On 2 November 2016, the Bushfires Act (NT) was repealed and replaced with the Bushfires Management Act 2016 (NT). Rather than give a detailed explanation of the new Act, I quote from the second reading speech of the Member for Daly, Mr Higgins the then Minister for Land Resource Management. He said, when introducing the Bill on 21 April 2016:
This bill modernises and builds on the strengths of the existing legislation. It also draws on contemporary trends and approaches to fire management in other jurisdictions, and combines these with the successful bushfire management arrangements that have evolved in the Territory in recent years. It provides a custom framework designed to address the unique challenges of bushfire management in the Territory, while also addressing the gaps that have been identified in the existing act. …
A point of difference between this legislation and bushfire-related legislation in many other jurisdictions is its focus on planning and fire management rather than just fire exclusion…
The new legislation establishes a planning and mitigation framework across all of the Territory. It focuses on engagement with landowners and is designed to unlock the potential benefits of coordinated and strategic regional planning. It introduces a formal role for regional committees in regional planning and requires that all of the Territory will be supported by a series of regional bushfire management plans. These regional plans are guiding rather than prescriptive, and so do not create burdensome responsibilities for land managers
There is capacity, in circumstances where a significant risk of life or property has been identified, to prescribe mitigation actions in an area or on an individual property. This will only be possible following a detailed risk assessment process involving consultation with affected landowners and other stakeholders. In circumstances where a landowner, through failure to comply with a prescribed plan, continues to present a significant risk to others, it will ultimately be possible to enforce compliance with a prescribed property fire management plan…
The new legislation allows volunteers to be appointed as authorised bushfire volunteers. This will create a formal role for volunteer firefighters in the incident management structure and allow volunteers, by participation in the chain of command, to exercise the powers necessary to take part in a bushfire response.
I am particularly proud that the creation of authorised bushfire volunteers will also confirm the specific protection from civil and criminal liability while undertaking firefighting duties. This is an important step in improving support for our volunteers and ensuring they are adequately protected and not exposed to unacceptable levels of personal liability risk while contributing to this important community service.
The new legislation also provides authorised bushfire volunteers protection against dismissal or loss of employment benefits as a result of absence from work when requested by the Executive Director of Bushfires NT to attend large-scale high-risk wildfires. This is another important addition to the legislation that will ensure our volunteers do not suffer professional or employment loss as a result of their volunteering contribution during critical events. …
In summary, the Bushfires Management Act will continue the best aspects of its preceding legislation, strengthen support for volunteers and other stakeholders, and provide a comprehensive planning and mitigation framework uniquely suited to the land and bushfire management requirements of the Northern Territory.
Australian Emergency Law 
We continually receive expert advice from the various sections of the legal fraternity,
it is very sad Michael that those words of advice were not made to the NSW Government when re-framing the NSW Bush Fire Act, with the replacement of NSW Rural Fire Services Act, that now has caused such an anomaly to be enacted by punishing a Volunteer for carrying out Volunteer duties (irrespective of what nature). The Legal Profession should hang its head in shame in directing its wisdom of what it interprets is the law from its antiquated law books & punishing a volunteer for carrying out volunteer duties. If I was a Volunteer RFS Driver, I would never again RESPOND under lights or siren, to any incident particularly Motor Vehicle Accidents (MVA’s) until protective legislation is enacted in NSW, as was passed in NT, last November 2016. Ask yourself what does the RFS Driver do when parked on the wrong side of the road to protect his volunteers from injury when attending a MVA? You may consider possibly add, that in your Legal opinion all RFS Volunteer Drivers of Fire Vehicles should now only PROCEED to any incident but not RESPOND for fear of the “Now established “Precedent of Prosecution”.
Consequently they should not attend any MVA’s State Wide, as that type of incident can invariably place an RFS vehicle in an illegal parking position, hence possible prosecution irrespective of the task the volunteers are involved in carrying out. My last query Michael is what happened to the Good Samaritan Act? Without Volunteers in Australia in the Emergency Services this country would be in continued crisis when major Bushfires & Floods break out.
I am personally ashamed of the legal profession in what it has proceeded to do towards a RFS Volunteer.
Leonard, I infer that you are linking this post, regarding the new Bushfires Management Act (NT) and the prosecution of the NSW RFS driver. First, don’t accept as a full interpretation of legislation what the Minister says in the 2nd reading speech. Minister Higgins said:
“I am particularly proud that the creation of authorised bushfire volunteers will also confirm the specific protection from civil and criminal liability while undertaking firefighting duties. This is an important step in improving support for our volunteers and ensuring they are adequately protected and not exposed to unacceptable levels of personal liability risk while contributing to this important community service.”
But that doesn’t mean that there would be no liability should the accident that occurred in NSW now occur in the NT. What the Act says, at s 99(3) is:
“A fire control officer, fire warden or authorised bushfire volunteer acting in accordance with a direction given by a person participating in the chain of command at a bushfire is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the course of so acting.”
That would not have helped in this case as there was no bushfire, it is not clear he was acting ‘in accordance with a direction given by a person participating in the chain of command’ (ie he may have been directed to return to the weighbridge but I would bet he was not directed as to what route to take or to pull out in front of an oncoming car) and, if it had come to it, I’m sure it would be found he was not acting ‘in good faith’. It was not a case where he had a choice of actions to achieve a desired outcome for the benefit of the community and chose one even if on later reflection it may have been better to chose another. Remember the judges words –
“Mrs Katina Mihailidis died on 18 October 2012 because the offender did not want to lose the momentum of the vehicle he was driving. He did not want to have to change down to first gear. He did not want to stop. He did not want to wait the 11 seconds that it would have taken for the car in which Mrs Mihailidis was a passenger to have gone past him. Had he done those things, had he waited the 11 seconds for the car to pass, Mr and Mrs Mihailidis would have made it to their home in Mangrove Mountain in safety. She is now dead as a direct result of the actions of the offender. That 11 seconds was the difference between life and death for Mrs Mihailidis. Of course if he had known what was about to happen he would have waited but it was clearly negligent of him to fail to do so.”
That was not a good faith choice over firefighting tactics or even a balance between the need to arrive at an MVA and the otherwise expectation to drive in accordance with the Road Rules.
I’m sure that the RFS and Parliamentary Counsel knew what they were doing when they wrote the Rural Fires Act 1997 (NSW). As I’ve noted before the outcome of this case is not an anomaly and I did report on a 2009 prosecution of a Victorian volunteer firefighter with a very similar outcome.
This volunteer was not punished for performing volunteer duties, he was punished for failing to drive with reasonable care in circumstances that cost a person their life.
“The Legal Profession should hang its head in shame in directing its wisdom of what it interprets is the law from its antiquated law books & punishing a volunteer for carrying out volunteer duties.”
It is the job of the legal profession (and police) to apply the law – that is the essential point of the concept of the ‘rule of law’. Volunteers are not exempt the law – a point I try to reinforce by reference to the Road Rules. Emergency services aren’t allowed to drive through red lights etc because they’re ‘good people’ or ‘volunteers’ but because the law says they are allowed to do so and sets out the circumstances when they are allowed to do so. ‘Response’ driving is as much the subject of the law including the Road Rules 2014 (NSW) as any other driving. Of course it’s the legal profession that interprets the law and the law books in this case are hardly ‘antiquated’ – the Road Rules 2014 – though granted, it also involved the Crimes Act 1900. But a volunteer is not exempt the law and being a volunteer should in no way be seen as a licence to allow one person to negligently cause the death of another.
“If I was a Volunteer RFS Driver,I would never again RESPOND under lights or siren, to any incident particularly Motor Vehicle Accidents (MVA’s) Until protective legislation is enacted in NSW, as was passed in NT, Government last November 2016. Ask yourself what does the RFS Driver do when parked on the wrong side of the road to protect his volunteers from injury when attending a MVA?”
I don’t’ really understand that. Remember that Mr Wells was not responding (or even proceeding) to an MVA nor was he guilty of any offence due to where his appliance was parked. He was returning to a scene where crew members had been left in order to collect them and help clean up. There was no emergency. After the accident he did pull over to the left leaving the disabled vehicle in the dark, but that was not part of the allegation of negligence. His negligence was pulling out in front of an oncoming car, travelling at speed, when he was driving a heavy and slow fire appliance and doing so when there was no reason to do so. It was not a judgement call because he had to get to the burning vehicle across the road it was because he ‘did not want to lose the momentum of the vehicle he was driving’.
“You may consider possibly add, that in your Legal Opinion all RFS Volunteer Drivers of Fire Vehicles should now only PROCEED to any incident but not RESPOND for fear of the “Now established “Precedent of Prosecution”.”
The thing is that is NOT my opinion. This case does not support that at all, nor is it a unique or new precedent. Drivers of emergency vehicles are not exempt the law, even the exemptions they have they have because the law says they do.
“Consequently they should not attend any MVA’s State Wide, as that type of incident can invariably place an RFS vehicle in an illegal parking position, hence possible prosecution irrespective of the task the volunteers are involved in carrying out.”
Again that’s got nothing to do with the actual case. There was no MVA and the issue was not about ‘illegal parking’
“My last query Michael is what happened to the Good Samaritan Act?”
The good Samaritan Act applies to provide legal protection for those that step up to provide emergency first aid. It has no application to the work of the RFS unless an RFS crew were to come upon someone in need of medical care and were to render first aid whilst waiting for an ambulance. It has no application in the sort of event that occurred here. Further good Samaritan legislation is about civil, not criminal liability.
“in the Emergency Services this country would be in continued crisis when major Bushfires & Floods break out.”
That’s true, but can we not ask them to take care in how they do their task so as to not put innocent lives at risk? Remember too that this was neither a bushfire nor a flood and no-one’s life was at risk.
“I am personally ashamed of the legal profession in what it has proceeded to do towards a RFS Volunteer.”
I’m not. Whilst I have always maintained that this case is a tragedy for all concerned and my sympathies extend to both the family of Mrs Mihailidis and to Mr Wells, it is important, again as the judge noted to see that ‘Being a volunteer does not give anyone a licence to break the law’ and that ‘It is very important that drivers of all vehicles, perhaps particularly drivers of emergency vehicles, understand the responsibilities they have to avoid driving in a way which risks the safety and wellbeing of other road users’. This case and the sentence is intended, in part, to communicate that message.