Today’s post again revisits the vexed question of the status of volunteer rural fire brigades, again in Queensland.  See also:

As noted today’s correspondent is from Queensland. They say:

A survey is presently being carried out through a series of meetings around the state, to address concerns that rise primarily from the effects of the unincorporated status of rural brigades as community service providers.  Our brigade has been part of this process, and we have attempted to clarify the areas of our concern.

The rural firefighters I have spoken with have become volunteers to serve their communities.  None have sought to join a state authority.  Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

They then go on to pose some questions;

Our brigade has been concerned that members might become personally liable when engaged in activities that might be argued are not under the direction of QFES.  The following hypothetical seems all too possible:

Brigade members are controlling parking at the local showgrounds market; an activity that earns a significant income from ‘gold coin’ donations.  The road outside the showgrounds is the only connection between the north and south of the Mountain, and a roundabout gives access to the showgrounds.

The queue of incoming vehicles stops moving and fills back to the roundabout.  Traffic is gridlocked.

The senior brigade officer on site tasks a firefighter with directing traffic to keep the roundabout clear.  This instruction is given under an understanding previously agreed with the local police sergeant.

There is a traffic accident in the melee at the roundabout, with property damage and a person hospitalised.

The ensuing enquiry establishes that the understanding with the police was a verbal one, but with the previous police sergeant.  The new sergeant had not given such a direction.  The firefighter has no accreditation from the Department of Transport and Main Roads as a traffic controller and has received no training in traffic control.  Brigade members are accused of negligence.

  1. When the situation slides like this, from one in which the chain of responsibility is clear, to one in which it has become less so, can the volunteer expect the support of QFES?
  2. Must RFBs fall back on the volunteer provisions of the Civil Liabilities Act?
  3. Would you expect that they would be required to defend themselves in court?
  4. If so, what support might they expect from QFES?

Another scenario:

A storm cell has brought down many trees across the Mountain.  The first officer calls brigade members to the station and sends chainsaw crews out on patrol with instructions to assess, report, and begin clearing fallen vegetation.  This deployment is called in to Firecom as community support.

Later, when a team of SES volunteers arrives at one of the sites, their controller announces that they will be taking over the work.

There are no directives in the rural fire brigade manual covering this type of spontaneous response to extreme weather events of short duration.  (These events develop and are over before any activation of the QFES Severe Weather Alert system.)

  1. In responding as described above, is the brigade acting within the remit of QFES, or have they moved into uncharted waters?
  2. How is the RFB to respond to the SES controller?

The sense of unease expressed above extends to the issue of equipment bought by the brigade with brigade-raised funds.  We would like to have clear ownership of these assets, with the ability to buy and sell, and to also to engage contractors, to employ staff, etc., etc.

In 2013 your advice was that rural fire brigades in Queensland should become incorporated associations.  That option was the elephant in the room.  However, I’ve been following the paper trail on the matter of whether our brigade might incorporate, and it seems to me that incorporation isn’t an option.

The commissioner has effective control of any rural fire brigade by virtue of sections of the Fire and Emergency Services Act 1990, s 79 – 82. 

In the Association Incorporations Act 1981, s 5, I read, “(1) An association is not eligible for incorporation under this Act if the association – (d) is provided for in a special Act that— (iii) specially regulates its affairs”.

It seems to me that, being unincorporated associations operating under the provisions of the Fire and Emergency Services Act, RFBs in Queensland are disqualified from becoming incorporated associations.  Certainly, the writer of the following QFES directive agrees with that interpretation:

D1.6 Rural Fire Brigade Manual Effective Date: September 2017

Social Clubs

What I Need to Know and Why

  • This procedure outlines the requirements and restrictions which apply to rural fire brigades in regards to social clubs and conducting social activities.
  • Rural fire brigades operate within a written set of Queensland Fire and Emergency Services (QFES) endorsed Brigade Management Rules and are able to conduct social activities under existing structures and procedures. Therefore, brigades cannot become incorporated under the Association Incorporations Act 1981.

I have not been able to find this critical information elsewhere and find it curious that it’s tucked away here.  My impression is that the directive was produced in response to an attempt by an RFB to better manage ‘social activities’ through incorporation.

  1. Would you now agree that RFBs in Queensland cannot become incorporated associations?
  2. If so, could a trust, formed by supporters and independent of QFES, satisfy the desire to responsibly manage the brigade’s community service activities, to raise and control funds, to purchase and maintain ownership of certain assets, to employ staff, hold public liability insurance, etc.?

I’ve also been provided with extract from the Rural Fire Brigade Manual in particular

  • D1.3 Legal Matters: What I Need to Know and Why (Effective Date: September 2017); and
  • D1.3.1 Protection from Liability (Effective Date: September 2017); and

The answers are really set out in those documents but I’ll add some comments.

Incorporation

The comment ‘In 2013 your advice was that rural fire brigades in Queensland should become incorporated associations’ came as a bit of a surprise.  First let me again note that this blog is not advice given to anyone in particular, it is a discussion forum based on necessarily incomplete information.  But it does appear I did say ‘They should seek to have brigades incorporated, ideally under the Associations Incorporation Act…’ (see A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013)).  Having written about this issue in subsequent posts I now depart from that opinion.

First, I had not previously noted the details of the Association Incorporations Act 1981 (Qld) s 5(1)(d) that is

An association is not eligible for incorporation under this Act if the association—

(d) is provided for in a special Act that—

(iii) specially regulates its affairs

As noted in earlier posts, in particular Status of Queensland Rural Fire Brigades (September 10, 2014) the Commissioner has extensive control over brigades. It is possible that the Commissioner could impose obligations or require Brigades to have rules that are inconsistent with the Associations Incorporation Act.  I would infer that is why s 5(1)(d)(iii) is there.  To stop Associations being stuck between conflicting obligations. Where there is a specific Act (in this case the Fire and Emergency Services Act 1990 (Qld)) that regulates the Associations affairs, it should not be incorporated, and therefore regulated by the Associations Incorporation Act.  So I would now agree that RFBs in Queensland cannot become incorporated associations under the Associations Incorporation Act.

The functions of an RFS brigade

The functions of a Queensland Rural Fire Brigade are ‘fire fighting and fire prevention and such other functions as the commissioner may direct’ (Fire and Emergency Services Act 1990 (Qld) s 82).  (Note that the functions of the SES include ‘to perform activities to raise the profile of the SES or raise funds to support the SES in the performance of its other functions’.  There is no similar function for RFS brigades Fire and Emergency Services Act 1990 (Qld) s 130).

Let me consider the scenarios remembering that the legal outcome in any matter depends entirely on the facts.  This hypothetical discussion is not an advice on any particular event either that has happened or that might have happened.

With the first scenario I have to ask ‘why would you do that?’  The money may be nice, but the fire brigade could perhaps earn money by doing plumbing, or electrical work, or running a child care centre, but presumably someone would say ‘that’s not our function; it’s not what we’re trained to do; that takes a skill set we don’t have; we really shouldn’t do it’.

With respect to the traffic control we all know that people who do perform traffic control duties for a living get specific training whether they are contracted traffic controllers at an accident site or police.  It’s one thing to close a road, or even stand at a road side and warn people – there’s an accident down there – it’s another to start controlling traffic at a non-emergency.  If traffic control was required why haven’t the market organisers engaged a traffic control company.   If the ‘senior brigade officer on site tasks a firefighter with directing traffic to keep the roundabout clear’ what on earth would make anyone think that was a good idea or that the firefighter had a clue what to do?

But even so why would anyone sue the firefighter? First the obligation is on the driver’s not to crash into each other.  The cars are likely to be insured. The first if not the only rule of civil litigation is ‘sue the defendant with money’.  All courts can award is money damages and only money will pay the bills.  The volunteer won’t have money. So the other defendants will be the driver at fault, the market organiser, the police or the QFES long before anyone looks to the volunteer.

As noted the volunteer will be able to point to the Civil Liability Act 2002 (Qld) but only if they are doing community work but not if the member was ‘acting outside scope of activities or contrary to instructions’.  To the extent that the RFS has endorsed the activity in question, either expressly or by implication by knowingly allow it to continue (perhaps it’s done every year) then the member is doing community work for the RFS. The member is not there as Jo(e) Citizen, they are there as the Rural Fire Brigade as evidenced by their uniform.  It’s the Fire Brigade that is conducting the activities and it is the fire brigade, under the ultimate direction of the Commissioner that is liable. On the other hand, if the Commissioner has given an express direction not to do the task then the members would be on a frolic of their own but even then, the State could be liable for not ensuring it’s directions are complied with.

The issue is not whether the volunteer has the support of QFES, it’s whether the plaintiff can establish that the brigade, under the control of the Commissioner, was negligent.  Then the plaintiff sues the State of Queensland and there’s no doubt that was a volunteer from the state of Queensland that was there.  There could be all sorts of arguments about what is a ‘purpose’ under the Act and whether a person was acting in accordance with instructions etc.  Those can’t be addressed hypothetically, they depend on the facts of each event.

In any event I don’t expect a volunteer would ever be required to defend themselves in court because no-one would sue them.

As for the storm response, I can’t say whether the RFS brigade is ‘acting within the remit of QFES’. Storm response isn’t an obvious function of the RFS but the functions include ‘such other functions as the commissioner may direct’ and I don’t know what directions the Commissioner has given with respect to being first responders pending the arrival of other agencies.   Neither the Fire and Emergency Services Act 1990 (Qld) nor the Queensland State Disaster Management Plan (Reviewed September 2016) specifically says that the SES is the combat agency for the response to storms, so the response of the RFS really depends on the local emergency management arrangements and what has been put in place for that local government area.  Traditionally (and in other states) one would expect the SES to take control of the response to storms but in Queensland it is very much a matter of what is provided for in the local emergency management arrangements.

The functions of an SES unit.

I note that the functions of an SES unit are whatever ‘the commissioner considers appropriate for the unit’ taking into account ‘the needs of the community in the relevant area’.  It would seem if you want to be a member of an agency of ‘community service providers’ it may be better to join the SES rather than the RFS which has much more specific functions.

The real issue

This is a very long list of questions and a long answer – but I see that the real issue is this:

The rural firefighters I have spoken with have become volunteers to serve their communities.  None have sought to join a state authority.  Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

The problem is they’ve joined a fire brigade not the Lions Club or some other community service organisation.  The function of the brigades, why they are there and why they are established is to provide ‘fire fighting and fire prevention and such other functions as the commissioner may direct’.  It is not up to the brigade to decide that their function is whatever community service they wish to provide or for the members to wish that the brigade was something it is not.

The members could incorporate as the Kickatinalong Rural Fire Brigade Social Club Inc to raise money for the Christmas party or to buy equipment, but that incorporated entity is not the brigade.  The brigade is established when a ‘group of persons’ applies ‘to the commissioner for registration as a rural fire brigade’ and that application is accepted.  If that same group of persons then form an association that is associated under the Associations Incorporations Act the incorporated association is not the same as the brigade, it’s a separate legal entity.   The members of the incorporated Association may, by coincidence, also be members of the local RFS brigade, but the incorporated Association is not the brigade and exercises no powers under, and gains no authority from, the Fire and Emergency Services Act.

And a fire brigade can’t (or shouldn’t) say ‘we’re a fire brigade, we’re a bunch of well-intentioned community members so we can do anything that seems like a good idea (such as directing traffic, or providing first aid services (see Can NSW SES provide event first aid services? (November 13, 2016))’.  And the issue isn’t ‘we’ll be sued and QFES won’t support us’ but those services actually require skill and knowledge that is not part of what a fire brigade can or should do.  And if you want to do those things, do a proper risk assessment to get the skills required.

If members are nervous that they ‘might become personally liable when engaged in activities that might be argued are not under the direction of QFES’ or are not a function of an RFS brigade, then don’t do them.   If you want to do those things then create the ‘Kickatinalong Community Support Group Inc’ and do those things with whatever protection the members think they may gain (remembering that a plaintiff will sue the incorporated association if they think they have the money, but exactly the same issues arise, – what if the volunteer is sued personally? Will the Incorporated Association support them? Etc). The Kickatinalong Community Support Group Inc has as much authority to do the traffic control at the local show as the fire brigade and if it’s the same members, then it also has the same training and experience (which is, apparently, none at all).

The questions – and the answers

The questions I was asked were:

  1. When the situation slides like this, from one in which the chain of responsibility is clear, to one in which it has become less so, can the volunteer expect the support of QFES? It depends on the instructions given from the Commissioner. If that sort of practice has been common and endorsed by the first officer etc then yes.  If there is a specific direction from the Commissioner ‘you are not to do this task’ then no.
  2. Must RFBs fall back on the volunteer provisions of the Civil Liabilities Act? Yes but that’s always true.
  3. Would you expect that they would be required to defend themselves in court? No because I would not expect anyone would ever seek to sue the volunteer, that would be sending good money after bad.
  4. If so, what support might they expect from QFES?  That depends on whether you are acting contrary to an express instruction or not.

 

  1. In responding as described above, is the brigade acting within the remit of QFES, or have they moved into uncharted waters? Refer to the local emergency management plan and if it’s not clear, raise it with the local emergency management group.
  2. How is the RFB to respond to the SES controller? Refer to the local emergency management plan and if it’s not clear, raise it with the local emergency management group.

 

  1. Would you now agree that RFBs in Queensland cannot become incorporated associations? Yes, I do now agree that RFBs in Queensland cannot become incorporated associations
  2. If so, could a trust, formed by supporters and independent of QFES, satisfy the desire to responsibly manage the brigade’s community service activities, to raise and control funds, to purchase and maintain ownership of certain assets, to employ staff, hold public liability insurance, etc.? A trust becomes very complex and I make no comment on it.  The members could form an incorporated Association to provide activities that are beyond the remit of the RFS but the Association would not be an RFS brigade within the meaning of the Fire and Emergency Services Act 1990 and no doubt would need a different name and couldn’t use the logos and other indicia of the RFS. It would have none of the legal protection offered by the Act or QFES.

Conclusion

Our brigade has and wishes to continue to offer a range of community services that lie outside those covered by the Fire and Emergency Services Act.

Will members be liable? Almost certainly not.  In any event they are holding themselves out as the RFS and that’s what anyone’s going to see. If the Commissioner wants to stop that activity he or she needs to ensure that directions are passed down to that effect but even if members are breaching those directions, then the QFES/State will be liable for not ensuring that the directions were complied with.

But if you want to ‘offer a range of community services that lie outside those covered by the Fire and Emergency Services Act’ then the Act is irrelevant.  You can’t (again recognising that every case would turn on its own facts) decide that QFES provides community services that are outside its function – just doing it doesn’t make it so.  And it may be that the state can and might say ‘what you were doing was not being done for any purpose under the Act and therefore you were not performing any function under the Act, you just happened to have our uniform on’.  No doubt the purposes of the Act will be read widely and doing things like training and activities to bring cohesion to the brigade and community engagement can all be seen as a purpose under the Act as they improve the ability to fight fires.  How the QFES will see any particular event depends on what directions have been given, from the Commissioner down to the first officer, and the particular facts of each case.  The issue, I infer, isn’t corporate status, it’s that members want to do things that are outside the Act but want to enjoy the protections offered by the Act.

Incorporation won’t help because the incorporated association won’t be the brigade. If members want to provide those services outside the control of QFES they can’t incorporate their brigade, but they can create a new non-government organisation. That organisation can do what it likes including buying equipment. If it donates that equipment to the RFS then the equipment is owned by the State.  If it loans equipment it may retain ownership but whether the RFS would accept the equipment on that basis is another matter.

Like it or not, fire brigades under the FES Act are established to fight fires and they are funded by the Commissioner (s 84) and local government levies (s 128A) for that purpose.  It is no doubt very good for brigades to provide community services to engage with the community, build support and help build resilience to disasters caused by all hazards.  I can’t comment on what the Commissioner has said about the functions of the brigades and their role in community engagement and community support.  But at the end of the day brigades are under the direction and control of the Commissioner. The Members may not want to have joined a state agency, but that is indeed what they’ve joined.

Advice

My advice is read the Rural Fire Brigade Manual in particular

  • D1.3 Legal Matters: What I Need to Know and Why (Effective Date: September 2017); and
  • D1.3.1 Protection from Liability (Effective Date: September 2017); and

The answers are set out in those documents.   No-one is going to give, in advance a carte-blanche guarantee that QFES or the State will wear any liability for anything you do in uniform because the capacity of humans to do really stupid things knows no bounds.  So if you want to do the local traffic control for the show, and you’re not sure whether that will be accepted as acting for the purposes of the Act (see s 129); then ask up the chain of command for approval.