A consultant ‘to a number of organisations, including local governments, in emergency management’ asks for comment on the following question “Can a Victorian emergency agency (e.g. fire service or police) commandeer an asset/property to become a relief centre?” The relevant context is:
There was an overnight apartment block fire in which residents were displaced. The notification to council, as the local organisation responsible for emergency relief, was reported to have been delayed (circumstances not provided). The council appointed officer attended the scene, which is the SOP for this council, well after the emergency commenced. On arrival, it was discovered that the fire service had used their ‘master key’ to open a nearby council owned and operated childcare centre. The ‘master key’ is supplied by the building owner to the local station to facilitate fire service entry after hours in response to a fire call at that premises. When the council officer questioned the fire service’ authority to enter, the reply was along the lines of “We have a master key to the building, and we can enter to use it as an emergency relief centre”.
According to my correspondent this raises some supplementary questions:
- If one of the evacuees was injured, or the property is damaged, under such circumstances, without the appropriate authorisation from council, who would be liable?
- If there is precedent authority for ’emergency commandeering’ of facilities, is that limited to government facilities or might a privately owned facility with an automatic fire alarm, for which keys have been given to the local fire station, also be accessed, and if so what are the security/insurance cover implications?
- Although perhaps a ‘long bow’ that would never be pursued, if there is no authority (or permission), has a criminal offence been committed by gaining access, and if so are all the evacuees vicarious offenders after the fact?
Whilst I could object to a consultant using this service to get advice for his or her client, I will assume that this is not a core part of this consultant’s work. Further I agree with my correspondent that the answer ‘may also be of interest to many of [my] readers, from both the asset owner and an Incident Controller perspective’. I answer the question in the sure and certain knowledge that my correspondent won’t use this answer in any report written for a client without due acknowledgment and that he or she will not charge the client for providing the answer.
There is a power to commandeer private assets in the Emergency Management Act 1986 (Vic). During a declared state of disaster, the Minister may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (s 24(2)(c)). Clearly that section does not extend to an incident controller at an event that is not a declared state of disaster.
The senior member of the operational staff of the Metropolitan Fire Brigade may (Metropolitan Fire Brigades Act 1958 (Vic) s 32B(3)(c)):
… may, for the purposes of dealing with any alarm of fire, cause—
(i) any land building structure vessel or vehicle to be entered upon or into (if necessary by force), taken possession of, shored up, pulled down, otherwise destroyed or removed…
The Chief Officer of the Country Fire Authority (Country Fire Authority Act 1958 (Vic) s 30(1)(c) and (d)):
… for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:
He shall have authority either alone or with others under his command to enter upon any land house building or premises and if necessary to force open any outer or inner doors of any house or building which may be on fire or in the near neighbourhood of any fire for the purpose of taking any steps which he deems necessary for any of the purposes aforesaid, and he may take or give directions for taking any apparatus required to be used at a fire into through or upon any land house building or premises which he considers convenient for the purpose…
He may take any measures which in the circumstances are reasonable and which appear to him to be necessary or expedient for any of the purposes aforesaid and in particular he may cause any house building or structure to be entered into and taken possession of or pulled down or otherwise destroyed or removed …
An authorised member of the Victoria State Emergency Service (Victoria State Emergency Service Act 2005 (Vic) s 32AB):
… may enter any land or premises—
(a) with the written or oral consent of the occupier of the land or premises; or
(b) without the consent of the occupier of the land or premises if a Service member reasonably believes that entry to the land or premises is urgently required to protect life or property in the course of—
(i) responding to, or preparing for, a flood, earthquake or storm; or
(ii) providing a rescue service.
Although it is arguable, it is my view that the intention of these sections is to allow the relevant officer to enter the premises to deal with the hazard (ie the fire or the flood). The power vested in the fire officers to shore up or pull down a building makes it express that the point of the power is not a general power.
One has to remember that there is no general duty to rescue (Stuart v Kirkland-Veenstra  HCA 15). If fire and other emergency services could simply commandeer private property it would be imposing a duty on the property owners that is not otherwise reflected in law. Further it is a general rule of statutory interpretation that an Act should not be read as curtailing fundamental rights and freedoms without express language. Finally it is a fundamental rule that one’s private property is sacrosanct – we’ve all heard that ‘a man’s home is his castle’ – that maxim is based on ancient law. In Seyman’s Case (1603) 77 Eng. Rep. 194 Sir Edward Coke said ‘That the house of everyone is to him as his castle and fortress’. William Pitt the Elder, one time Prime Minister of England said in 1763:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!
To give the fire and emergency services the power to enter property for the purposes described here, would be a fundamental shift in that law and would require express words, such as those used in the Emergency Management Act 1986 (Vic). The incident controller may have a duty of care to those people affected by the fire or other emergency but he or she may also have a duty to other property owners not to interfere with their rights (which includes the right not to assist) and to protect their property.
That is not to say the position is not arguable. If one takes the CFA Act as the example, it allows the Chief Officer to enter premises for the purpose of ‘protecting life’. Further damage done by the CFA in the performance of its functions is considered damage by fire (Country Fire Authority Act 1958 (Vic) s 93) and is therefore covered by fire insurance (if any). If it can be said that the entry was necessary to save a life, not merely convenient (see Murray v McMurchy  2 DLR 442). One can imagine circumstances for example where there is a bushfire and people are in the open area, the only shelter is a closed, locked private building. I can’t imagine anyone would object or it would be found unlawful for the CFA to force entry to the building to allow people to shelter inside rather than in the open. In those circumstances the damages to the building would be deemed to be damage by fire and the property owner would either claim on their fire insurance or bear the losses (if any) as they would if the building burned down. And if the CFA has put people in their in order to be able to protect them from fire then the property owner is likely to suffer less damage than if the CFA evacuated everyone, including its firefighters, and left the building to survive the fire.
Equally one can imagine the MFB or the SES forcing entry to a building if that was the only way to save a life. But where it is intended to make the evacuees comfortable that would seem far removed from the purposes for which the relevant powers are given and from the doctrine of necessity.
This then leads to the question of who’s going to complain? If, as in this case, it’s a council owned building and assume no damage is done, what’s the harm? Even if it’s private property and no damage is done, there may technically be a trespass but in the absence of damage there is unlikely to be any remedy worth pursuing. If there is damage done one would expect the state to make it good on the basis that the state commandeered the asset for its own purposes. The Emergency Management Act 1986 (Vic) s 24(5) specifically provides that a property owner is entitled to compensation for losses caused if their property is commandeered under that Act.
If an evacuee was injured, one would not expect the landowner to be liable because he or she did not intend, and could not foresee, that the property would be used as an evacuation centre so there wold be not duty to ensure that it was reasonable safe for that purpose. The fire authority (in reality the State of Victoria) having put them there and without a proper assessment of whether the facility is fit for purpose, would be the obvious defendant in any claim for personal injury damages. But mere proof of injury is not proof of negligence so issues of liability would depend on the particular facts.
It is indeed a ‘long bow’ to suggest that a criminal offence has been committed. Even if it hand there is no such thing as ‘vicarious offenders after the fact’. The evacuees would only commit an offence if they chose to steal something or deliberately damage the property once put inside.
The real issue from this example is a lack of proper planning or a commitment to the plan. No doubt there is a local emergency plan. As noted the council was responsible for providing the evacuation centre and the local plan should have indicated what facilities might be made available for that purpose. The incident controller should have been acting to put that plan into effect and council should have, as part of that plan, an appropriate communication and response capacity. If it’s left to the IC to do whatever seems like a good idea at the time, planning becomes irrelevant.
Where an IC does make use of a building the critical issue will be the thought process of the IC. If the IC thinks ‘these people have been evacuated, we’re waiting for council, it’s not very comfortable for them and I’ve got they key for this building, I’ll let them in there’ that’s probably not ‘reasonable’ and certainly not the purpose for which the IC is given the key or powers under the relevant Act. Further there is no risk assessment as to the facilities and the property owner is entitled to exclude everyone, including evacuees. On the other hand if the thought process is ‘these people are in immediate harm’s way and I need to find them somewhere safer and I need to do it now’ then it may be reasonable to enter a building. And then if the choice is between a private home and a publicly owned facility or even a business premises then it may be reasonable to avoid the private home. The childcare centre, or the office building, is likely to be safer (given OHS obligations that apply when they are being used for their purposes) and is less of an invasion of privacy than forcing entry to an apartment block. In that sense there may well have been a risk assessment – the risk of being outside is too high and this is probably the safest, and most ‘fit for purpose’ building I can chose here and now.
As is so often the case the question will be was the action reasonable in the circumstances and the circumstances would include how urgent was the need? Was the situation life threatening? And what alternatives were available?
It is my view that neither the Metropolitan Fire Brigades Act 1958 (Vic), the Country Fire Authority Act 1958 (Vic) nor the Victoria State Emergency Service Act 2005 (Vic) is intended to give incident controllers the power to commandeer private assets and in particular a building for use as a relief centre where that seems convenient rather than necessary as a matter of urgency to save a life. The fact that the Emergency Management Act 1986 (Vic) has a specific power demonstrates that the legislature thought of the issue and if they wanted to give that power to the various emergency services they could have done so, but they have chosen not to.