Today’s question comes from a ‘curious’ correspondent who is:
… a fraction concerned) about two ‘private’ rescue providers in Victoria. There’s Echuca Moama Search & Rescue and also one in Shepparton. They provide the primary road accident rescue response in those communities. They’re recognised in the State EM arrangements but what legislation do they exist under? What gives them their responsibility, powers and protections?
I have no idea whether my correspondent is, or is not, a member of either rescue squad.
What legislation do they exist under?
The website for the Shepparton rescue squad says:
(SS&RS) is a Shepparton based Volunteer Rescue Organisation and is one of only two independent rescue units in the State of Victoria recognised by the Victorian Government and operates within the state Emergency Management Manual of Victoria (EMMV) Document and Road Rescue Arrangements of Victoria…
SS&RS is an Incorporated Association under the Victorian Associations Incorporations Act 1981 …
Details of the registered association can be found on the public register maintained by Consumer Affairs Victoria. We know therefore that they ‘exist’ as a separate legal entity that can sue and be sued by virtue of, originally the Associations Incorporation Act 1981 (Vic), and now the Associations Incorporation Reform Act 2012 (Vic). The Echuca squad is also an incorporated association.
What gives them their responsibility?
We are told that the Shepparton squad operates within ‘the state Emergency Management Manual of Victoria (EMMV) Document and Road Rescue Arrangements of Victoria…’. Emergency Management Victoria says “Victoria is served by a network of 132 road crash rescue principal providers from the MFB, CFA and VICSES. There are also two independent providers at Echuca and Shepparton.”
Road Rescue Arrangements (2017)
The 2017 Road Rescue Arrangements say (at p. 9):
1c AUTHORISING ENVIRONMENT
The key aspect of the RCR system in Victoria is the coordination of multiple agencies with responsibilities for RCR services to provide the best possible care to, and safe extrication of, persons involved in road accident. The Emergency Management Act 2013 describes the functions of the Emergency Management Commissioner and is fundamental in delivering this coordinated multi-agency service delivery model.
Emergency Management Act 2013
Functions and powers of Emergency Management Commissioner:
s.32
(a) be responsible for the coordination of the activities of agencies having roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies;
(j) develop and maintain operational standards for the performance of emergency management functions by responder agencies;
(k) develop and maintain incident management operating procedures for responder agencies;
Independent Providers
The arrangements apply to the following approved independent providers of RCR services.
• Shepparton Search and Rescue Squad
• Echuca-Moama Search and Rescue Squad.
Emergency Management Manual Victoria
The Emergency Management Manual Victoria provides comprehensive guidance on the emergency management arrangements in Victoria. In respect of RCR services relevant sections are:
Part 3 – The State Emergency Response Plan
(files.em.vic.gov.au/EMV-web/EMMV-Part-3.pdf)Part 7 – Emergency Management Agency Roles –
(files.em.vic.gov.au/EMV-web/EMMV-Part-7.pdf)
Section 32(a) – agencies having roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies;
Allocation of roles and responsibilities to agencies is set out in the SEMP Roles and Responsibilities.
The Agency Role Statements document the roles and responsibilities each agency undertakes during mitigation, response (including relief) and recovery phases of emergency management.
Further:
Table 9 names the control agencies that lead response activities against a specific form of emergency. Control agencies are responsible for coordinating actions against a specific emergency and establishing management arrangements for an integrated response to the emergency.
Table 10 names the agencies that participate in a supporting role in response activities. Support agencies for response are the leads in a dedicated functional area. When a specific emergency falls in their functional area, they provide services, personnel, and materials to assist with control activities.
Table 9 identifies that the control agencies for road rescue are “CFA/FRV/VICSES”. The control agency for other road emergencies and for land rescue is Victoria Police (VicPol).
Neither rescue squad is mentioned in table 9, in Victoria’s Emergency Management Performance Standards (v 3, December 2019), the Emergency Management Team Arrangements (December 2014) or the Emergency Operations Handbook (4th ed, November 2021).
The only reference to the Shepparton Search & Rescue Squad Inc. in the Greater Shepparton Municipal Emergency Management Plan(v 10.3, October 2019) is where the Squad is listed as a member of the Municipal Emergency Management Planning Committee. Echuca Moama Search & Rescue are not mentioned in the Northern Victorian Integrated Emergency Management Plan: Campaspe Shire (Issue 2, November 2018). The squad is listed as a member of the Flood Emergency Planning Committee (Flood Emergency Plan for the Campaspe Municipal District(Issue 7:May 2018)).
It appears that neither rescue squad has been allocated ‘roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies’.
Section 32(j) and (k) – responder agencies
The term ‘responder agency’ (Emergency Management Act 2013 (Vic) s 3):
means the following—
(a) Fire Rescue Victoria;
(b) the Country Fire Authority;
(c) the Victoria State Emergency Service Authority;
(d) the Secretary to the Department of Environment, Land, Water and Planning;
(e) any other agency prescribed to be a responder agency;
The word ‘prescribed’ when used in legislation means “… prescribed by the Act in which the word is used or by a subordinate instrument made under or pursuant to that Act” (Interpretation of Legislation Act 1984 (Vic) s 38). Generally, that would mean prescribed by regulations made under the Act. The SEMP and other documents, we can also assume, meet the definition of ‘a subordinate instrument made under or pursuant to that Act’ (Emergency Management Act 2013 (Vic) s 60AD and Divisions 6 and 7).
There are no regulations prescribing either rescue squad as a responder agency. Both rescue squads re listed int table 10 under the collective reference to Volunteer Search and Rescue Organisations. In that capacity they are described as having a support role to VicPol which appears different to their principal role in Road Crash Rescue. Table 10 to the SEMP lists ‘responder agencies’ as ‘CFA, FRV, DELWP [and] VICSES’. It follows that neither rescue squad is a responder agency for the purposes of s 32(j) and/or (k).
Emergency Management Manual Victoria
Both parts 3 and 7 of the Emergency Management Manual Victoria have been repealed – see https://www.emv.vic.gov.au/policies/emmv
First conclusion
Neither the Shepparton or Echuca Rescue Squad is an agency with assigned ‘roles or responsibilities in relation to the response to Class 1 emergencies or Class 2 emergencies’, nor is either squad prescribed as a ‘responder agency’. It follows that the references to the Emergency Management Act 2013 (Vic) s 32(a), (j) and (k) and the reference to the Emergency Management Manual do not explain the legal authority of either rescue squad to operate nor their obligation to be bound by the procedures in the Road Crash Rescue Arrangements.
Independent providers
Notwithstanding that first conclusion, the Road Rescue Arrangements say that they do apply to these rescue squads as independent providers. It is that paragraph that binds them and it may be that that paragraph is there precisely because the references to the State Emergency Management Act s 32 do not cover the independent providers. The reference to the EM Act explains the Commissioner’s authority to bind the FRV, CFA and SES. They are required to comply because of the Commissioner’s powers under s 32 and due to provisions in their own legislation – Fire Rescue Victoria Act 1958 (Vic) s 7AC; Country Fire Authority Act 1958 (Vic) s 6D; Victoria State Emergency Service Act 2005 (Vic) s 4C. The independent squads are brought into the rescue community by the statement that they are bound by the Road Rescue Arrangements, rather than by legislation.
How does that work? If the rescue squads do not agree to, or do not comply with, the procedures and standards set out in the Arrangements then the Emergency Management Commissioner could withdraw their approval to operate (Road Rescue Arrangements, p. 22). If that happened the CFA or SES or FRV would be assigned the role of principal responder. The independent rescue squad would find itself with nothing to do even if it continued to exist. Without a specific statutory obligation, the statement ‘The arrangements apply…’ to the independent rescue squads implies that if they don’t comply, their role in Road Crash Rescue will be removed and it is that power – the power to revoke their authority to operate – that brings the independent squads into the Arrangements.
Second conclusion
The Road Rescue Arrangements bind the independent rescue squads because they are directed to comply. If they do not the Emergency Management Commissioner has the power to revoke their authority to operate. It follows that the responsibilities of the two independent rescue squads are found in Victoria’s Road Rescue Arrangements(2017).
Powers
Fire Rescue Victoria, the SES and the CFA all have legislation giving them specific powers to perform their statutory functions (see Fire Rescue Victoria Act 1958 (Vic) ss 32B and 56; Country Fire Authority Act 1958 (Vic) s 30; Victoria State Emergency Service Act 2005 (Vic) ss 32AB 32AC and 40). In the absence of legislation neither independent rescue squad has specific powers.
It follows that their powers must either be implied by the Road Rescue Arrangements, ie they must have the power to do those things they are required to do to comply with the arrangements, or they come from the common law (see The doctrine of necessity – Explained (January 31, 2017)). In Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40]), Gleeson CJ, Gummow, Kirby And Hayne JJ said:
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.
In Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228 it was said:
The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property.
And in New Zealand (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)):
A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.
If I see a person trapped in a car, I don’t need specific legal authority to go to their aid and neither do the rescue squads. Given they are unlikely to respond on their own, if there is a need to exercise special powers then police and fire brigades are likely to be on scene and can act under their legislation.
Third conclusion
The source of any necessary power for the rescue squads will be find as an implied power by virtue of their inclusion in the Road Rescue Arrangements or be amply supported by common law.
Protections
There are protections provided for the members of FRV, the SES and CFA (Fire Rescue Victoria Act 1958 (Vic) s 54A; Country Fire Authority Act 1958 (Vic) s 92; Victoria State Emergency Service Act 2005 (Vic) s 42). In the case of the SES and the CFA the legislation says that whilst no volunteer or service member is to be personally liable, any liability that would otherwise apply to them is to be borne by the relevant authority.
Members of the independent rescue squads might be considered volunteer emergency workers (Emergency Management Act 1986 (Vic) s 4). A volunteer emergency worker is:
a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency management plan applies;
The rescue squads are acting with the consent of the Emergency Management Commissioner. If that is the case, they get the benefit of s 37 of the 1986 Act which says:
A volunteer emergency worker is not personally liable in respect of any loss or injury sustained by any other person as a result of the engagement of the volunteer emergency worker in emergency activity unless the loss or injury is caused by the negligence or wilful default of that worker.
That is not very helpful. If there is no negligence or wilful default there is no liability anyway so it is unclear what this section adds.
For the members of the Shepparton and Echuca rescue squads, better ‘protection’ is found in the Wrongs Act 1958 (Vic) s 37 which says:
(1) A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.
(2) Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation.
That puts the volunteers in the same position as volunteers with the CFA and the SES. The volunteers are not liable but the organisation for which they volunteer may be. That of course depends on their being negligence. The legal risk is low but not non-existent, so one hopes the rescue squads have appropriate insurance or an offered indemnity from the state.
The problem for volunteers is if they are considered a volunteer emergency worker then they are not a volunteer for the purposes of the Wrongs Act (see s 35(f)). This is to stop volunteers getting ‘double protection’. It would be better for the volunteer rescue squad personnel not to be considered a volunteer emergency worker but where they sit might be an issue in the unlikely event anyone tried to sue a volunteer.
Conclusion
The Echuca Moama Search & Rescue and Shepparton Search and Rescue Squad ‘provide the primary road accident rescue response in those communities. They’re recognised in the State EM arrangements’. The questions I was asked were:
- what legislation do they exist under?
- What gives them their responsibility?
- Powers? and
- protections?
My answers are based solely on documents publicly available on the internet. There may be other relevant documents that I cannot access such as MOUs, directions or delegations between the EMC and the rescue squads, MOUs or other legal relationships between the squads and the councils. In the absence of any of those documents my answers are:
1. Both rescue squads exist ‘under’ the Associations Incorporation Reform Act 2012 (Vic) (formerly the Associations Incorporation Act 1981 (Vic)).
2. The Road Rescue Arrangements (2017).
3. Relevant powers may be implied to give effect to the Road Rescue Arrangements and by common law.
4. Protection may be provided to volunteers by the Emergency Management Act 1986 (Vic) s 37. Better protection is provided by the Wrongs Act 1958 (Vic) s 37. The squads themselves don’t have specific legal protection.
The fact that the question was asked, and answered, should not be considered as any criticism of these squads or their role in Victoria’s Road Rescue Arrangements. They provide an essential service to their community and there is no suggestion that any legal issues have arisen, or will arise, from their service. Their legal position might be clearer if they were listed, along with FRV, SES and CFA, as control agencies for road rescue and if they were prescribed as ‘responder agencies’ but probably little turns on that. The legal arrangements even if they are somewhat opaque do not appear to be a barrier to the provision of effective rescue services.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 