Today’s correspondent asks:

Considering the changes to the Work Health & Safety Act 2011 in late 2023 should the NSW RFS consider a broad review of all RFS Service Standards and Operational Policy?

The introduction of sections 244A – 244D in the WHS Act which allow for aggregation of conduct for body corporate PCBUs is of particular interest to me and how it may apply to the conduct of the NSW RFS senior executive team. For instance:

1. It is widely known that members of the NSW RFS attend incidents in some areas of the state with little or no PPE/PPC.
2. It is also widely known that members of the NSW RFS attend incidents with little to no training e.g., Bush Firefighter (BF) or Crew Leader Supervision/ Wildfire (CLS/CLW).
3. The Prescribed Burning Operational Protocols (June 2023) reads…

“For all prescribed burns undertaken using the Level One Simple (and Two Complex) Prescribed Burn Plan, the BIC should be accredited in this competency Conduct Complex Prescribed Burn or is authorised in writing by the FCO to conduct the burn in accordance with this protocol”.

4. Service Standard 2.1.4 Appointment of Field and Group-Officers has a clause that reads…

“The District Manager may, after consultation with the SLT in the district, set other reasonable additional criteria to be satisfied by those nominating for Field Officer positions in that district”.

For examples 1 and 2, if a ]member is seriously injured or killed whilst in attendance at an RFS incident it could be contended that the sections ‘244B State of mind’ and ‘244D Failure to take reasonable precautions’ is applicable as the body corporate’s board of directors could be considered to be complicit as they have knowingly or recklessly allowed the above to occur without implementing corrective actions to limit or prevent the occurrence of members with insufficient training and/or PPE/C from attending an incident. 

For examples 3 and 4, if a captain is authorised by the District Manager (FCO) to undertake a HR burn with the captain holding neither the minimum qualifications stipulated to hold their rank nor the required qualifications to supervise a HR burn. This hypothetical burn escapes leading to property loss and serious injury to several individuals (both the RFS and public).  It could also be contended that both sections ‘244B State of mind’ and ‘244D Failure to take reasonable precautions’ are applicable with the body corporate’s board of directors knowingly and intentionally allowing for the watering down of prerequisite qualifications in order to achieve a desired goal or object at the expense of having a suitably qualified person in control of an incident or HR burn.

What offences (and penalties) could the body corporate’s board of directors and RFS be considered to have breached face it if the above two examples where the NSW RFS to be found as being negligent in court?

Legal personhood

Only a legal person can sue and be sued or own property or otherwise have standing in the courts.  A legal person is a natural person (you or I), a corporate entity or the Crown ie the body politic that makes up the states and the Commonwealth (see for example, Hartford Davis, S. H. (2019). The Legal Personality of the Commonwealth of Australia. Federal Law Review, 47(1), 3-30. https://doi.org/10.1177/0067205X18816236).

When we think of corporations, we tend to think of commercial trading companies registered under the Corporations Act 2001 (Cth). There are also smaller, non commercial corporations such as the local football club or other association formed under the Associations Incorporation legislation in each state and territory.  A corporate entity is separate from its shareholders or members.  It can sue and be sued in its own right. It can be guilty of a crime.  Criminal law usually requires a relevant state of mind, eg to be guilty of involuntary manslaughter the defendant has to intend to kill but in circumstances of gross negligence or an unlawful and dangerous act. How would one attribute that state of mind to a corporation that is governed by directors?  The point of ss 244A to 244D of the Work Health and Safety Act 2011 (NSW) is to explain when a corporate entity will be deemed to have the state of mind necessary to be guilty of a crime. 

Section 244B says that if the board of directors, or an authorised person

(i) intentionally, knowingly or recklessly engaged in the relevant conduct, or

(ii) expressly, tacitly or impliedly authorised or permitted the carrying out of the conduct

Then the legal entity that is the corporation is deemed to have had the relevant state of mind of intention, knowledge or recklessness and the corporation can be guilty of any relevant offence.   For example to prove a category 1 offence under s 31 of the WHS Act, the Crown has to prove that the defendant

(i) engage[d] in the conduct with gross negligence, or

(ii) [was] reckless as to the risk to an individual of death or serious injury or illness.

If the defendant was a corporation, the Crown would seek to prove that the board of directors or an authorised person was grossly negligent or reckless and then the Corporation could be prosecuted.

The RFS is not a legal person

The problem is that the RFS is not a corporation. It is not a legal entity that can be sue or be sued. It is not governed by a board of directors. The RFS is created by the Rural Fires Act 1997 (NSW). It is made up of the Commissioner and other staff and the volunteer fire fighters (s 8(2)). The Commissioner, and not a board of directors, ‘is responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.’  The Commissioner is a senior public servant. The Office of the NSW Rural Fire Service is an executive agency of the Crown in Right of NSW headed by the Commissioner within the Department of Communities and Justice.  The Commissioner’s effective employer is the Minister administering the Rural Fires Act 1997 (Government Sector Employment Act 2013 (NSW) Schedule 1).  The Rural Fire Service does not have a separate entity, assets own by the RFS are owned by the Crown. The appropriate defendant if anyone wants to sue the RFS is the ‘State of NSW’ (Crown Proceedings Act 1988 (NSW) s 5).

The WHS Act applies to the Crown

What follows is that ‘sections 244A – 244D in the WHS Act’ have no direct application to the RFS. The RFS is not a corporation.

What is applicable to the RFS is sections 245 to 248 dealing with the liability of the Crown under the Work Health and Safety Act. Relevantly s 245(2) and (3) say:

(2)        For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.

(3)        If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness.

What that means is that if the Commissioner, or a District Manager or if it could be argued that a volunteer was an ‘agent’ of the Crown, a volunteer, acting within the actual or apparent scope of his or her authority engages in conduct that breaches the WHS Act then it is the Crown that can be prosecuted.  And the Crown is prosecuted. In the context of the emergency services the stand out cases are the prosecution of NSW Fire Brigades (as it then was) over the death of three civilians at a silo fire and the recent prosecution of NSW Ambulance over its management of drugs and paramedics at risk of abusing drugs (see Inspector Mayo-Ramsay (Workcover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW  Fire  Brigades) [2006] NSWIRComm 356 and SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134). In both cases the defendant was the Crown.

For all the examples given, if the relevant state of mind can be shown then the Crown in Right of NSW could be prosecuted for breaching the WHS Act. However, it has to be remembered that just because members attend incidents with little to no training (eg perhaps they are there as part of their training and are being supervising and monitored) or an FCO authorised a person in writing to undertake a burn, even if not formally accredited but recognising their prior knowledge doesn’t mean there has been a breach of the Act.  There are obligations upon a PCBU to ensure workers are trained and have necessary PPE but without more it’s not possible to say anything described would, or would not be a breach. What we can say is that if there is a breach, the appropriate defendant would be the State of NSW.  That’s always been the case.

Conclusion

Sections 244 to 244D were added to the Act in 2023.  Section 245 has been in the Act since it was first passed in 2011. There is nothing new here.

The RFS is not a corporation.  It is part of the government – the State of NSW. The presence of the new sections 244-244D have no implication for the RFS. For the RFS the law has not changed, where there is a breach of the WHS by ‘an employee, agent or officer’ of the RFS then the RFS may be prosecuted for that breach.

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.