Today I’m asked:

In Victoria, does the Country Fire Authority and/or Fire Rescue Victoria  have the legal right to take and use a privately owned fire appliance during a fire event?

I have previously written about private fire appliances in Victoria, see:

The CFA clearly endorses the use of private fire appliances but that does not give them the power to ‘take and use’ them.   There is no general power to commandeer private assets for use in an emergency save that, during a declared state of disaster, the Minster may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (Emergency Management Act 1986 (Vic) s 24(2)(c), and see Commandeering private assets in an emergency (August 10, 2018)).

The Chief Officer of the CFA (or his or her delegate) may ‘take such other measures as appear necessary for the protection of life and property’ (Country Fire Authority Act 1958 (Vic) s 30(i)).  The senior member of the Fire and Rescue Victoria operational staff also has the power to ‘take such other measures as appear necessary for the protection of life and property’ (s 32(3)(e)).  This power could, arguably, extend to taking control of a private asset to be deployed in the response to the fire if, for example, the private appliance was the only resource available that could be used to rescue people from imminent death due to fire.

In Burmah Oil v Lord Advocate [1965] AC 75, dealing with the destruction of private assets to help defeat the enemy in WWII the House of Lords held that the Crown had the power to commandeer private assets for the public good but that decision comes with an obligation compensate the property owner.   Lord Reid said ‘there is nothing novel in the idea that a prerogative right to take property carries with it an obligation to pay compensation’.  Viscount Radcliffe said:

The sovereign power in a state has the power of eminent domain over the property of subjects, but may exercise its power only for the public welfare or advantage or in case of necessity… The power covers use, acquisition and destruction. If it is exercised, compensation to the person dispossessed is “manifest equity” … since it is not fair that one citizen should be required against his will to make a disproportionate sacrifice to the common wealth.

Whether the prerogative to take control of assets in time of war would extend to assets in the face of a fire would be arguable but one can imagine some fires and some circumstances where the nature of the emergency and the need to commandeer all assets would be comparable.   There would also be arguments about whether the prerogative power can continue to exist. Modern statutes, discussed in the post Commandeering private assets in an emergency (August 10, 2018)), set out various powers and when they can be exercised. Given the legislatures have set out some cases when assets can be taken as part of a response to a disaster it could be argued that all other common law powers have been extinguished.  Subject to those debates if there is a common law power to take control of private assets for the public good, it comes with an obligation to pay compensation for those assets.

Conclusion

There is no clear or express statutory authority that would allow either the Country Fire Authority or Fire Rescue Victoria to take and use a privately owned fire appliance during a fire event, but such a power might be implied by their general authority to take ‘such other measures as appear necessary for the protection of life and property’.

There is a common law power to take possession of private assets for the common good.  Whether that power still exists would be debatable but where it does it came with an obligation to compensate the property owner for their losses.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.