It seems all my questions these days are coming from the NSW RFS. I’m happy to field questions from other services and other states? Until then this one is from the RFS and asks ‘How autonomous are NSW Rural Fire Brigades?’
This question has been troubling me since taking up appointment of President of my local RFB. I can recall reading a past post in which you explained that the extent of control that the NSW Fire Commissioner could exercise over decisions taken by a local volunteer RFB about its constitution would depend on whether the RFB was formed by its Local Government Council or by the NSW RFS Commissioner.
Our Brigade, like many in its situation, was home-grown back in the 50’s. Over the years it came under the umbrella of the NSW RFS and is grateful to be supplied by and have the active and daily support of the NSW RFS in its operational responsibilities. It happily sees itself today as a volunteer organisation under the direct support and indirect control (but only in operational matters) of the NSW Rural Fire Commissioner.
The Brigade has no written Rules or Constitution (at least none ever made by it that I have been able to discover). It will apparently soon have a template constitution to be mandated and imposed by the NSW RFS, but with a limited right for the Brigade to make local rules, provided they don’t contravene or conflict with the standard constitution. None of this is yet of concern to the Brigade, but we wonder why we will soon have a constitution (not of our making) that will impose an umbrella control over how we will operate as an unincorporated volunteer emergency organisation into the future, but with a restricted capacity in a restricted time-frame to make rules (another word for constitution) provided they fit within this State-Government mandated constitution umbrella. So, the question – How autonomous are NSW (volunteer) Rural Fire Brigades that have evolved as my local Brigade has?
I have said recently to others our brigade has the appearance of a QANGO (Quasi Autonomous Not Government Instrumentality) but is in reality today an indirect agency of the NSW Crown (NSW Executive Government) under the direction and control of the NSW Rural Fire Commissioner. Am I correct in making this general assumption? After all, in taking-up the offer by NSW RFS some years past to equip our Brigade with two new Cat 7’s in replacement for our old Cat 1 and to maintain the current fire-fighting vehicles at no cost to our volunteer members, how could we pretend otherwise! That must be our operational status. But how much freedom is left to us in all other matters, including for example the property on which we would base our operations and garage our fire-fighting vehicles and other equipment (not all of it supplied by NSW RFS)?
It would be helpful if our Brigade’s current legal status as an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act could be clarified by a more constructive legal analysis than by my current off-the-cuff remarks.
The earlier post that this correspondent referred to is ‘Constitutions for NSW RFS brigades’ (May 21, 2014). In that post I said:
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 Act refers to brigades formed by local authorities but, in reality, there are no such brigades. RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:
Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).
The model where brigades were formed and then joined the state organisation no longer applies in NSW but it does still apply in Queensland where ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’ (Fire and Emergency Services Act 1990 (Qld) s 79). In Western Australia bushfire brigades are still the responsibility of local government (Bush Fires Act 1954 (WA) s 41).
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 explained in the 2012 Discussion Paper – Review of Local Government Engagement with the RFS, p 4:
Under the Rural Fires Act (NSW) 1997 and the Rural Fires Regulation (NSW) 1997, the RFS was formed as a single state level/managed agency.
The Rural Fire Service consists of the Commissioner, staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8). It is not the case that firefighters are a member of the brigade and the brigade is somehow a member of the RFS. The volunteers are members of the RFS and the RFS operates the brigades. A brigade is not an ‘unincorporated volunteer emergency organisation’ (and can I suggest it wouldn’t want to be) but is part of the very much incorporated RFS. The problem with being an unincorporated association is that any liabilities would belong to the officer holders of that association. Incorporation creates a fictitious legal person that can sue and be sued in its own right. As part of the RFS a brigade can’t be sued but the State of New South Wales can be (Crown Proceedings Act (NSW) s 5).
As my correspondent has noted, a brigade constitution must comply with the terms set out by the ‘responsible authority’ which as noted, is for all practical purposes, the Commissioner (Rural Fires Regulation 2013 (NSW) reg 4). Even if brigades were still part of local government they would have to comply with services standards (Rural Fires Act 1997 (NSW) s 13 and (Rural Fires Regulation 2013 (NSW) reg 9). The Commissioner has set out the relevant ‘template’ constitution in RFS Service Standard 2.1.2 Brigade Constitution.
Conclusion
An RFS brigade is not a QANGO. It is not an ‘an indirect agency of the NSW Crown’. The RFS is an agency of the Crown and the brigade is part of the RFS. The brigade has no legal standing in its own right. The amount of freedom left to a brigade is determined by the Commissioner and is reflected by the standard constitution set out in the service standard. There are clauses that the brigades may draft to suit their own requirements and conditions.
It is my view that the status of a brigade is not that of ‘an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act’ rather it is a brigade formed by and as part of the Rural Fire Service. 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.
Reading this it would appear that RFS Brigades are now not much different from SES Units so I’m wondering why Brigades have Constitutions and SES Units don’t?
Good question and I have no idea why Brigades have or need constitutions rather than some form of ‘general regulations’. I expect it’s an historical anomaly.
As I understand the legislation, membership of the NSW RFS comes, for most volunteers, from membership of a rural fire brigade (see section 8 of the Rural Fires Act 1997). Therefore, for all practical purposes, a volunteer firefighter only gains the benefits of being a member of the RFS by first being a member of their brigade.
Compare this with the arrangements in s7 of the State Emergency Service Act 1989 where the SES comprises the Commissioner, staff and volunteers and there is no reference to Units.
Peter
That’s not really correct. Section 8 of the RFS Act says:
So one can be a member of the RFS without being a member of a RFS Brigade.
The State Emergency Service Act 1989 (NSW) s 7 says:
So in fact the SES Act does refer to units in a way that the RFS Act does not refer to brigades or require membership of a brigade to be a volunteer firefighter. Further, an SES Unit is ‘an organisation registered as an SES unit under section 18’ and s 18 says ‘The Commissioner may … register a group of persons as an SES unit …’ So a community group say the Kickatinalong Community Self Help Group Inc could apply to register as an SES unit in a way that is no longer provided for in the RFS Act. Given that it would make more sense to provide for SES constitutions, but as noted, that is not the case.
I’m sure the provisions in the RFS Act are a carry over from earlier legislation and reflect that under the Act authorities other than the Commissioner can establish brigades, even if, in fact, that is no longer the practice.
Michael,
Firstly an apology – you are absolutely correct about SES units and I misread the SES Act.
On the issue of being a member of the RFS without being a member of a RFB, my reading is that can only happen through clause 8(2)(a) or 8(3)(b). The issue of the Commissioner and staff is, I think, self explanatory. Clause 8(3)(b) creates membership of the RFS for a person who “voluntarily … engages in fighting … a fire with the consent of … an officer of a rural fire brigade”. My understanding is that this is designed to provide protection for a bystander (eg a landholder) who assists fight a fire, eg from liability under s128 if the Rural Fires Act, and eligibility for benefits under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (see the definitions of firefighter and official firefighter in that Act and how they are used in, for example, section 7) My reading is that the key concept in 8(3)(b) is the present tense of “engages” and that the membership is for the period of engagement in fighting a fire. In practice therefore, one can only be a volunteer frefighter by being a member of a brigade or engaging (present tense) in fighting a fire.
As an aside, I have always wondered about what is constituted by the Constitution of a Rural Fire Brigade. Surely the brigade is created by the decision of the “responsible authority”? My assumption is that the RFS is still (and slowly) evolving from a collection of brigades to a cohesive service and that eventually we will all accept the authority of “Homebush” but perhaps not for a few more years yet.
Peter I agree with you; a brigade constitution doesn’t really constitute anything, it just sets out the internal rules for the management of the brigade that is, as you say, constituted by the responsible authority. And your right to about casual volunteer firefighters, they are a member of the RFS only whilst engaged in fire fighting, but it is an example of membership (albeit transient) without being a member of the brigade.
I have enjoyed your legal analysis across a broad range of topics in the last 12 months. Your post on how the NSW RFS brigade lacks automonous standing I would assume to apply to every CFA, CFS, ACT RFS, QLD RFS brigade in Australia? Are we all the same and the relevant Fire Commissioner has all the legal power over us volunteers. I would appreciate a post into the future of when brigades legally lost their independence across Australia. A legal legislative timeline would be great.
Thanks Ian, but I’m afraid a detailed legislative history across all jurisdictions is beyond my resources. There are however histories out there. See
Robert Murray and Kate White, State of fire: a history of volunteer firefighting and the Country Fire Authority in Victoria (Hargreen Publishing, 1995)
Julie-Ann Ellis, Tried by Fire: The story of the South Australian Country Fire Service (CFS, 2001).
The NSW RFS traces its history in two issues of the Bushfire Bulletin
For period 1890-1969 – (2010) 32(1) Bushfire Bulletin 25-28; and
For the period 1960-2009 – (2010) 32(2) Bushfire Bulletin 25-28 (and that’s not a mistake, the page references are the same in both issues).
There is also a history of the RFS in the discussion paper that I mentioned in the original post, the 2012 Review of Local Government Engagement with the RFS. Interestingly that link takes you to a version maintained by the Local Government Association of NSW and on that version it says ‘History section removed’ (see p 4). A version of that paper, with the history section still there, can be found on the website of the Greater Taree City Council; see http://www.gtcc.nsw.gov.au/assets/Main-Site/Files/Attachments/BusinessPapers/2012/April/R4-Paper.pdf
I would think that most of the services also have some description of their history, including the history of their governing legislation on their web pages.
Good morning Mr Eburn
How then does Queensland Volunteer Rural Fire Brigades stand in relation autonomy?
In another comment on this post, Ian wrote ‘Your post on how the NSW RFS brigade lacks autonomous standing I would assume to apply to every CFA, CFS, ACT RFS, QLD RFS brigade in Australia? Are we all the same and the relevant Fire Commissioner has all the legal power over us volunteers.’
The situation is not the same in each state and territory but even so the amount of autonomy is very limited. In South Australia brigades are established by the Chief Officer (Fire and Emergency Services Act 2005 (SA) s 68). The brigades are part of the CFS, not an independent entity. The same is true in Tasmania (Fire Service Act 1979 (Tas) s 26) and the ACT (Emergencies Act 2004 (ACT) s 54).
As I noted in my original post in WA bushfire brigades are very much the creature of local government. To that extent the rules for internal administration (rather than operations) are a matter for local government rather than the FES Commissioner but brigades aren’t ‘autonomous’, they are subject to the local government by-laws.
In the NT fire brigades are established by the Minister (Bushfires Act (NT) s 56). Each brigade is to be incorporated as its own legal entity though they must have a constitution as set out in the Regulations (Bushfires (Volunteer Bushfire Brigades) Regulations (NT) reg 3).
The Country Fire Authority is a statutory body of 9 members (Country Fire Authority Act 1958 (Vic) s 7). Even so it is recognised ‘first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’ (s 6F). The status of brigades isn’t as clear in other states and this I think reflects the CFA’s history. Section 23 says the CFA (remembering that’s this 9 person authority) may ‘take measures to facilitate the formation of permanent or volunteer fire brigades’ and may ‘upon application made in the prescribed manner and form register a brigade and enrol the officers and members thereof’; it may ‘furnish any apparatus and other property acquired by or vested in the Authority to any brigade’. All of that gives the impression that the brigades are separate from the CFA. The CFA is this central body that is to facilitate emergency management and to take steps for ‘the more effective control of the prevention and suppression of fires in the country area of Victoria’ (ss 6 and 6B) but the members of the brigades are not members of the CFA (the members of the CFA are those 9 people appointed under s 7).
Even so details of how to go about registering a brigade, brigade constitutions, membership (including the need to be registered by the CFA), member discipline and financial regulation are all set out in the Country Fire Authority Regulations 2014 (Vic) regs 27-63. Victorian brigades may ‘adopt rules to govern the internal working and administration of the brigade’ which would give them autonomy to decide their internal management, not their operational response. Such rules must be consistent with the Act and Regulations and if no rules are adopted, the prescribed rules apply (reg 33).
And now to your question. The Queensland Fire and Emergency Service is made up of the Commissioner and fire service officers, who are employees (Fire and Emergency Services Act 1990 (Qld) s 8A). Volunteers are not part of the QFES. A group applies to the Commissioner of the QFES to be registered as a rural fire brigade (s 79). A rural fire brigade ‘may make rules … for the purpose of regulating its proceedings and the conduct of its operations including the acquisition, vesting and disposal of its property and funds’ but the rules must not be inconsistent with the Act and must be approved by the Commissioner. The brigades’ functions are ‘fire fighting and fire prevention’ and such other functions assigned to it by the Commissioner and in those areas designated by the Commissioner (s 82). The Commissioner may supply, or subsidise, the provision of equipment to a brigade (s 84). ‘The commissioner is responsible for the efficiency of rural fire brigades and may provide training and other assistance to them’ (s 85).
So how does a Queensland brigade stand in relation to autonomy? They’re not very autonomous. Brigades can have their own rules but they have to be approved by the Commissioner. A brigade can acquire its own property and that equipment belongs to the brigade, unless it was purchased or subsidised by the Commissioner in which case it belongs to the State of Queensland.
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.
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)).
So at that point the history also becomes irrelevant. The issue is the status of brigades today.
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.
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.
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 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.
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 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 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.
Mea Culpa!
“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.
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.”
Yes, that’s I what I also now see, and is I think the crux of it. Perhaps it might be even more accurate to describe a NSW RFS brigade today as both an administrative and operational unit of the NSW RFS but not part of the Public Sector Agency Office of the Rural Fire Service, which now contains all the employed staff of the NSW RFS and is headed by the Commissioner.
As other comments in this post query however, why then do brigades need to have a constitution at all? I ask the same question. As you have said, a brigade constitution doesn’t constitute anything – it justs sets out the rules for the internal management of the brigade. But by imposing on a brigade a requirement for a formal constitution and to review it annually the RFS is also imposing an administrative burden on its volunteer members that doesn’t seem to have any point, other than to create the illusion of some degree of autonomy, self-determination and self-governance for the brigade which in reality is not there.
The RFS Act does not itself impose any requirement on a brigade to have a constitution. That requirement is also not imposed, but only inferred by the RFS Regulation 2013, s.4(1) – “ (1) The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for the following matters:——-“
Service Standards promulgated from time to time by the Commissioner under s.13 of the RFS Act is the mechanism by which the Act intends the Commissioner to control the operation and management of brigades, and I believe they have worked well in this regard. I don’t know whether bush fire brigades under the repealed Bush Fires Act 1949 ever had any direct or indirect legislated requirement to have a formal constitution. Perhaps some of your other readers who were members of bush fire brigades may be able to answer this?
I commend you for maintaining this blog and the effort and research that you clearly put into your replies to the various posts and follow-up comments. I have also enjoyed (and been enlightened and better informed) by your legal analysis across a broad range of topics in the last 12 months.
Chris
The Bushfires Act 1949 (NSW) (at least when it was made in 1949 – see http://www5.austlii.edu.au/au/legis/nsw/num_act/bfa1949n31146.pdf) was very similar to the current Act other than it said Brigades could be established by the Minister rather than a Commissioner. Again there’s no obvious reason why brigades need, or needed, a constitution.