I have had a couple of people send me links to this article and ask for comments – Dominic Cansdale ‘Property owner found not guilty of obstructing volunteer firefighter, as RFS legal status questioned’ ABC Gold Coast 22 October 2022.

The gist of the story is:

Ashley James Barrett, 51, appeared in Southport Magistrates Court on Friday, charged with the obstruction of persons performing functions under the Fire and Emergency Services Act.

It was alleged that while conducting a prohibited burn-off at his Gold Coast hinterland property during a total fire ban on December 7, 2020, Mr Barrett prevented a RFS volunteer from entering the property to extinguish the small blaze….

Magistrate Jane Bentley said no evidence was presented to the court that Mr Cording, as the second officer of the volunteer brigade, was authorised under the Fire and Emergency Services Act to enter the property without Mr Barrett’s consent.

His defence solicitor Denis Hawes said unlike their counterparts in the Queensland Fire and Emergency Services, RFS volunteers were not employed under the act and did not carry the same legal status, meaning Mr Cording had no authority to enter Mr Barrett’s property.

Under the act, the QFES commissioner must notify a RFS Brigade about what area they are responsible for and under what circumstances volunteers can prevent and fight fires.

But Ms Bentley said no evidence had been presented to the court that such notification had been provided by the commissioner to Mr Cording, or his brigade’s first officer.

Fire and Emergency Services Act 1990 (Qld) s 150C

The Fire and Emergency Services Act 1990 (Qld) s 150C says:

Obstruction of persons performing functions

150C OBSTRUCTION OF PERSONS PERFORMING FUNCTIONS

(1) A person must not obstruct another person (an “authorised person”) in the performance of a function under this Act unless the person has a reasonable excuse.

Penalty—

Maximum penalty—100 penalty units or 6 months imprisonment.

A penalty unit is $143.75 (Penalties and Sentences Regulation 2015 (Qld) r 3; effective 1 July 2022). The maximum penalty is therefore $14,375.00 or 6-months imprisonment

Authorised person

The immediate problem is that the term ‘authorised person’ is not defined. The Act provides for authorised fire officers (s 52) and authorised rescue officers (s 148).  One might infer that the term ‘authorised person’ means either an authorised rescue officer or an authorised fire officer, but the Act does not actually say that.

Another interpretation would be that anyone who has a ‘function’ under the Act is an authorised person. That would be consistent with s 54 that refers to a person authorised to dispose of property that has been retained for safe keeping and s 152C that refers to a person authorised to inspect the records of local governments and building certifiers. If they are ‘authorised persons’ for the sake of s 150C then obstructing them is also an offence.  

There is a note to s 150C of the Fire and Emergency Services Act that says “The content of this section was previously included in section 147(a) and the Disaster Management Act 2003, section 115″. The Disaster Management Act 2003 (Qld) s 115 still provides that it is an offence to obstruct an “authorised person” but, unlike the Fire and Emergency Services Act, the Disaster Management Act defines who is an ‘authorised person’ for the purposes of that Act (s 113).

Section 147(a) said, before it was repealed and replaced with s 150C:

A person commits an offence against this Act if the person does or, as the case may be, fails to do any of the following acts—

(a) abuses or threatens or wilfully obstructs a person in the exercise of a power or the discharge of a function under this Act…

That section intended to cover anyone who had a power or function under the Act, not just fire and rescue officers so it would be consistent with that history to read the current s 150C as applying broadly- to anyone with a function or power under the Act.

It does appear that then the Act was amended with the passage of the Public Safety Business Agency Act 2014 (Qld) (see Passage of the Public Safety Business Agency Bill 2014 (Qld) (May 8, 2014)) s 115 of the Disaster Management Act was copied into the Fire and Emergency Services Act but no-one thought to add a definition of ‘authorised person’.

Authorised fire officer

Let us, for the sake of the argument, assume that the term ‘authorised person’ includes an authorised fire officer.  Section 52 says:

(1) The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer specified by the commissioner to exercise—

(a) all the powers conferred by this Act on an authorised fire officer; or

(b) any power or class of power conferred by this Act on an authorised fire officer.

(2) A reference in this Act to an authorised fire officer is a reference to—

(a) the commissioner; and

(b) a fire officer authorised by the commissioner pursuant to this section.

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’ (Schedule 6, definition of ‘fire officer’). It follows that a volunteer cannot be authorised under s 52.

Section 83 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; …

(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.

Section 82(2) says:

The commissioner must notify a rural fire brigade of the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention.

The powers of an authorised fire officer are set out in s 53.

An authorised fire officer may take any reasonable measure—

(a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency; or

(b) to protect persons trapped in any premises or otherwise endangered.

Specifically, they have the traditional powers to close roads, enter premises, shore up buildings etc (s 53(2)).

The burden of proof

In Woolmington v DPP [1935] AC 462 Viscount Sankey said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner … the prosecution has not made out the case and the prisoner is entitled to an acquittal. 

One of the essential elements of the offence under s 150C is that the person who was obstructed was an ‘authorised person’. If the prosecution could not, or did not, prove that the person was an ‘authorised person’ then the accused is entitled to that acquittal.

Application – the first argument

The first officer of a rural fire brigade is not an employee so cannot be an authorised fire officer under s 52. A first officer of a rural fire brigade, operating within their area of operations as notified under s 82, may exercise the powers of an authorised officer. It could be argued that by the combination of ss 82 and 83, the first officer is an authorised fire officer. If that is correct (and let us assume, for the sake of the argument it is) then the first officer or if ‘the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available’ is an authorised fire officer. If an ‘authorised person’ includes an authorised fire officer then they are also an ‘authorised person’.

Application – the second argument

The alternative argument is that an ‘authorised person’ is not the same as an authorised fire officer or authorised rescue officer. Given the terms of s 150C(1), an authorised person may be any person with a prescribed function, or power, under the Act.   A first officer has powers under the Act, but only where ‘pursuant to notification given under section 82(2), [their] rural fire brigade is in charge of operations for controlling and extinguishing a fire’ (s 83). In those circumstances, if he or she is trying to exercise those powers, and is obstructed, that may be sufficient. But even if that is true then the prosecution would still have to lead evidence that the first officer was operating within the Brigade’s area of operations (s 82).

So why was Mr Barrett acquitted?

According to the news story, the case was dismissed because the Prosecution failed to lead evidence that the Commissioner had given a direction under s 82. To prove its case, the Crown needed to have the notice under s 82(2) identifying the brigade’s area of operations. There would then need to be legal argument that the effect of ss 82 and 83 was to not only give the first officer the powers of an authorised officer (s 53) but that it meant that the first officer was an authorised fire officer, or that ‘authorised person’ means any person with a power under the Act and the first officer was such a person.  

In either case, because Mr Cording was the brigade second officer, the Crown would then need to prove that the first officer was ‘unavailable to act’ and that Mr Cording was ‘the next senior officer of the brigade who [was] available’.

Discussion

That is a very complex set of arguments, and it is in fact not surprising that this case had the result it did.  As the lawyer for the defendant is reported to have said “… authorised fire officers had “substantial powers to interfere with a person’s privacy and property”’ so it needs to be clear who is an authorised under the Act.

It would certainly be better if the Act defined the term ‘authorised person’ and provided that the first officer of a rural fire brigade is an authorised person.  Alternatively if ‘authorised person’ is understood to mean either an authorised fire officer or an authorised rescue officer then s 150C should say that, and s 52 should be amended to allow the Commissioner to appoint both employed and volunteer fire fighters as an authorised fire officer. The Commissioner should then appoint at least all rural fire brigade first officers, as a class, as authorised fire officers.  It may be better to appoint all officers of rural brigades (s 81) as ‘authorised fire officer’ but that may be a matter for discussion between the Commissioner and the Brigades.

What the case did not show

In the article Mr Cording is quoted as saying

…the case showed RFS volunteers did not hold the same legal protections as paid firefighters or police officers when on duty….

“It’s just been shown we have no authority to do anything. We can’t assume we have any authority.

It did not show that. In this case (if the media report is accurate) the judge did not have to decide whether or not a duly authorised first officer, and those acting under his or her direction, could exercise the powers listed in s 53. Nor did the judge have to decide whether, or not, a duly authorised first officer was a protected person for the purposes of s 150C. In this case the judge had to decide whether the prosecution had proved that the person obstructed by the accused was a duly authorised person. The Crown did not prove that the Commissioner had notified the ‘rural fire brigade of the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention’. What the case demonstrated was that the Crown has to prove its case.

Notwithstanding that the analysis of the case has identified some gaps in the legislation that should be addressed to remove potential future arguments.

Recommendations

The Fire and Emergency Services Act 1990 (Qld) should be amended to either:

  • include a definition of ‘authorised person’ or
  • amend s 150C to refer to ‘an authorised fire officer or an authorised rescue officer’. 

Further,

  • the definition ‘fire officer’ should be amended to say that a fire officer can be either an employee or a volunteer, or
  • s 52 should be amended to say the Commissioner can appoint either an employee or a volunteer as an authorised fire officer or
  • s 83(1) should be amended to say

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 is, for that purpose—

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

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 Association and 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.