This question touches on a significant issue in rural or bush fire fighting. The details provided by my correspondent, a volunteer with the NSW Rural Fire Service, are very extensive, but I have edited them down to distil the essential facts whilst trying not to identify the participants, the location or the fire.
The gist of the issue is that my correspondent was with a volunteer brigade that had been sent out of area to assist at a large campaign fire. The incident controller had determined ‘that there would be no active, direct firefighting’. Even so the firefighters were approached by people whose properties were at risk. They understood that they were ‘being directed not to help the local farmers when they are in effect begging for help’.
This is not the first time this has happened – see Self help firefighting in Victoria (August 30, 2014).
The questions
My correspondent refers to RFS standard operating procedures that ‘clearly states that the RFS should provide a “Service to those in need” and asks ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’ He goes onto say:
I do not believe that any member of the RFS, staff or volunteer has the authority to direct a member of the RFS not to follow Fireground SOP #1…
Even with large fires on the worst possible days there will always be parts of the fire and parts of the day when it is safe to conduct active direct firefighting. To deny the farming community RFS support when it is perfectly safe makes little sense and it would also contravene Fireground SOP #1.
As for commands issued by the IC:
… do you have to follow them? According to a recently released Service Standard 1.1.7 Code of Conduct and Ethics they are directives and yes, you do have to comply with them. Importantly it also states that the directives have to be “lawful and reasonable”… [At this fire]… crews were directed not to help the community even when the farmers and their families were directly asking for help. [Our]… crews had no other tasking and it was safe to help. No explanation was given for this directive …
I believe this directive was definitely unreasonable and most probably unlawful in the sense that it directly contravenes Fireground SOP #1.
And then there is a question about the nature of the RFS.
The RFS is a community based fire service where members are appointed from within their local community rather than one of the three tiers of Government. As volunteer members of a local brigade we are in effect “community servants” rather than “public servants”….
I do not believe that any member of Government, be it the Premier of NSW or senior public servant as in the RFS Commissioner has the authority to direct RFS brigades not to help their communities…
I guess I am asking or would like to know is am I barking up the wrong tree and is it me that has got it totally wrong or does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?
Reference documents
The RFS is governed by a number of instruments. The Act is at the top of the hierarchy, the service exists and operates because of the Act. Under the Act are the regulations – the Rural Fires Regulation 2013 (NSW) – that are endorsed by Parliament. The Act and Regulations provide the overall structure but not the details of how the service is to operate. That is left to the Service under the command of the Commissioner. The procedures and policies are set out in documents such as Policies, Service Standards and Standard Operating Procedures. As Service Standard 1.5.1 Management of NSW RFS Policy Documents correctly states:
1.5 In case of any conflict between a policy document [ie ‘NSW RFS Service Standards, Policies, Standard Operating Procedures (SOPs) and any other relevant documents issued by the Commissioner’] and an Operational Protocol, manual or guideline, the policy document will take precedence.
1.6 In case of any conflict between legislation and a NSW RFS policy document, the legislation will take precedence. In the event of any inconsistency, the legislation will prevail over any other document.
The RFS is very good at publishing its Service Standards, Policies and Operational Protocols online. I was unable to find a copy of the Fireground SOPs on the RFS website but I did find a copy of the Rural Fire Service Fireground S.O.P.s (1999 Edition) on a brigade website. I will refer to them on the assumption that they are the current version.
The legal structure of the RFS
The RFS may have begun as a collective of brigades, where people joined their local bushfire brigade that was in turn linked to the overarching organisation that set standards and helped ensure consistent equipment. That has not been the case since the passage of the Rural Fires Act 1997 (NSW). The Office of the NSW Rural Fire Service led by the Commissioner of the NSW Rural Fire Service is a government executive agency related to the department of Justice (Government Sector Employment Act 2013 (NSW) Sch 1). The Rural Fire Service itself is not a legal entity in its own right, it is part of the government that is sued and can sue in the name of the Crown in Right of NSW. The RFS consists of the Commissioner, the staff and the volunteers of the RFS.
The Commissioner is (s 12):
…responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
(2) The Commissioner may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff.
The Commissioner may delegate any member of the RFS to perform the Commissioner’s duties or exercise the Commissioner’s powers (s 14). A list of delegations is set out in Service Standard 1.3.1 Delegations and Authorisations. Further, the Commissioner can nominate officers to exercise the powers listed under s 22 of the Act. The designations under s 22 are set out in Service Standard 1.3.2 Powers of Officers.
The Commissioner sets the functions of an RFS brigade (s 21). Brigades may believe that they are a community organisation but they are part and parcel of a government service – see ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015).
The Commissioner, not the community, appoints the members of the RFS even though, necessarily they come from the community that they serve (Rural Fires Act 1997 (NSW) s 20 and Service Standard 1.3.1 Delegations and Authorisations).
In a covering email my correspondent said ‘From my perspective, a community based volunteer fire service must have some fundamental differences than a fire service like NSW Fire & Rescue’ but that difference is not clear. FRNSW also depends on community members as retained firefighters and even permanent officers relocated to a new station become members of their own community. The legislative and command/control arrangements for FRNSW and the RFS are not significantly different. Both are government operated fire brigades although the RFS depends on unpaid volunteers in a way that FRNSW does not.
The chain of command
Regulation 9 of the Rural Fires Regulation 2013 (NSW) says
An officer or member of a rural fire brigade or group of rural fire brigades is guilty of a breach of discipline if the officer or member:
(a) contravenes the Act or a provision of this Regulation, or…
(c) fails to comply with the Service Standards.
Penalties for a breach of discipline can range from a reprimand to termination of membership.
Service Standard 1.1.7 Code of Conduct and Ethics says:
All members must also comply with any lawful and reasonable direction or instruction given to by another NSW RFS member empowered to make such a direction or instruction under legislation, regulation, delegation or authorisation.
The role of Standard Operating Procedures
My correspondent says that the RFS Standard Operating Procedure (SOP) ‘clearly states that the RFS should provide a “Service to those in need”…’ That is an incomplete statement of what is in the SOP. S.O.P. #1 Basic Priorities says:
Procedure
- The priorities at all fires and other incidents are as follows:
- Overriding Priority – Firefighter safety
- First Priority – Protect people
- Second Priority – Protect property
- Third Priority – Help restore normality.
When it comes to ‘Service to those in need’ it says:
Consistent with safety, all officers and firefighters should provide the firefighting and related services reasonably needed and wanted by the community.
My correspondent’s first question was ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’ the answer has to be ‘yes’. The obligation to provide ‘service to those in need’ is not absolute. It is subject to safety, so there can be a direction to withdraw service when it is the risk to safety exceeds any perceived benefit.
Where there is no risk to safety the SOP begs the question of what is meant ‘by the community’? Community is a vague term that can mean so much. A crew may see the community as those in their immediate vicinity; the sector commander may see the community as those on the rural land in the villages. The Commissioner may see the community as ‘the community of NSW’.
Further what services are ‘reasonably needed and wanted by the community’ not only depends on the definition of community but also perspectives of what is likely to be effective. Two people could read SOP 1 and Service Standard 1.1.7 Code of Conduct and Ethics guidance for ethical decision making (see [3.3]) and come to quite different opinions of what is the appropriate response in all the circumstances.
Because there can be different views someone has to decide – and that is the role of the person delegated by the Commissioner to make that decision – ideally the incident controller. Given that the rural fire service is the New South Wales rural fire service, the incident controller, and ultimately the Commissioner has to decide how to allocate resources to best serve the community of NSW. It may mean withholding service from some part of the community in order to deal with threats to other areas. In my summary of the decision in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701, I said:
With respect to fighting the fire, he [Walmsely AJ] held that there was no legal obligation or duty owed to the plaintiffs. The RFS is established to provide fire fighting services for the common good, not for individual benefit. The RFS had to provide fire fighting across the state and on that day there were fires all across the state and providing a much more direct threat to different communities. If the RFS owed a duty to these plaintiffs then it owed similar duties to other homeowners across the state. The RFS had to make decisions about how to allocate scarce resources, how to manage and protect its own staff, and how to make decisions for the greatest good. All of these factors move against holding that they owe a duty to any identifiable individual that would, in turn allow a person to sue the RFS for failing to extinguish a fire.
One thing that decision makers’ must consider (Service Standard 1.1.7 Code of Conduct and Ethics [3.3]) is:
Is what I am proposing to do in the best interests of the NSW RFS and the Community? (i.e. Will it yield the greatest benefit or least harm to the most people and minimize the number of people who might be disadvantaged in the short or long term).
Holding crews back to be available to meet other demands etc may disadvantage some people but bring the greatest benefit to the most people. A fire service such as the RFS has to make decisions that may see them allow, or even cause, some properties to be lost in order to protect the broader community (Malverer v Spinke (1538) 73 ER 79; Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701; Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45).
The chain of command is there to provide a state wide fire service, not a combination of independent brigades, and to allow resources to be allocated where the Commissioner or his or her delegate determines. If brigades are free to ignore those commands there is no coordinated effort and each community could only rely on its local brigade that will have insufficient resources to deal with many fires. Even so there are fires that will exceed the capacity of any fire service and so tough decisions have to be made.
Where the obligation is to obey ‘any lawful and reasonable direction’ then there is an ‘out’ if a member thinks the directive is not lawful or not reasonable. In that case Service Standard 1.1.7 does not compel obedience but a member has to recall that interpretations of what is reasonable, and to a lesser extent lawful, can vary. If you take the view that you are not going to obey a command because it is unreasonable or unlawful then that may be accepted. But if it’s not, if in some after action review it is alleged that there was a failure to comply with a ‘lawful and reasonable direction’ the members will have to be prepared to justify their decision and the review authority may, or may not, agree with their analysis.
Does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?
Notwithstanding the above, the answer has to be ‘yes’ because volunteers are just that. And they can decide they’re not going to volunteer. The ultimate sanction is that they can be dismissed from the RFS, but equally their ultimate power is that they can withdraw their service. If one brigade refuses to follow direction, the members may be removed from the RFS. If all the brigades refuse, the Commissioner may be removed.
If we look at the letter of the law however, it is the Commissioner that is ultimately responsible for the management of the service and its response to any fire. The Commissioner can delegate his authority to officers and importantly to the incident controller. The legislation provides for a chain of command and Service Standard 1.1.7 requires members to follow those directions from the authorised officers. The Standard Operating Procedure is the lowest ranked document and it does not clearly determine the matter. Opinions about what constitutes the ‘community’ and what are the ‘services reasonably needed and wanted by the community’ will vary depending on the perspective of the decision maker. In a campaign fire, decisions must be made about the allocation of resources and priorities and brigades and members are expected to implement those decisions.
What is essential, however, is not to be found in law. What is required, I suggest, is good communication and trust. Everyone will see the situation from a different perspective. The IC who is located away from the brigade, doesn’t have the on-the-ground view but hopefully trusts brigades to be flexible and adaptive to adjust to local conditions whilst still trying to meet the commander’s intent or objectives. The brigades don’t have the whole picture that we hope the IC has but hopefully trust the IC to be making decisions that are in the best interest of the whole community. Communication on the fire ground and making sure everyone has a common operating picture is always difficult if not impossible. But this blog isn’t about decision making in a crisis, it’s about the law.
Australian Emergency Law 
Michael as you often say, not every answer to every question can chase down every issue. To flee or not to flee a community in strife is something we will never know, until we have to actually face it. I personally have copped blunt admonishment from authority for taking a ‘moral’ stand over a SOP while on the fire ground. My judgment and that of my crew at the scene proved correct , it also gave the only reasonable option at that time. Fortunately a successful outcome resulted. I sometimes refer to the late Spike Milligan and his flexible quote,”If we haven’t got a plan, nothing can go wrong.”
Or my favourite relevant axim from the nineteenth-century Prussian military commander Helmuth van Moltke: “No plan survives first contact with the enemy”.
Michael, this is why Australasian command and control doctrine (AIIMS) emphasises ‘mission command; and ‘commander’s intent’ as being so important. No incident controller can possibly know everything that is happening at a large incident at any given time. The command and control structure on the ground has to be able to use intelligently applied discretion, within the overall intent of the commander, to achieve the outcomes we seek for the community.
The key however is ‘intelligently applied’ and ‘within the overall intent of the commander’. A commander might instruct a strike team to stand by to be available as a strategic reserve to protect life. If that strike team decides to use all its water to protect some fences, and is then unable to respond to a call to protect a community and lives are lost, heads would rightly roll. On the other hand, if an instruction has been given to stick to indirect firefighting methods, and a situation arises where direct attack on a section of the fire is required (and can be applied safely) to preserve life or critical infrastructure, we might expect the command structure on the fireground to recognise that and to do the right thing.
My advice to your correspondent would be that if they are intelligently using discretion to achieve the commander’s intent, then they should be congratulated for that. What they should avoid is any sense of ‘I will set my own priorities regardless of the bigger picture’; if they want to do that they should resign from the RFS and buy their own fire truck (subject to your previous blog posts on the legality of private firefighting!).
Paul I totally agree with your comments about ‘intelligently applied’. The issue with this particular fire was that the crew leaders were never told that restrictions had been placed on fire fighting either at the morning briefing or throughout the day. The issue that arose was never about peoples own priorities but why the standard priorities clearly laid out in SOP #1 were not being followed.
With respect to your reference to private firefighting if it wasn’t for the farmers and their private uts and tractor “appliances” a lot more property would have been destroyed. The big red trucks were instructed to watch. I sure you can take a good guess at what some of the local farmers had to say.
Michael you have established that the Incident Controller for a fire has the legal authority to restrict firefighting activates. I would be interested to know if there is any requirement to notify affect parties of this decision. Normally with Government services the responsible agency goes out of there way to notify the public when services are going to be restricted or not available. Is there any requirement for the RFS to notify either the local community or the volunteers if standard fighting services are not going to be available?
Mike, I’m not sure if one could say there is a legal requirement but it would certainly be good practice. The adage is that it’s as important to put the information out as it is to put the fire out. On the other hand, most fire service public messaging is that landowners should not and cannot expect a fire truck particularly on catastrophic days. Whether its communication with the community or between the IMT and brigades, it seems to me that the issue under discussion in this post is communication, not law.
Thanks again Michael. I don’t think that the average person expects there to be a fire truck but just like the drowning man who was swimming between the flags with lifeguards on the beach he hopes there will be some help provided. I would also think that the drowning man doesn’t really care if it the reason he is not being saved is a legal or communications issue. In the same way that the mere presence of lifesavers and flags has sent a message the presence of fire trucks on the fire ground has by its very nature sent a message and created an expectation. If the agency responsible , in this case the RFS is allowed under the current law to withdraw a public service by deciding that there will be no active direct firefighting today and is also allowed not to communicate that decision then I would think that it would be reasonable to say that to the effected parties (farmers and volunteers) just like the drowning man would feel that the system has failed them. If the system (the law) has allowed this to happen then I guess there is only one sure way of fixing it and that is to change the law so this can not happen again.
Thanks Mike, for the interesting analogy, but I don’t think it works. The problem with the drowning man and the flags is that both can be moved. The person can chose not to enter the water, and the lifeguards can and do move the flags. Perhaps the person on the land who normally expects a response from a fire brigade is akin to the person in the water who enters between the flags but the lifesavers move the flags because of changing conditions. You can’t say ‘but I still want you to behave as if I’m between the flags because when I entered the water, I was between the flags’. But still that analogy breaks down as the landowner can’t move their land, unlike the swimmer who can exit the water or go between the flags in their new position.
My understanding is that a fire service may decide to withhold direct firefighting for one of or a combination of reasons, including the fire is simply too big so direct firefighting won’t work, committing firefighters to firefighting will expose them to danger when expected changes in the weather or the situation occur and/or committing firefighters to direct firefighting to save this property means there aren’t resources to respond when there’s an immediate threat to life or a threat to more significant properties, perhaps the school or the industry that is also the town’s major employer.
If we want a maritime analogy perhaps it’s more like a boat owner asking the Volunteer Coastal Patrol to save their boat that has come adrift and is likely to run aground and the Coastal Patrol declining on the basis that they know the local fishing fleet, with people on board, is making a dash to return to a safe harbour and they need to keep their resources ready to respond for threats to life over property?
In any event the law is not about to change. The relevant law is common law rather than statutory law. Courts are not going to say that there is some duty to respond when asked because that would be akin to requiring hospitals to run the ED on a first come first served basis rather than triaging for need. Fire and emergency services have to make decisions – hard decisions- on priorities and courts have recognised that hence finding that they don’t owe a duty to come and rescue individuals because they have to make bigger decisions for the common good. There may be debate about what’s the best decision to make but that is what the chain of command is therefore. Someone has to make a decision and that someone is the Commissioner or his or her delegate.
As for the duty to warn that does exist in some statutes (see for example Country Fire Authority Act 1958 (Vic) s 50B; see also articles written by me: ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13 and ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55) but exactly what that requires will depend on all the circumstances. It is a duty (where it is a duty) to take reasonable steps to communicate the warning, not a duty to guarantee that everyone receives it and understands it.
Read any post event review and issues of communication both from the agencies to the community and between themselves is difficult. So what does the IMT know about the fire behaviour and how do they get a message out are difficult. I can’t see either the legislature or a judge holding that a fire service can’t allocate resources according to priorities unless they have told or consulted with affected landowners first. To do so would unduly constrain the service and not allow flexibility to adjust the response to the developing circumstances.
S128 Rural Fires Act may assist here
s128 (1) A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
The RFS Officer is a member of the service and thus a protected person, as are the members of the RFS crew If it was felt that assistance needed to be rendered to the farmers then an individual response could have been made as an act of good faith to the local community. In rendering an act of good faith the members of the RFS crew will not be subject personally to any action or claim, including any action or claim made by the RFS, or anyone else.
There is nothing wrong with catering for sideline incidents that are often encountered during campaign operations. In firefighting, there is an evergreen adage and that is – despite anything else, always deal with the fire that you have, as opposed to the one that you might have.
Glenn, I think you put far too much faith and hope in s 128. It may mean that no-one (not the firefighters or the RFS) is going to be liable to pay compensation for any loss or damage suffered by the community but it won’t extend to stopping disciplinary action. If it did it would defeat the whole idea of the ‘chain of command’. The idea of any action or claim is a an action or claim for damages – see WorkCover v NSW Fire Brigades [2006] NSWIRComm 356.
Having said that it doesn’t mean disciplinary action will follow. At the end of the day a brigade decision may be quite reasonable, and can you imagine the headlines – “RFS punishes firefighters for saving house!” Even if the headlines are that brigades are being disciplined for failing to honour the commanders directions that reflects badly on the institution and leadership. An organisation that leads only by threats is not going to be effective. My post was that the ultimate sanction is disciplinary action but not that disciplinary action should be expected or is likely. As noted in my earlier comments this is really about communication (which is not the subject area of this blog). And I note the response by Paul regarding AIIMS and the need for s ‘mission command’ and ‘commander’s intent’ rather than prescriptive directions. The IC can set a task to a brigade but its the brigade that are on the ground and have to work out how best to safely achieve those objectives.
To reiterate, the issue under discussion in this post is really communication, not law.
Thanks Michael.
No, I am not putting faith in the law, just suggesting that the notion of good faith is much clearer, for firefighters, indeed since the very case that you have cited in your advice. I spent every day in the NSW Coroner’s Coroners Inquiry into that very incident, as held at the Toronto Court complex over a period of many months. Ultimately a matter that came down to things done or omitted to be done in terms of good faith. In that case, let me just say that in terms of individuals being subject to any action in undertaking acts of good faith, this meant ANY action.
Your advice is that this is about communication. I agree, It is in fact about bad communication, namely the provision of unreasonable directives issued to the Correspondent ‘that there would be no active, direct firefighting’. It is also about whether such directives can be determined by the recipient as unreasonable or untenable, Of course they can .
It would seem that your correspondent may have been unaware what an act of good faith meant. My advice was aimed at assisting your correspondent by highlighting legislative references to acts undertaken in good faith such as assisting farmers in immediate need.
Rather than hold up AIIMS as some sort of reference of how things should be done, AIIMS is the poor relation of ICS which itself is widey maligned for not connecting with volunteers. In this case AIIMS allowed a person in higher authority to impose his/her perception of the situation over the perception of the ground crews and their dedication to their communities.
AIIMS is the most likely source of the problem here.
Although it is called the Coroners Court, it is not a court of law. Coroners investigate matters but they cannot determine legal rights and wrongs. A coroner cannot rule on liability or adjust legal rights. Section 128 does not many ANY action. If it meant disciplinary action it would completely rewrite the industrial relations environment in the RFS. Further the courts have held that it does not apply to criminal law (that was the Industrial court, not the coroner) and the High Court has ruled that these types of clauses are to be read as narrowly as possible. A breach of discipline as defined in the rules cannot be defeneded on the basis of ‘good faith’ and s 128. Which is not the same as saying that the fact that the decision was made in good faith is not evidence that there was no breach of discipline, just that s 128 won’t be relevant.
It’s not that AIIMS allowed a person in higher authority to impose his/her perception of the situation over the perception of the ground crews and their dedication to their communities”, the legislation and the command structure of the RFS did that. AIIMS is the common platform that all the agencies have agreed to in order to assist in interagency cooperation, but it’s not AIIMS that gives the IC his or her authority, it’s the legislation governing the particular emergency services, the legislation governing the development of the state/territory emergency management arrangements and the delegations from the commissioners and chief officers.
I was referring to AIIMS in ageneral sense. Not everything in emergency management stems from a legislative hierachy. Your suggestion in relation to how AIIMS might work within an existing hierachy in the case of the RFS may be valid, but i doubt that any such arrangement assisted your original correspondent. In a general sense however the use of AIIMS /ICS by agencies including those agencies that are not emergency services, reveals that AIIMS ICS can in fact derive its own hierachy. There is an AIIMS hierachy and agencies adopt that hierachy when the occasion arises. Agencies in relation Health, Transport etc take on roles under AIIMS, that they would not undertake on a daily basis as opposed to emergency services for instance. In fact they may have no legislative basis at all when employing AIIMS.
With this in mind AIIMS was intended to standardise ICS for Australian application but the bugs in ICS were never addressed , they were merely transplanted into AIIMS. This means that AIIMS/ICS is known to be top heavy, as much as ICS Field operatives such as firfighters and other field staff including Traffic Managers, Rail staff, and health staff can, and do, suffer from a lack of information or clear mission as they may be too far down the reach of AIIMS. In many cases privatised services are used in emergency management and they are often left out of AIIMS or they do not understand AIIMS, yet they are part of the emergency management operations.
For instance, In the event of a flood emergency in the Greater Sydney Area the establishment and maintenance of flood escape routes and evacuation routesb are largely managed by NGOs. Yet these NGOs are not permitted to use the Government Radio Network (GRN)even though they may part of an AIIMS / ICS related incident management system. A clear disconnect.
So AIIMS is the common denominator and whereas legislative power is likely not. As a common denominator AIIMS carries common shortfalls. These shortfalls are most pronounced in the case of volunteers and NGOs.
Returning to my previous post, it is entirely possible that AIIMS top heavy focus was the source of the of your correspondent’s dillemma, as a volunteer firefighter in the field.
Further reading can be found in any analysis of ICS by Prof E. (Enrico) Quarantelli and also here:
https://www.researchgate.net > publication. A Critical Evaluation of the Incident Command System and NIMS