I have been asked whether I ‘know of any laws Victoria dealing with the theft, removal or damage to AEDs, or only if/when the installation of AEDs are legally required at specific locations (eg: schools, gyms, recreational facilities etc)’?  In the course of posing that question my correspondent drew my attention to the Automated External Defibrillators (Public Access) Bill 2024 (NSW).

There have been three Bills with that name introduced in NSW in 2024. The first was introduced on 21 March 2024 and lapsed on 20 April 2024. The second was introduced on 6 June 2024 and lapsed on 8 November 2024. The third was introduced on 21 November 2024 and will lapse, if not passed on, 13 May 2025.

The current (third) Bill as tabled in Parliament has the words ‘This PUBLIC BILL, originated in the LEGISLATIVE ASSEMBLY and, having this day passed, is now ready for presentation to the LEGISLATIVE COUNCIL for its concurrence’ printed on it.  It also has the words ‘The LEGISLATIVE COUNCIL has this day agreed to this Bill with/without amendment’. Clearly these are form words to be signed off if those things happen.  They are not evidence that the Bill has been passed.  The Parliamentary webpage for the Bill says the Bill was introduced by Gareth Ward MP, the Member for Kiama on 21 November. After a second reading on that date the matter was adjourned. There is no indication if or when it will come back for further second reading debate or a third reading, before heading the Legislative Council.  There is therefore a long way to go before this Bill becomes law.

If the NSW Bill becomes law, it will require the person responsible for a relevant building or a relevant vehicle to ensure that an AED has been installed (s 7(1)).  They person responsible will also be required to ensure that the AED is maintained and subject to annual testing.  The proposed definition of a relevant building is (s 4):

(a) a large commercial building,

(b) a government building,

(c) an educational establishment,

(d) a correctional centre,

(e) a retirement village within the meaning of the Retirement Villages Act 1999,

(f) a facility that provides residential care within the meaning of the Aged Care Act 1997 of the Commonwealth,

(g) an entertainment facility,

(h) a recreation facility (major),

(i) for a caravan park—a building that is part of the caravan park,

(j) a casino or other venue where gambling is authorised, other than a venue where the only gambling authorised is the selling and buying of lottery tickets.

A relevant vehicle will be:

(a) an emergency services vehicle [and]

(b) a public passenger vehicle.

There must be signs indicating the presence of the AED (s 7(2)) and the location of the defibrillator must be reported to the Minister (s 8) who must keep a register of the location of AEDs and publish that information on a website (s 10).  The Minister must also develop an awareness strategy on the need to register and sign-post AEDs and on ‘the fact that, while training in the use of defibrillators is available, a person does not need to be trained to use a defibrillator’ (s 11). The Minister must make sure training in the use of AEDs ‘is made available to a person or class of persons prescribed by the regulations’ (s 12).  It will be an offence (s 9) to:

… intentionally and without a reasonable excuse –

(a) damage or destroy a defibrillator, or

(b) remove a defibrillator required to be installed under this Act from the location at which it is installed. 

Section 9 does not say that it is a defence to remove a defibrillator in order to use it!  Presumably that will be covered by the concept of a ‘reasonable excuse’.

The proposed maximum penalty for an offence contrary to s 9 is ‘90 penalty units or imprisonment for 5 years, or both’. At the time of writing a penalty unit is worth $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum financial penalty will be $9,900.

Will this Bill become law?

Who knows. Private Members Bills rarely make it through the process but this one has already made into Parliament so that is a start.   In my post A Bill to require installation of AEDs in South Australia (October 29, 2019) I said:

Private member’s Bills rarely succeed, and it is unlikely that the government would want to accept a Bill that would impose significant costs on the government to develop the register, public awareness campaign and training requirements as well as installing AEDs in all emergency service owned vehicles.   My guess is that this Bill will never become law …

My guess was clearly wrong – Bill for mandatory installation of AEDs passes in South Australia (December 11, 2022) – so I’m not going to be so bold to guess whether the NSW Bill will, or will not, become law.  We can only wait and see.

Victoria

And to return to the question I was asked that is do I ‘know of any laws Victoria dealing with the theft, removal or damage to AEDs, or only if/when the installation of AEDs are legally required at specific locations (eg: schools, gyms, recreational facilities etc)’?  the answer is ‘no’.  I am not aware of any laws dealing specifically with damage to or theft of AEDs, nor am I aware of any specific laws in Victoria requiring the installation of AEDs.

Theft of and damage to AEDs would be covered by normal criminal law dealing with theft of and damage to any private property.   A search of Victorian consolidated legislation on Austlii identifies no Acts where the term ‘defibrillator’ appears.   The Non-Emergency Patient Transport Regulations 2016 (Vic) provide that a vehicle used for non-emergency patient transport and a ‘first aid station’ must both be fitted with an AED (rr 44 and 51). 

There is no other specific legislation that says an AED must be fitted though an employer would have duties under the Occupational Health and Safety Act 2004 (Vic) to consider whether they should have one.

For a related, but cleary out of date discussion, see Making defibrillators compulsory in Victoria (January 20, 2020).

Postscript

Since writing this post I have had some further correspondence the gist of which is set out below. My original correspondent wrote and said ‘Unfortunate considering the number of AEDs being stolen and vandalised, was hoping for some legal framework to ward off mischief!’

There is a relevant legal framework.  There are laws that prohibit stealing and damaging the property of others. What difference would a specific offence make? Passing legislation doesn’t solve a problem unless the problem is an absence of legislation but I’m sure there are no cases of people being caught damaging or stealing AEDs and police saying ‘but that’s not an offence’. The issue is not an absence of legislation but detection, no doubt made more difficult if AEDs are truly accessible by the public 24 hours a day.

The bigger issue that I see is that despite the titles in the legislation, there is nothing in either the Automated External Defibrillators (Public Access) Act 2022 (SA) nor the Automated External Defibrillators (Public Access) Bill 2024 (No 3) (NSW) that says an installed AED must be accessible to the public, nor is it expected that they all will be. For example, in both the SA and NSW the term ‘vehicle’ is defined to include an aircraft (Automated External Defibrillators (Public Access) Act 2022 (SA) s 3 (definition of ‘vehicle’; Automated External Defibrillators (Public Access) Bill 2024 (No 3) (NSW) sch 2 (definition of ‘vehicle’)). What follows is that (subject to any exemption that may be provided) there will need to be an AED installed on all firefighting helicopters.  The idea that these will be accessible by the public, either when the aircraft is flying or when it is secured on the ground, is non-sensical.  All emergency service vehicles will be required to have an AED (ss 8(1) and 7(1) respectively) but they are not publicly accessible.  One would expect vehicles to be locked and when not in use secured in garages etc.  Even when they are in use firefighters are likely to stop someone who simply walks up to their appliance to take their AED.  Both the SA law and the NSW Bill require prisons to have AEDs (s 4(d), respectively) but one would not expect that they are available to the public.

Both SA and NSW will require those that install AEDs to notify the Minister ‘the times during which the defibrillator is accessible by the public’ (ss12(2)(b) and 8(2)(c) respectively) but it may be that there are no times.  There is no obligation to even make the AED accessible to those inside a building where the AED is required to be installed. There may need to be signs indicating where the AED is, but there’s nothing to say the AED cannot be behind a locked door accessible only by designated staff.

As for steaing the AED is it illegal to steal an AED just as it is illegal to steal anything else. As it stands a person may be reluctant to take a defibrillator for fear that they may be accused of stealing it. The NSW Bill (if passed) will provide that there is no offence under that Act where there is a reasonable excuse, but it does not make it clear that there is no defence under other provisions (eg Crimes Act 1900 (NSW) s 117, larceny).  The problem is not that the law does not deal with stealing an AED, it is that the NSW law will not make it clear that it is not stealing to take and use an AED where the person taking it thinks the AED may be needed for the very purpose for which it is intended. The South Australian Act does say (s 16(2)) it is a defence to damage, destroy or remove an AED if the

… damage, destruction or removal of the Automated External Defibrillator occurred in the course of using the Automated External Defibrillator to treat a person who the defendant reasonably believed to be suffering from cardiac arrest;

That may not help if a person takes an AED because they think a person is suffering from a cardiac condition and may suffer a cardiac arrest so they want the AED on hand, but at the time they take it the patient is clearly not in cardiac arrest.

These Acts may well increase the number of AEDs in the community, and one would expect that this will increase the number that are publicly accessible.  And if a member of the public approaches someone with an AED (to think of my firefighter example above) one would hope and expect that even if the owner of teh AED did not hand it over, they would themselves respond to the medical emergency and use the AED if it’s use was indicated.    Further the obligation on the Minister to develop campaigns to encourage people to use AEDs will hopefully increase their use.    

The Bills do not however guarantee public access to defibrillators. It might be useful to set out obligations upon a relevant person to make a defibrillator available when it is required. It might also be useful to make it clear that there is no offence, under either the specific legislation or the general criminal law to take an AED where the intention is to use it for the purpose for which it is intended.  Such laws would need to be carefully drafted to avoid unintended consequences.  One wouldn’t want the law to give permission to well meaning citizens to break into secure buildings or damage aircraft or other emergency service appliances in order to access the AED, nor would it be possible to foresee all the circumstances of all relevant building occupiers to be able to say who could or should be able to access the building to try to use the AED.  It is one thing to say a shopping centre has to have an AED that any one can access, quite another thing for a secure office, a prison, a school etc.

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.