Today’s question relates to inconsistencies between an NSW RFS brigade constitution and an RFS Service Standard.
Each NSW RFS brigade has a constitution that is in the terms set out in Service Standard 2.1.2 (with an effective date of 21 December 2017). Relevantly the standard constitution says at [7.16]:
Every ordinary member is entitled to vote in the election of field officers unless the Brigade has made a brigade rule establishing specific criteria for entitlement to vote in the election of field officers.
Apart from regular RFS brigades, the RFS operates community fire units. These are governed by Service Standard 2.13 NSW Rural Fire Service Community Fire Units (with an effective date of 27 August 2011). That standard says (at [2.3]):
At the completion of the probationary period CFU members are ordinary members however, due to the nature and role of CFU’s, as CFU members they:
(a) do no regularly participate in Brigade activities;
(b) are not available to attend fire calls, and
(c) are not entitled to vote in the election of field officers
The inconsistency if obvious. If members of a CFU are ‘ordinary members’ of the RFS they are, by virtue of the standard brigade constitution, ‘entitled to vote in the election of field officers’ whilst, at the same time, by virtue of service standard 2.13 they are ‘are not entitled to vote in the election of field officers’.
There are two rules of statutory interpretation that could be applied to interpret these legislative like instruments. The first is that where there is a later inconsistent document one might infer that it was intended to amend the first document to the extent of the inconsistency. On that view the later Constitution which gives ordinary members the power to vote may be inferred to repeal the earlier service standard on members of a CFU.
The other, alternative approach, is that the specific service standard applies in preference to the more generic brigade constitution document (see Lex specialis).
The Commissioner is for all intents and purposes the relevant authority responsible for creating, managing and disbanding brigades (ss 15, 17, 20; Rural Fires Regulation 2013 (NSW) r 4; Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades and Service Standard 2.1.2 Brigade Constitution). The critical issue is therefore what does the Commissioner intend.
My reading of the provisions is that it is intended that the specific continues to apply so ‘ordinary members’ (other than members of a CFU) may vote for the election of field officers.
The specific questions I was asked are:
- Can a Service Standard, not referenced in the Constitution, limit the rights of members as set out in that Constitution?
The two documents have to be interpreted to give effect to the Commissioner’s intention. There are rules that suggest that the CFU Service Standard either does or does not continue in the presence of the Brigade Constitution. That means the short answer is ‘yes, a Service Standard, not referenced in the Constitution, can limit the rights of members as set out in that Constitution’ but whether this particular service standard does, or does not, is open to interpretation. My view is that the accepted interpretation would be to confirm that CFU members cannot vote for the election of field officers but that is not certain.
- Does the date of issue of these documents bear in that decision (ie the Constitution was issued after the Service Standard)?
That would be one argument; that the later Constitution amends the Service Standard to the extent of the inconsistency but whether that would be accepted as the correct expression of the Commissioner’s intention is open to debate.
- Does the Rural Fires Act which specifically refers to the appointment of Officers override the votes cast for that appointment?
Absolutely. Members can vote for someone to appointed as a field officer, but the Commissioner is not bound to accept that vote. For example, Service Standard 6.1.2 Qualifications for NSW RFS Members sets out qualifications required for field officers. It is not referenced in the Constitution (it is referred to in the Service Standard, but not the Constitution itself) and limits who may be elected to office.
There is an inconsistency and I suppose a disgruntled CFU member could seek a declaration that he or she is improperly excluded from voting for a field officer in their brigade, but I doubt the Supreme Court would entertain such an application. Even if it did, I think the appropriate rule is that the specific document about CFUs and their membership continues to apply rather than the more general brigade Constitution. Ultimately that issue would have to be resolved by the Commissioner and then, as a final resort, the NSW Supreme Court (or perhaps the NSW Civil and Administrative Tribunal).