I received the following information from Mr Cording, the volunteer who was injured by a property owner and where the property owner has avoided all legal repercussions for his action (see Gaps in Queensland fire legislation exposed in failed prosecution (October 23, 2022)). Mr Cording has kindly given me ‘permission to use this material … to write a follow-up article’. This is that follow up article.
Mr Cording says:
I appreciate that you just had the ABC News report to work with, but I just wanted to clarify some of the details you commented on.
The details of the incident are that I observed a fire burning on Mr Barrett’s property during a total fire ban. I asked Mr Barrett to extinguish the fire, but he refused to do so. I reported the illegal fire to Triple Zero, who subsequently responded my brigade to attend. I returned to Mr Barrett’s property in the RFS appliance and met my First Officer and another crew member at the scene. Mr Barrett was refusing us access to his property and had blocked his driveway. QPS attendance was requested but we were advised that it would be significantly delayed. My First Officer and I attempted to enter the property to extinguish the fire. Mr Barrett lunged at me, pushing me off an embankment and onto the road. I sustained two fractured hips and multiple fractures to the pelvis.
Mr Barrett was initially charged with serious assault. The charge was withdrawn after the court accepted the defendant’s argument that rural fire brigade members are not public officers. This is due to the definition of a public officer including members of an organisation ‘established under an act’. Unlike Queensland Fire and Rescue Service or Queensland SES, which are explicitly established under the Fire and Emergency Services Act, Rural Fire Brigades are referred to as a group of people who have sought to be registered as a brigade.
The Criminal Code 1899 (Qld) s 340 is headed ‘serious assaults’. Section 340(2AA) says:
A person who—
(a) unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office…
commits a crime.
The section goes onto say (at s 340(3)):
“public officer” includes—
- a member, officer or employee of a service established for a public purpose under an Act
The Act gives the example of ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’.
It is an unhelpful definition. It says that the term ‘public officer’ includes the people listed in paragraphs (a) to (d). The fact that the definition says ‘includes’ not ‘means’ would imply that there are people who are not listed but who are also public officers. The definition does not attempt to exhaust all the possibilities of who is a public officer, but there is no guidance to determine who else is a public officer.
If we limit our consideration to s 340(3)(a) then we can see the point. The Fire and Emergency Services Act 1990 (Qld) does not ‘establish’ a rural fire service or rural fire brigades. Section 79 says ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’. We can compare that to s 8 which says ‘The Queensland Fire and Emergency Service (“QFES”) is established’. Given that Queensland Ambulance is listed as an example we can also look at the Ambulance Service Act 1991 (Qld) s 3A which says ‘The Queensland Ambulance Service is established’. There is no equivalent provision to establish either a Queensland Rural Fire Service or individual brigades.
On the other hand, the group of people who apply for registration are not a rural fire brigade unless their application is accepted so there could be an argument that the brigade is formed, as a brigade, when the Commissioner accepts the application for registration and issues a ‘registration number’ to the Brigade (s 79(2)). The process of registration and the definition of the brigades’ powers and functions – its ‘public purpose’ – are all set out in the Act. I do think, therefore, that there is an argument that members of the rural fire brigades are public officers, but I can understand why the police, or the Director of Public Prosecutions may have determined that, because it was not clear, it was not appropriate to bring that prosecution. It is certainly better for legislation to be clear rather than leave it to arguments and the interpretation of (ultimately) judges of the Supreme Court.
One of the reasons that Mr Barrett was not charged with common assault was that using reasonable force to remove a trespasser on your property is an accepted defence. The concern was that if it was shown that I had no authority to access the property and therefore trespassing, Mr Barrett would have had a valid defence and I could have been subsequently charged with trespassing.
The Criminal Code s 277(1) says
It is lawful for a person who is in peaceable possession of any land … to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land … or in order to remove therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.
Section 1 defines ‘grievous bodily harm’ as:
(a) the loss of a distinct part or an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available.
I would have thought that ‘two fractured hips and multiple fractures to the pelvis’ constituted grievous bodily harm because, if untreated, those injuries ‘would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health’.
If that is correct, then even if Mr Cording was guilty of trespass (Summary Offences Act 2005 (Qld) s 11) Mr Barrett may not have been able to successfully rely on the defence set out in s 277. Further, even if police thought that Mr Cording may have been guilty of trespass it does not follow that he would have been prosecuted (Law Enforcement (Powers and Responsibilities) Act 2000 (Qld) s 634).
We can see already that the law is not self-executing. It does not automatically apply but has to be interpreted and judgements made. Police or the DPP made certain decisions about the prosecution of Mr Barrett. The problem with that process is that it does not establish any legal principle. There is no ruling that a member of a rural fire service is not a public officer or that Mr Cording was guilty of trespass, or that Mr Barrett used reasonable force. These matters were resolved in the offices of the prosecuting authorities so there is no ‘precedent’. It is however cause for concern that the law is not sufficiently clear, and that any prosecution would have depended on legal argument that may have necessitated appeals and put everyone, including the defendant, to significant cost. A defendant has to have the benefit of the doubt so whilst it is confronting, and whilst there may have been arguments about the definition of a public officer and/or the applicability of s 277, one can see why a prosecutor may have – rightly – elected not to proceed.
That then brings us to the offence he was charged with, obstructing an ‘authorised person’. Mr Cording continues:
Mr Barrett was subsequently charged with obstruction of persons performing functions.
The Magistrate consider two aspects of the charge in her decision.
Firstly, the Magistrate considered the requirement to warn an offender that they are being obstructive to be a necessary element of the offence. This is in line with similar obstruction offences involving police and gas industry workers. The Magistrate cited several cases where it was established that the warning is an essential check and balance on the authority to violate someone’s personal rights. There was no evidence that such a warning was given – which isn’t surprising as it is not included in any of our training. This was the primary reason for her to dismiss the charge.
It is indeed necessary to give a warning. The Fire and Emergency Services Act 1990 (Qld) s 150C(2) says:
If a person has obstructed an authorised person and the authorised person decides to proceed with the performance of the function, the authorised person must warn the person that—
(a) it is an offence to obstruct the authorised person unless the person has a reasonable excuse; and
(b) the authorised person considers the person’s conduct to be an obstruction.
In the absence of that warning the person could not be guilty of the offence under s 150C(1).
The second aspect was whether I was an ‘authorized person’ performing an action under the Act. The Magistrate was very clear that a person could not receive an authority under the law simply by volunteering. The only ways that I could be considered an ‘authorized person’ is if I was an Authorized Fire Officer (which I’m not) or was acting on the specific direction of an Authorized Fire Officer (or someone with similar powers like a First Officer in charge of an incident in their brigade’s area). QFES’s legal representative didn’t or couldn’t provide any evidence to prove this. There was no evidence that a specific direction was given by the First Officer. There was no evidence that the First Officer had been properly appointed by QFES under the Act. There wasn’t even any evidence that the Brigade had been properly registered by QFES.
Basically there was no evidence to establish a chain of authority from the Commissioner to me. The lack of a specific direction by the First Officer was highlighted by the Magistrate as a critical element.
When I read the ABC article that was the basis of my first post, I assumed that the first officer was not there. Mr Cording says they were. The first officer has the powers of an authorised fire officer (s 53) but only if they are in their area of responsibility as defined by the Commissioner and notified to the brigade (ss 82(2) and 83(1)). Whilst I can understand that a prosecutor may not realise that this would be an issue, if put to their proof they would indeed need to prove that the brigade was registered (s 79) that the person at the scene was indeed the first officer (s 81) and that the Brigade was operating within its defined area of responsibility (s 82(2)). All of those are necessary pre-conditions for the exercise of the powers of the first officer under s 83.
One other aspect that was raised by the defendant but not considered by the Magistrate was the question of what constituted a ‘dangerous situation’. Authorised Fire Officers (and First Officers) can only use their powers in dangerous situations under Section 53 of the Act. The Act doesn’t define what constitutes a dangerous situation, but it does say that an authorised fire officer can take any reasonable measures to protect persons, property or the environment from danger or potential danger caused by fire. The defendant argued that as there was no life or property at risk, this was not a dangerous situation.
Given this was not considered by the Magistrate we don’t have any legal precedent. Section 53(1) says
(1) 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.
On a day of total fire ban I would suggest that whether the fire at that time posed a danger is not the relevant test. The test is the need to protect persons, property or the environment from ‘potential’ danger. A fire brigade can’t be expected to wait until a prohibited fire is out of control before taking action.
I cannot see how that argument would have worked, but given I’m surprised that other arguments were accepted at least by the prosecution, I don’t suppose my ‘surprise’ counts as much.
With regards to my comments that “the case showed RFS volunteers did not hold the same legal protections as paid firefighters or police officers when on duty” the context is that all paid firefighters are Authorised Fire Officers and therefore the chain of authority is easily established. For a volunteer to be protected under the Act, they must be acting on the specific direction of their First Officer in their brigade’s area or an Authorised Fire Office.
It is not axiomatic that all paid firefighters are authorised fire officers. The Act does not say that. The Act says (s 52) that ‘The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer …’. If all ‘fire officers’ were authorised fire officers that section would not be necessary. It may be the case that the Commissioner has authorised all fire officers but that would need to be proved in the same way the first officer’s appointment may need to be proved. The mere fact that a person is a fire officer (ie ‘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’) does not mean they are an authorised fire officer.
As for “It’s just been shown we have no authority to do anything. We can’t assume we have any authority.”, this was in the context of ordinary volunteers. The best example is the authority to draw water from any source – without a specific direction from a First Officer or Authorised Fire Officer, this would technically be stealing. Similar issues surround entering into council land or clearing fire breaks. To see why this is such an issue, understand that only one First Officer is in charge at a moderately sized bushfire. and can be responsible for 50 or more firefighters. The requirement to provide specific directions to each and every firefighter would be impractical in practice.
I don’t agree that a person has to be acting under a specific direction of a first officer. If a first officer is the incident controller, he or she may establish the incident action plan and direct other firefighters to do various things. I would suggest that would be sufficient direction without having to get into the specifics of how they must perform their function. For example, “I want you to put in a fire break here” but that doesn’t require directions about clearing vegetation, access to the site etc; but again that is something that would need to be tested.
There are a number of lessons here. The first, as I’ve noted, is that the law is not self-executing. It takes decisions and discretionary judgments by police, prosecutors and magistrates. It may be that if the prosecutors had decided to proceed with charges of serious assault it may have been determined that Mr Cording was a public officer. If they had proceeded with a charge of common assault, it may have been determined that the defence in s 277 could not have been applied. We don’t know. Not every guilty person gets charged, not every guilty person gets convicted and that is true for many reasons not just a defect in the law. We simply don’t know whether the law is insufficient other than if the police or DPP felt sufficiently uncertain then that is evidence that the law in inadequate.
The discussion does suggest that an amendment to the term ‘public officer’ or an amendment of the Fire and Emergency Services Act to say that brigades are established by the Commissioner, under the Act, would be useful. In my opinion the model that says fire brigades are formed when a group of community minded citizens come together to form a brigade is old fashioned and out of touch with the demands of modern firefighting and particularly in a world of increasing fire risk and increased demands on fire services to respond to all emergencies. It’s a model that’s been abandoned in all states other than Queensland and Victoria (see Emergencies Act 2004 (ACT) s 54 ‘The chief officer (rural fire service) may establish rural fire brigades for the rural fire service’; Rural Fires Act 1997 (NSW) s 15 ‘A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area’ (and for all practicable purposes, the ‘local authority’ is the Commissioner); Bushfires Management Act 2016 (NT) s 54 ‘The Minister may, by Gazette notice, establish a volunteer bushfire brigade, with the name specified in the notice, for an area within a fire protection zone’; Fire and Emergency Services Act 2005 (SA) s 68 ‘The Chief Officer may, by notice in the Gazette— (a) establish an SACFS brigade’; Fire Service Act 1979 (Tas) s 26 ‘The Commission may establish brigades’; Bush Fires Act 1954 (WA) s 36 ‘A local government may … (d) establish and maintain bush fire brigades as a part of its organisation for the prevention, control, and extinguishment of bush fires’).
The next lesson is, as noted in my first post, that there is no clarity as to who is an ‘authorised person’ within the Fire and Emergency Services Act. I stand by my original conclusion that the omission of a definition of ‘authorised person’ is a significant defect in that Act.
Finally remember that a magistrate’s decision does not constitute a binding precedent – see Accessing a judge or magistrate’s reasons for decision (November 18, 2016). In the absence of published reasons (and the reasons in this case do not appear on either AustLII or the official list of published Queensland Magistrate Court’s decisionsthe case cannot be relied on in future – but that will not diminish the concern of volunteers or the need to clarify the standing of brigades and volunteers.
The status of Queensland Rural Fire Brigades has been a matter of regular comment on this blog – see Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018). This case does appear to highlight, better than any abstract argument, that the status of the brigades is unclear. I note that The Malone Review into Rural Fire Services in Queensland (2013, p. 19) recommended:
That an operational organisation be established comprising of three autonomous units – a. urban fire service; b. rural fire service; and c. the state emergency service. Each of the three units will be led by a Deputy Chief Officer, each reporting to a single Chief Officer.
In Western Australia the Report of the Special Inquiry in the January 2016 Waroona Fire (Euan Ferguson, 2016, recommendation 15) recommended
The State Government to create a Rural Fire Service to enhance the capability for rural fire management and bushfire risk management at a State, regional and local level. The proposed Rural Fire Service will:
- be established as a separate entity from the Department of Fire and Emergency Services or, alternatively, be established as a sub-department of the Department of Fire and Emergency Services;…
A similar response in Queensland may go a long way to confirming the powers of firefighters and resolving some of the issues that are raised, but not resolved, by this recent failed prosecution.
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.
Interesting that they (the police) didn’t consider an additional charge for not complying with a total fire ban….. You would have thought that would be an adequate back up charge.
Yes, no explanation for that.
Mr Barrett was fined by QFES for lighting an illegal fire.