your initial conclusion that “The RFS is not some separate agency that coordinates or manages disparate brigades, there is but one service and each brigade is part of it”. You also say that “Today the Rural Fire Service is a public service agency within the NSW Government’s Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1)”.

As is sometimes the case however the ‘devil’ is to be found in the detail. For me the starting point would now be the NSW Constitution Act, s.47A. It provides in s.47A (1) that – “Persons employed by the Government of New South Wales in the Service of the Crown are to be employed in the Public Service of New South Wales under the Government Sector Employment Act 2013 or in any service of the Crown established by legislation”. But s.47A(3)(b) then expressly provides that the section does not apply to “the engagement of independent contractors or volunteer workers”. The Government Sector Employment Act 2013 (GSE Act) in Part 4, s.20 provides that “the public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown” (my emphasis). There is a note to that section that refers the reader back to s. 47A of the Constitution Act. There is nothing that I can see in that Act or the GSE Act that would give any comfort for suggesting that a volunteer fire fighter that is a member of a rural fire brigade under the Rural Fires Act would be an employee (or public servant) of the Government of New South Wales under that Act.

The ’employed’ staff of the NSW Rural Fire Service under the Rural Fires Act now form part of the Public Service of the NSW Executive Government (the Crown in right of NSW) as an ‘Executive Agency’ related to the Department of Justice under the name of “Office of the NSW Rural Fire Service” – s. 22; Sch. 1, Part 1 and Sch .4, Part 2, cl.5. The Commissioner of the NSW Rural Fire Service is the head of that Agency. I also note that under the Allocation of the Administration of Acts (as at 19 December 2014) the Rural Fires Act 1997 is administered by the Minister for Police and Emergency Services, not by the Minister for Justice, although the Office of the NSW Rural Fire Service is now an Executive Agency related to the Department of Justice.

That gets one to the ‘devil’ in the detail. As you have helpfully mentioned in your initial analysis, a volunteer fire fighter who is a member of a rural fire brigade under the Rural Fires Act (and they will have that status for so long as they remain on the Register of members for the brigade) will, by virtue of that membership, form a part of the unincorporated ‘service’ called the ‘NSW Rural Fire Service’ established under the Rural Fires Act, s. 8(1) (ss.8(2)(c) and (3)(a)) for so long as that Act remains in force. This NSW Public Sector ‘service’ comprises – (i) the Commissioner and other staff of the service (s. 8(2)(a)); and (ii) volunteer fire fighters, including those that are officers and members of a rural fire brigade under that Act (s.8(2)(c) and (3)(a)). As I have mentioned, persons in the former category (i) (the Commissioner and other staff of the NSW RFS) now comprise or form a part of the Office of the NSW Rural Fire Service. Persons in the latter category (ii) (volunteer members who make up rural fire brigades), cannot be part of the staff of the Office of the NSW Rural Fire Service because they are not “employed in the service of the Crown” (GSE Act, ss. 20, 21); they do not come within the definition of “public service employee” (GSE Act, s.3); and there is no provision in the GSE Act that deems them or any other public sector volunteers to be employees for the purposes of that Act.

Without checking chapter and verse, I’m happy to accept that all of that’s true but I don’t think it makes any difference. It merely asserts that volunteers with the RFS are not employees or part of the public service. That’s true (see ‘What does it mean to be a ‘worker’’ (February 19, 2015); see also Rural Fires Act 1997 (NSW) s 10(2)).

At this point, a bit of history about our Brigade might shed some light. It would seem that the Brigade came into being as a bush fire brigade when the NSW Bush Fires Act 1949 was in force. Under that Act the brigade would have been formed or organised by the local council or by the responsible Minister (s.19) – cf s.15 Rural Fires Act. In its initial stage the Brigade would have started as an ‘association’ (my words) of local volunteer fire fighters who came together with a common goal and interest. When formed or organised as a bush fire brigade under that Act they had a captain, deputy captain, group captain, or deputy group captain and members with powers, duties and authorities conferred on them in respect of a bush fire (s.24). But that Act made it clear in s.23 that they were not, merely by reason of the conferral of those powers or duties, to be deemed to be servants of a council or the Minister, as the case may have been. There is no equivalent provision to s.23 of the repealed Bush Fires Act 1949 that I can find in the Rural Fires Act that replaced it (which I think is unfortunate). Upon the enactment of the Rural Fires Act the Brigade, as it existed under the Bush Fires Act 1949, was effectively dissolved and became a rural fire brigade under the Rural Fires Act with the same officers and members – Sch. 2, Pt.3. cl.5.

So at that point the history also becomes irrelevant. The issue is the status of brigades today.

Thus, there seems to be little doubt that the Rural Fires Act first requires the existence or creation of an ‘entity’ or ‘group’ under the Act as a rural fire brigade (by transition from the repealed Bush Fires Act or newly formed by a council or Commissioner under the Rural Fires Act) before the volunteer fire fighters that constitute the membership of that brigade can then become (by consequential operation of s.8) part of the ‘NSW Rural Fire Service’ established by the Rural Fires Act. But, for the reasons I have suggested, the brigade officers and members are not part of the public service of NSW, or employees of the Executive Government, and therefore not a part of the NSW Crown. On this basis the Crown Proceedings Act to which you referred presumably would not apply to them.

I don’t agree with that. The transitional provisions in Schedule 2 moved an old brigade into the new structure, but the Act in its present tense doesn’t require the existence of an ‘entity’ or ‘group’ to form a brigade. The Commissioner could form a brigade with no members, for example assume there was a new development underway and it was decided that it would be good to have an RFS brigade. The brigade could be formed and then a recruitment drive undertaken to fill it. A pre-existing entity is not required. The transitional provisions were just that, to transfer then existing brigades to the 1997 Act, but the relevant law is now the 1997 Act.

The Crown Proceedings Act does not apply to the volunteers, it applies to the Crown. It says that the Crown may be sued. The RFS is part of the Crown so if someone wants to sue over the alleged conduct of the RFS or one of its members, the appropriate defendant is the state of NSW – see Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45; see also State of New South Wales v West & Anor [2008] ACTCA 14 where the then Commissioner, Phil Koperberg, was removed as a defendant in the Canberra litigation, though granted he was clearly an employee of the Crown, not a volunteer.

I think therefore that your conclusions that – “The model where brigades were formed and then joined the State organisation no longer applies in NSW'” ; and “It is not the case that firefighters are a member of the brigade and the brigade is somehow a member of the RFS”; may be a case of putting the cart before the horse.

Ok, fair enough. Minds differ, that is why, ultimately cases end up in the High Court of Australia – because minds differ on what the law says or mean. I don’t think that model applies today and reference to the transitional provisions that applied when the 1997 Act came into force does not change my opinion on that matter.

I also think that your conclusions that – “the RFS is an agency of the Crown and the brigade is part of the RFS” and “The RFS is not some separate agency that coordinates or manages disparate brigades, there is but one service and each brigade is part of it” misses the critical point (in my humble opinion) that the Office of the NSW Rural Fire Service currently established as an executive agency related to the Department of Justice by virtue of the GSE Act from 12 December 2014 does not include volunteer fire fighters who are officers and members of a rural fire brigade.

However those officers and members do comprise a part of the ‘service’ established under the Rural Fires Act as the ‘NSW Rural Fire Service’, though not as servants or agents of the Crown. But by virtue of the provisions of the Rural Fires Act, Regulations and the RFS Service Standards they are under the direction and control of the NSW Rural Fire Commissioner when performing any powers, authorities or duties conferred on them under that legislative regime. Further, under that regime the entity, body, organisation or association (however you want to describe it) of volunteer fire fighters called a rural fire brigade under the Rural Fires Act (and which can only mean the members for the time being on the register of members for the brigade under s.20) has a mandated constitution (rules) under the Rural Fires Regulation 2013 (cl.4) and the Service Standards. It is also required to have a council or other governing body (Executive Committee) with office-bearers and with prescribed voting rights for its members in the election of its office-bearers and other matters; to have annual general meetings; and to maintain accounts.

The Rural Fire Service includes the volunteers by virtue of the Rural Fires Act 1997 (NSW) s 8. The fact that they are not members of the public service is irrelevant. They are members of the RFS.

I sometimes glibly say that if a thing looks like a duck, walks like duck and quacks like a duck – then it is a duck. A rural fire brigade formed or established under the Rural Fires Act has all the characteristics of a formal association (or body) of volunteer fire fighters that are not incorporated. There does not exist under the Rural Fires Act an incorporated rural fire brigade as a separate legal entity from its members with a power in its own name or right to own property or to sue or be sued. Yet, a limited degree of self-governance and independence for this entity called a rural fire brigade is clearly contemplated and encouraged under the NSW legislative regime for rural fire districts.

I agree with that; but the degree of autonomy allowed is determined by the Commissioner. The standard constitution could be quite different and remove all of those issues of self-governance should the Commissioner want to do so.

So what in reality is the true legal character of a rural fire brigade under the Rural Fires Act, if you accept my argument that it is not a part of the newly created Office of the NSW Rural Fire Service and therefore not part of the Public Service of NSW under the GSE Act and that its volunteer members are not employed in the service of the Crown in the Public Service of NSW by virtue of s.47A of the NSW Constitution Act?

My answer is that its true legal character, regardless of all that history, is that a brigade is an administrative unit of the Rural Fire Service. It is part of that service, it has no separate legal standing and the volunteers are members of the RFS subject to the direction and control of the Commissioner. The Commissioner may well give some ‘limited degree of self-governance’ but that doesn’t change the true legal character of the brigade.

I am also indebted to you in drawing attention to the 2012 Discussion Paper – Review of Local Government Engagement with the RFS and the Rural Fire District Service Agreements between NSW local councils and the NSW Rural Fire Service Commissioner made under the authority of s.12A of the Rural Fires Act. The Act (s.15) still confers on local authorities the primary function of forming rural fire brigades for any rural fire district, and with other related functions under the Act. A local authority includes a local council for an area under the Local Government Act 1993 (Dictionary -defn. ‘local Authority’). Although there is no provision in the Rural Fires Act for a local authority to delegate to the NSW Rural Fire Service Commissioner any of its functions under the Act, that outcome has been indirectly achieved by these Rural Fire District Service Agreements between the Commissioner and local authorities. Under these agreements local Councils have effectively contracted out of their functions and duties under the Act by agreeing with the Commissioner that he may exercise them (in consideration for an annual fee of $1.00). The agreements that I have seen are stated to continue from their commencement date for an indefinite period unless terminated. It seems however from the 2012 Discussion Paper to which you have referred that local councils are not happy with these contractual arrangements. If it were to be the case that these agreements, or any of them, were terminated and not renewed, then the relevant local councils would effectively take back control from the Commissioner in the exercise of the councils’ statutory functions under the Act. These Rural Fire District Service Agreements do not have a retrospective operation. So if a rural fire brigade was formed by a local council for a rural fire district before the Council entered into a s.12A Rural Fire District Service Agreement with the Commissioner then it is likely that the council would remain the ‘responsible authority’ for approving the constitution for the brigade, not the Commissioner (see your earlier post – ‘Constitution for NSW RFS’). Section 12A did not form part of the Rural Fires Act 1997 when originally enacted. It was inserted into the Act in 2000.

I don’t think the historical situation would flow on. If the arrangements were terminated, and local authorities did undertake the responsibility for forming brigades under s 15 then yes, the local authority would have to approve the brigade’s constitution.

I apologise for the above detail and the length of it. I thought it might however assist your readers to better see the trouble I have been having (and perhaps others also) in trying to get a more correct understanding of the legal status of a rural fire brigade under the Rural Fires Act NSW and the degree of autonomy that the brigade may retain (if any) outside the day to day control and direction of NSW Rural Fire Service Commissioner, especially in administrative matters.

I think you are reading too much into the history that has been replaced by the 1997 Act. Today Brigades have no separate legal standing and their autonomy, such as it is, is that allowed by the Commissioner. Certainly the Commissioner has set out a standard form constitution that allows Brigades to have their own rules to suit their own circumstances and member’s needs.

I infer from all of this and from the effort made, that there is something that the Brigade in question wants to achieve or assert that is contrary to the wishes of the Commissioner, otherwise why would it matter? Brigades clearly have autonomy in the sense that they are made up of people and volunteers can volunteer to do what they want to do, and not volunteer for things they don’t want to do etc. But my view of the legal position is that a brigade is administrative unit of the Rural Fire Service subject to the direction and control of the Commissioner not only with respect to firefighting but also with respect to internal administration.