This question follows from my post ‘What obligation does local government have to assist the NSW Rural Fire Service?’ (August 8, 2018). In that post, I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).” So today’s correspondent asked:
Who does have the power to commandeer vehicles and/or equipment, and under what conditions? I am sure it would be a whole gamut of shades of grey depending on your location, your legislated role (“Emergency Officer” or a normal member), the specific usage case (whether you are commandeering the machinery because someone is under a direct and immediate threat to life), whether a reasonable person would believe the equipment would make a difference, whether a reasonable person would consent to being asked for permission to use it, etc.
Somewhat related, if someone was to “commandeer” (the basic actions, rather than the legal right to do so) equipment, but they intended to return it to the owner afterwards, what would they be charged with? I remember reading somewhere that, in order to satisfy the definition of “theft”, there has to be an intent to permanently deprive the rightful owner of the item.
It is indeed true that the answer depends on who you are, in what jurisdiction and in what circumstances. In every jurisdiction there are specific, and clear, powers to commandeer assets.
The Australian Capital Territory
Where there is an emergency and an emergency controller has been appointed, the emergency controller may ‘direct, in writing, the owner of property in or near the emergency area to place the property under the control, or at the disposal, of an emergency controller’ (Emergencies Act 2004 (ACT) s 150(2)(c)). A similar power exists where a formal declaration of emergency has been issued (s 160A(2)(c)).
New South Wales
In a declared state of emergency ‘… the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property’ (State Emergency And Rescue Management Act 1989 (NSW) s 38).
The Northern Territory
In a declared ‘emergency situation’, an ‘authorised officer’ may ‘direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer’ (Emergency Management Act 2013 (NT) s 23). During a declared state of emergency or a state of disaster an authorised officer may also ‘direct a person to assist in tasks to save life or property in immediate danger in the affected area’ (s 24).
Where there is a declared ‘emergency situation’, the emergency commander (Public Safety Preservation Act 1986 (Qld) s 8) may:
(a) direct the owner or the person for the time being in charge or in control of any resource to surrender it and place it under the emergency commander’s or police officer’s control (“resource surrender direction”);
(b) take control of any resource, whether it is in the charge or control of any person or not;
(c) in respect of any resource under the emergency commander’s or police officer’s control, direct any person who is capable of operating that resource to operate it as directed by him or her (“resource operator direction”)
An officer of the Metropolitan Fire Service, the Country Fire Service and the State Emergency Service may, for the purpose of responding to a fire or other emergency, ‘take possession of … or assume control over any … vehicle or other thing’ and may ‘direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person’. He or she may also ‘direct … any person … to assist in the exercise of any power’ (Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118). The state coordinator and authorised officers have similar powers during an ‘identified major incident, a major emergency or a disaster’ (Emergency Management Act 2004 (SA) s 25).
During a declared state of emergency the State Controller and Regional Controllers may exercise special emergency powers. These special powers are (Emergency Management Act 2006 (Tas) s 43 and Schedule 2) the power to:
(a) direct that the resources of the State and any council or other person be made available for emergency management as specified in the direction; and
(b) require the owner (including a council) of, or the person for the time being in charge of, any resources to surrender the resources and place them under the control of any person involved in emergency management…
During a declared state of disaster, the Minster may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (Emergency Management Act 1986 (Vic) s 24).
During a declared ‘emergency situation’ or ‘state of emergency’ a hazard management officer or authorised officer may ‘… take control of or make use of any place, vehicle or other thing’. That ‘place, vehicle or other thing may be in, or outside, the emergency area’ (Emergency Management Act 2005 (WA) s 69.
Apart from these specific powers there are general powers vested in the chief officer, commissioner, authorised officers or some other position of the emergency services. These powers are in the form of a statement that the relevant officer can do anything that he or she thinks is necessary, or reasonable, or expedient to deal with the emergency. There then follows a list of powers but these are said not to limit the general power. These general powers may include a power to take control of an asset but the purpose is usually to secure the asset or protect it from danger or remove it where it is contributing to the danger. For these general provisions, see Emergencies Act 2004 (ACT) ss 67(2)(d) and 68(2)(d); Fire Brigades Act 1989 (NSW) s 13; Rural Fires Act 1997 (NSW) s 22; State Emergency Service Act 1989 (NSW) s 22A; Bushfires Management Act 2016 (NT) s 47; Fire and Emergency Act (NT) s 20; Ambulance Service Act 1991 (Qld) s 38 (see also Requiring a bystander to assist a Queensland paramedic (February 18, 2017)); Disaster Management Act 2003 (Qld) ss 110 and 111; Fire and Emergency Services Act 1990 (Qld) ss 53, 83 and 149; Fire Service Act 1979 (Tas) s 58; Emergency Management Act 2006 (Tas) s 40 and Schedule 1; Country Fire Authority Act 1958 (Vic) s 30; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Bush Fires Act 1954 (WA) ss 39 and 44; Fire Brigades Act 1942 (WA) s 34; Fire And Emergency Services Act 1998 (WA) ss 18B, 18G and 18L).
Arguably, these general provisions would allow a commander to take control of an asset that would contribute to the response. Arguing against that interpretation is that it is clear that the parliamentary drafters know how to write provisions that authorise a person to commandeer assets. We can see in the provisions discussed above, that they have done so. If they wanted to give incident controllers that power as part of their routine operations, they could and would have done so as has been done in South Australia (see Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118).
Even if the power were interpreted in that way, it has to be limited to the presence of the emergency area so a fire incident controller may want to make us of a vehicle that is in the fire ground but it would not extend to travelling to the next council and demanding that they provide their grader or bulldozer to the fire effort.
It is impossible to say what the consequences would be if someone did simply take equipment that they thought was necessary for the response effort. The common law (Ilich v R (1987) 162 CLR 110 at 123) defined larceny (theft) as:
… a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, as the time of such taking, permanently to deprive the true owner thereof.
Without going into details in the circumstances under consideration it may be hard to say the taking was ‘fraudulent’ or that there was an intent to permanently deprive the true owner. But the common law has been changed by statute so it may no longer be necessary to prove an intent to permanently deprive (see Crimes Act 1900 (NSW) s 118) or there may be specific offences, eg ‘taking a conveyance without consent of owner’ (see Crimes Act 1900 (NSW) s 154A).
If a fire officer really did take something in the face of imminent danger and because he or she believed it was necessary to respond to the emergency they would be able to point to the common law defence of necessity (or it statutory equivalent in jurisdictions with a Criminal Code – Queensland, the Northern Territory and Western Australia) (see The doctrine of necessity – Explained (January 31, 2017)).
What follows is that I can’t say what a person may be charged with, if they would be charged at all, it would depend on all the circumstances.
The question that started this was whether a council in NSW had an obligation to provide plant to support an RFS response (What obligation does local government have to assist the NSW Rural Fire Service? (August 8, 2018)). I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).” The discussion above shows that the power to commandeer assets does exist but, with the exception of South Australia, that is generally only during a declared emergency or disaster or other situation defined in the relevant legislation.
The general powers of incident controllers may extend to taking and using private assets but if it did it would be limited and apply to assets that are very much in the disaster zone, not travelling outside that area to insist that neighbours provide equipment to assist in the response.
What about a loss? For example the MFS in Adelaide decides they need my car and while using it, damage occurs. My insurance may cover it, but assume I don’t have insurance. I’d like to believe the government would do the right thing and fix it, but is there something in law?
No there is nothing in law to compel them to pay. There are provisions that say damage done by a fire brigade is deemed to be damage done by fire (Fire and Emergency Services Act 2005 (SA) s 141) and that damage done during counter-disaster operations are deemed to caused by the hazard event (Emergency Management Act 2004 (SA) s 36). Both those provision do depend on the property owner being insured against the hazard involved.