Today’s correspondent is:
…looking for some guidance relating to the provision of private fire services. The state in question is South Australia. Can anyone start up their own private fire service and charge for their services and respond within the jurisdiction of a state fire service?
(I infer that this question does not relate to a private company, say a mine or owner of a large industrial complex, that operates a fire brigade, or contracts with a service provider, to provide a first response to an emergency or fire that occurs on the worksite and forms part of the businesses emergency procedures as required by the Work Health and Safety Regulations 2012 (SA) r 359). I infer that what is in mind is someone who wants to purchase an appliance or two and create a ‘fee for service’ brigade to offer contractors a service in lieu of the state’s emergency services).
My correspondent refers to anyone starting ‘up their own private fire service … within the jurisdiction of a state fire service’ and there are two state fire services.
The Fire and Emergency Services Act 2005 (SA) provides for the establishment of the South Australian Metropolitan Fire Service (SAMFS) and the South Australian Country Fire Service (SACFS) (and the South Australian State Emergency Service but that is not relevant for this discussion). The South Australian Fire and Emergency Services Commission (SAFECOM) may define fire districts ‘for the purposes of the operations of SAMFS’. Outside an established fire district, the SACFS is the relevant fire fighting authority (s 4). In other words the ‘jurisdiction’ of the SAMFS is within declared fire districts; the ‘jurisdiction’ of the SACFS is outside declared fire districts.
Outside declared fire districts it is an offence ‘without the approval of the Commission or the Chief Officer of SACFS, be a member of a fire brigade … that is not an SACFS organisation’. For the purposes of that offence the term “fire brigade” ‘means a group of people equipped to deal with fires on behalf of a local community’ (s 134). Whilst a person who wanted to set up a fire brigade and say provide contracted services to a work site may argue that is not dealing with fires ‘on behalf of a local community’ we can conclude, at least prima facie, that it is not lawful to for anyone to ‘start up their own private fire service and charge for their services and respond within the jurisdiction of’ the SACFS.
Interestingly there is no similar provision with respect to fire districts. Section 34 says ‘The Chief Officer may establish a fire brigade within any fire district’ but it does not say that anyone else may NOT establish a fire brigade.
It appears then that a person could establish a fire brigade within the jurisdiction of the SAMFS but that would not be without its difficulties. The Brigade would not automatically have the right to operate emergency vehicles (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54 ‘definition of emergency worker’). They would not have the right to take water for firefighting or exercise any of the other powers of a SAMFS officer (Fire and Emergency Services Act 2005 (SA) s 42), nor would they enjoy the protection from liability that applies to the SAMFS or SACFS (s 127). They would have to relinquish control to the SAMFS where that service attended any fire (s 41).
Further, although there is no equivalent to s 134 that applies within a fire district, there are other relevant offences. A person must not:
- falsely represent that he or she is a member of an emergency services organisation or other person with responsibilities under this Act (s 126(1)); or
- assume a name or description that consists of, or includes, official insignia (s 131(3); see also Emergency Management Act 2004 (SA) s 30).
A private fire brigade would need to take care in the design of any uniform, logo, insignia or decals that it could not be confused for the SAMFS or SACFS or give rise to an impression that they have responsibilities under the Act.
There is a prohibition on being a member of a private fire brigade in areas of South Australia that fall under the responsibility of the Country Fire Service (s 134). I suppose that means anyone could ‘start up their own private fire service’ but they could not have any members of the brigade.
There is no equivalent provisions for areas of the state that fall under the responsibility of the Metropolitan Fire Service but there are many provisions that could make it difficult if not impossible for such a brigade to operate. They would need to make it very clear that they are not part of the state’s emergency services structure or operating under the auspices of the Fire and Emergency Services Act 2005 (SA) unless they had the approval of SAFECOM.
For related discussions see:
- What is a NSW fire brigade? (August 27, 2014)
- Self help firefighting in Victoria (August 30, 2014)
- Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA
(November 28, 2014).
Michael , what if a semi coordinated group of private land holders in private vehicles responded to attack a bushfire as good samaritans to protect rural community as first responders prior to fire agencies. Then if requested by state resources to leave on arrival of CFS/ RFS IC, did so without objection?
That is raises what we lawyers call ‘a question of fact’. Section 134 says it is an offence ‘without the approval of the Commission or the Chief Officer of SACFS, be a member of a [a group of people equipped to deal with fires on behalf of a local community] … that is not an SACFS organisation’.
Everyone can try to deal with a fire on their property. On rural properties there is an obligation to try to contain a fire (Hargrave v Goldman (1966) 115 CLR 458) and to call the CFS (s 91) but that does not mean that people can try and deal with a fire pending their arrival. And people can ask their neighbours for help – putting out the fire is a good thing no matter who does it.
But, if the Director of Public Prosecutions (DPP) thinks a group is breaching s 134 then he or she could bring a prosecution. In court the DPP would need to prove, beyond reasonable doubt, that the ‘semi coordinated group of private land holders in private vehicles’ constituted a fire brigade. If I were the DPP I would look to see things that are indicative of a brigade – are their rules? How is the group established – is it an incorporated association? Are there uniforms? Badges of rank? Are vehicles decorated with logos (whether permanent or temporary)? What fires do they respond to – members of the group or any fire? How do they communicate to know about fires – is there some publicised local phone number that’s promoted in lieu of triple zero – ‘if there’s a fire in this area call …’? When they respond, do they also call the CFS?
The more it looks like a ‘brigade’ then the more the argument can be made. The more it looks like a group of farmers who provide a first response pending the arrival of the CFS (and given most them may also be members of the CFS) then the less likely it looks. Ultimately it is for a court to decide in those circumstances where the DPP decides to take action.
The law is not self-executing so it does not come into play as soon as someone is in breach; and the law does not set out rules that cover every situation. The rules are in general terms and we have courts to determine how the rules apply in the particular case.
The event fire companies that operate in south Australia
And charge a fee for service
An example is woman for wheels
How do they work in relate to section 134
The obvious answer is ‘I don’t know’. But I can make some guesses.
First s 134 defines a ‘fire brigade’ as ‘a group of people equipped to deal with fires on behalf of a local community’. Given a group like Women For Wheels (http://www.wfwmotorsport.com/) provides a very specialised service for a very specialised group those charged with managing the Fire and Emergency Services Act 2005 (SA) and/or the DPP may well think that is not a group dealing fires ‘on behalf of a local community’.
As noted in the post above, industries are entitled and required to have their own emergency services and equipment including firefighting equipment. Not every business can do it for themselves so there is an industry that contracts to business, in this case perhaps the Confederation of Australian Motor Sports (CAMS) or event organisers to provide the services they need and cannot provide themselves. SAFECOM and the DPP may well take the (not unreasonable) view that this typle of specialist service delivered on a contractual basis to a client is not dealing ‘with fires on behalf of a local community’ in the way a CFS brigade does.
To repeat what I’ve said before the law is not self executing. Maybe they are in breach of s 134 and no-one has noticed, or no-one cares. SAFECOM may not have given it any thought thinking that they are so far from what the CFS does it hasn’t crossed their mind that there may be a breach, or they may have and thought ‘…but so what?’ They do a great job that we couldn’t do and their not the sort of brigade we had in mind when s 134 was written so even if there is a breach we’re not concerned and won’t do anything about it.’
And of course, there is the possibility that they have a good relationship with SAFECOM and local brigades and whatever approvals they need, they have.
Such things do exist. Oil refinery’s for example have specialised Firefighting and Rescue personnel and equipment.
Sure such things do exist and a PCBU has obligations to ensure emergency procedures and staff. So even a large rural property may well have trained firefighters and firefighting equipment on its property. But that is not the same as a concerned landowners getting together to set up a fire brigade intending to replace, or perhaps compete, with the established service.