Today’s correspondent is:

… the First Officer of a Queensland Rural Fire Brigade. We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)? Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

The relevant powers of an authorised fire officer listed in the Fire and Emergency Services Act 1990 (Qld) s 53 ‘Powers of authorised officer in dangerous situations’.  I will not repeat them here but they are the standard range of powers you would expect a fire commander to have when responding to a fire or other emergency.  A fire officer is ‘… a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’ (Fire and Emergency Services Act 1990 (Qld) Schedule 6).  A volunteer ‘First Officer of a Queensland Rural Fire Brigade’ is not a ‘fire officer’ as he or she is not an employee. It follows that he or she can’t be an ‘authorised fire officer’.

Sections 79-86 deal with Rural Fire Brigades.  Section 83 deals with the powers of a First Officer.  It says:

(1) Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a)          the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and

(b)          the control and direction of any person (including any fire officer) whose services are available at the fire.

(2) Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer.

(3) Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner.

(4) In this section—

“first officer” includes, where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available.

(5) Where a rural fire brigade is assisting in operations for controlling or extinguishing a fire, the person who pursuant to this Act or any direction given by the commissioner is in charge of those operations has the control and direction of the members of the rural fire brigade.

A notice under s 82(2) is a notice from the Commissioner identifying ‘the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention’.

A first officer therefore is not an authorised fire officer but he or she may exercise all the powers of an authorised fire officer where the brigade is operating within the area defined in the s 82(2) notice.

Who is the next senior officer is not clear.  The Act (s 81) says this about officers:

(1) A rural fire brigade must elect a first officer to be in charge of the brigade.

(2) A rural fire brigade may also elect such other officers as it considers necessary.

Discussion

My correspondent’s first point is:

We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

The powers of an authorised officer are not ‘given’ or delegated to anyone by executive action.  The power to exercise those powers is set out in the Act.  The first officer, or in the first officer’s absence, ‘the next senior officer’.  The Act does not say that the first officer has to be present, it says the first officer has to be ‘unavailable to Act’.  What that might mean could vary in many circumstances.

Note also s 83(2) ‘Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer’.   This allows a first officer to give ‘directions’ to anyone (not just a member of the fire brigade) and their action is in effect the exercise of those powers.  In other words, the first officer doesn’t personally have to do the things listed in s 53, he or she can direct others to do so.  Any other position would be impossible and would defeat the idea of being an officer that is the leader of the Brigade.

Reading s 83 the most senior officer can exercise the power of an authorised fire officer either personally or by directing someone else.  The Act does not require that officer to be present but to be available to Act.   If the officer is the Brigade commander (within the meaning of the Australian Interagency Incident Management System (‘AIIMS’)) he or she may be directing others but they may not be physically present together.  For example, a large brigade may have more than one appliance and crew; the first officer may be with one crew but still exercising command over the other.   In a reasonably small fire the first officer may be the incident controller and at a command post directing his or her own brigade as well as another ‘rural fire brigade [that] is assisting in operations for controlling or extinguishing [the] fire’.  If the first officer had to personally present it would beg the question of present where?

The second point is

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The problem here is what does ‘officer’ mean?  It’s not defined so does it mean ‘officer’ in the way the military use the term to distinguish between the officers and ‘other ranks’ or is an officer just any member in the way even a junior constable is described as a police officer?    The definition of ‘fire officer’ is ‘a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer.’  That isn’t making reference to rank and if it includes a trainee firefighter they are not an ‘officer’ in the way the military might use the term.

On the other hand the fact that a brigade is to elect a first officer and ‘such other officers as it considers necessary’ would suggest that an ‘officer’ is someone elected to an ‘office’ not any firefighter.

The conclusion is that we simply don’t know what ‘officer’ in s 83(4) means.  If ‘officer’ means a person elected to an office under s 81 then a brigade that responds to a fire without an ‘officer’ would be unable to take effective action.  I can’t imagine that is what the people of Queensland expect or want.  Given that outcome, and given the fact that when talking about QFES the Act refers to all members as ‘officers’ and assuming that the term means the same thing wherever it is used, I would infer that ‘officer’ in s 83(4) includes a ‘member’.  How seniority is determined within the Brigade is not defined so presumably that is a matter for Brigade rules (s 80).

Next my correspondent says:

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Given the wording of s 83, it makes sense to send local brigade officers to take command of the operations.  Why they can’t give the permission via radio or other means I have no idea. The Act says that the relevant commander is the first officer or ‘where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available’.  Given modern communications technology and the concept of command and control as defined in AIIMS the commander can’t be where every firefighter is.   I can’t see that ‘available’ equals ‘physically present where the action is to be taken’.

Next:

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)?

I think I have answered that.  The Act says that anyone can exercise the powers of the authorised fire officer if they are ‘acting at the direction of the first officer’.   It would be pointless if the first officer couldn’t direct a crew that is ‘over there’ to act.

Whether one is available to act may however depend on the circumstances.  And if you are at home, or on holidays, you may be in a position to take a phone call but you may not be in a position to assess the situation – to have adequate situational awareness – to make a proper decision.  A first officer would seriously need to consider what information was required, and if they had that, before making a decision or whether it would be better if you can’t turn out to leave the firefigting to those that can.  If you are at an Incident Control Centre on the other hand, that may indeed be the very best way to have the ‘bigger picture’ to make the decisions and communicate those decisions to the firefighters actually engaged in firefighting.

Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

I can’t see that every step needs to be authorised. The power to ‘enter any premises’ and ‘bring any apparatus or equipment onto premises’ (s 53) would seem to broad enough to say ‘make your way from A to B and fight the fire there’.

Finally

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

I can’t see that this would work.  The Commissioner may have the power to delegate but that would be intentionally done, not by implication.  Where a brigade is responded the Commissioner can’t know each person on the truck and to imply that each carried the Commissioner’s authority would be to make a section like s 83 meaningless.  It would have no work to do. However a first officer doesn’t exercise the powers of an authorised fire officer because he or she has a delegation from the Commissioner, they can exercise those powers because the Parliament of Queensland has said that they can.

First conclusion

My first conclusion is that pretty much everything my correspondent has been advised is wrong.   It is my view that a rural fire brigade First Officer when operating within the Brigades area of responsibility can exercise the powers of an authorised fire officer.  The next most senior officer may exercise those powers where the first officer is unavailable to act.  I would infer that the Act uses ‘officer’ to mean ‘member’ (as in ‘police officer’) not ‘leader’ (as in ‘military officer’).    The Act refers to the officer being ‘unavailable to act’ not ‘present’.

But that’s not the end of the matter

The next question is who gave the advice?  If it is a middle manager saying ‘this is my interpretation of the Act’ it is, in my view, wrong.

But s 83 says, emphasis added:

Where, pursuant to notification given under section 82 (2) , a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner;…

So if the ‘advice’ is contained in an edict from the Commissioner that limits how first officers (and others) are to exercise their powers then that has to apply. So if the Commissioner has said that a first officer has to be present at wherever any of the powers listed in s 53 are to be exercised then that would be a ‘limitation imposed by the commissioner’ and would override the ‘default’ position that is set out in the Act.

Equally an edict from the Commissioner that a first officer cannot give directions by ‘phone or radio would also be a ‘limitation imposed by the commissioner’.

Ultimate conclusion

The final conclusion depends on who gave the advice and on what basis.  If they are reporting on a policy decision of the Commissioner (which one would expect to see in ‘standing orders’ or ‘handbook’ or however the Commissioner’s rules are communicated) then the Commissioner can impose limitations on a first officer’s power to exercise the powers of an authorised fire officer.  If the Commissioner has done that, then those limitations have to be applied.

If on the other hand it’s someone’s ‘interpretation of the Act’ in my view they are wrong. In an earlier post (Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018)) I said ‘People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers…’  That still feels like good advice.