Today I’m asked whether I ‘have any previous examples of full NSW RFS members, being refused from transferring brigades being told to stay in their existing brigades, citing criminal charges…’

The short answer is no, I haven’t heard of anyone being refused a transfer because of outstanding criminal matters.  The longer answer is that it appears that when transferring a brigade, a member in effect resigns from one brigade and joins another rather than simply having their membership moved. NSW Rural Fire Service Service Standard 2.1.6 Volunteer Membership Applications says this about transfers at [3.14]:

A member applying to transfer from one brigade to another will cease to belong to their original brigade once they have been accepted as a probationary member of their new brigade.

That is regardless of one’s years of service, a transferring member starts again as a probationary member.   A police check is required for all new applicants and for transferring members ([1.4] and [3.9]).

Service Standard 1.1.21Brigade Membership Removal provides (at [2.13]) that a person may be removed from membership of the RFS if he or she:

c. is convicted in NSW of an offence that is punishable by imprisonment for 12 months or more or is convicted outside NSW of an offence that, if it had been committed in NSW, would have been punishable by imprisonment for 12 months or more; or

d. is, in the opinion of the Area Commander or Director Area Operations, no longer a fit and proper person to be a member of the brigade.

A member is required to report if they are charged with or convicted of offences set out in [2.7] of Service Standard 1.1.25 Disclosing Charges and Convictions. The list is:

a. A “sexual offence” as defined in section 7(4) of the Criminal Records Act 1991 or a similar offence in another jurisdiction;

b. Any dealings with or involving a person under the age of 18 years;

c. Dishonesty, including theft or fraud;

d. Assault or violence against a person;

e. The death or injury of another person;

f. The importation, manufacture, cultivation, sale, distribution or trafficking of drugs;

g. Terrorism, however described;

h. Arson or the setting of fires, however described;

i. Serious traffic offences such as:

– Drink driving;

– Dangerous or negligent driving where someone is hurt; or

– Driving whilst disqualified.

j. Public mischief or the making of false alarms.

It is not axiomatic that being charged with or convicted of any of these offences will lead to removal from the service or a determination that the person is not a fit and proper person to be a member of the RFS. The ‘relevant Area Commander or Director Area Operations [is] … to consider all aspects of a volunteer member’s charge/s or conviction/s (including their severity) and determine whether the member should be removed from the RFS’.  For example it may be quite appropriate to retain an RFS member who whilst proceeding to an emergency is involved in a fatal collision even if they are charged with serious offences arising out of that collision.

Service Standard 1.1.21 [2.3] says:

A person may be removed from one register without affecting other brigade memberships they hold, and only ceases to be a member of the RFS when their name has been removed from ALL brigade registers on which they appear.

An Area Commander may have determined that the criminal matters do not warrant a member’s removal from the RFS but that would not appear to be binding on another area or another brigade. If for example a member was a dual member (a member of two brigades) they may be removed from one ‘register’ by one Area Commander but allowed to remain in the other Brigade by another Commander.  

Discussion

A member who has been charged with or convicted of an offence listed in [2.7] of Service Standard 1.1.25 and who has not been removed from membership of the RFS may find that a new area of a new brigade is unwilling to accept their ‘new’ membership of that brigade.  It appears that there is no right to transfer, and a transfer application has to be approved, or the member ‘accepted’, by the new brigade) (Service Standard 2.1.6, [3.14]).  

If that is correct, then it could be appropriate advice to ‘stay where you are’ if ‘where you are’ continues to accept the person as a member whereas the new Brigade in a new Area may be unwilling to do so. Applying to transfer with outstanding charges or prior convictions may lead to re-opening the decision of whether the member should remain a member of the RFS. If the decision was made that the person was not acceptable to the new brigade the member would have to stay where they are or appeal the decision which in turn may lead to a higher level decision of whether they can stay in the RFS at all.

Conclusion

Reading the various service standards, it would appear there is no right to transfer regardless of one’s length of service. An application to transfer is akin to a fresh application to join and may be rejected for a variety of reasons including criminal history.  A transfer is only effective where the applicant has ‘been accepted as a probationary member of their new brigade’.  If the new brigade refuses the application, then the member would have to remain as part of their original brigade or seek to appeal the decision.

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.