Today’s correspondent has:

…  a question about mandatory reporting.

I am a NSW RFS Deputy Captain who has just been sent photos and an e-mail from a strata chair (who does that?) showing the blocking off of a fire exit after the locks were destroyed. It’s purely to secure a basement car parking area. This will be in place for up to a month.

Where I as a teacher am required by law to report suspicions of child abuse, am I similarly required to report this to FRNSW seeing that I have become aware the law is being breached? I wouldn’t think that securing a basement would be a lawful excuse, which is mentioned but seems a bit vague in interpretation.

Teachers are mandatory reporters because the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27 says that they are.  Health professionals have mandatory reporting obligations with respect to other health professionals because the Health Practitioner Registration National Law says that they do.  In the absence of a specific legislative obligation, no-one has a mandatory reporting obligation.

The Crimes Act 1900 (NSW) s 316 says:

An adult–

(a) who knows or believes that a serious indictable offence has been committed by another person, and

(b) who knows or believes that he or she has information  that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and

(c) who fails without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority

commits an offence. A serious indictable offence is any offence punishable by 5 years imprisonment, or more (s 4).

The Environmental Planning and Assessment (Development Certification And Fire Safety) Regulation 2021 (NSW) r 109 says:

(1) A person must not place anything that may obstruct the free passage of persons in a fire exit area for a building.

(2) A person must not, without lawful excuse, interfere with or obstruct the following–

(a) a fire exit door or the operation of a fire exit door for a building,

(b) the operation of a fire door providing access to a building’s fire exit.

(3) The owner of a building must ensure that–

(a) each fire exit area for the building is kept clear of anything that may obstruct the free passage of persons, and

(b) the operation of a fire exit door is not interfered with or obstructed, except with lawful excuse.

The maximum penalty for a corporation is 150 penalty units (or 150 x $110 = $16,500) and for an individual it is 75 penalty units (or 75 x $110 = $8,250).  That is not ‘5 years imprisonment’ so it is not a ‘serious indictable offence’ and s 316, quoted above, won’t apply.

The Environmental Planning and Assessment Act 1979 (NSW) s 9.32 says

An authorised fire officer may exercise the powers of an investigation officer … for the purpose of inspecting a building to determine whether or not—

(a)  adequate provision for fire safety has been made in or in connection with the building, or

(b)  the fire safety provisions prescribed for the purposes of this section by the regulations have been complied with.

Regulation 109, quoted above, is a regulation prescribed for the purposes of s 9.32 (Environmental Planning and Assessment (Development Certification And Fire Safety) Regulation 2021(NSW) r 112 ‘Fire brigades inspection powers’). An authorised fire officer is ‘the Commissioner of Fire and Rescue NSW or a member of staff of Fire and Rescue NSW, or a member of a permanent fire brigade, who is for the time being authorised by the Minister administering the Fire and Rescue NSW Act 1989 to give fire safety orders’ (Environmental Planning and Assessment Act 1979 (NSW) s 9.35(d)).

Discussion

My correspondent has been sent a photo identifying issues with the fire door.  We don’t know why that was sent but I’ll assume it was sent because my correspondent is a deputy captain with the RFS and the person sending it wanted some action taken.  As noted the power to investigate and take action lies with Fire and Rescue NSW, not the Rural Fire Service.

My correspondent is not ‘mandated’ to do anything. There is no ‘mandatory reporting’ requirements, but it does not mean doing nothing is a good idea.  If the fire door is not safe, and is blocked, there is a risk that in the event of a fire, people will die. Risk is a product of high likely the event is and the possible consequences. It is not likely the building will catch fire. In any given month the absolute majority of buildings do not catch fire.  But the consequence if it does could be catastrophic.  The risk might be assessed as low, but it’s not zero.

If it does occur no doubt questions will be asked about the fire stairs.  The person who sent the photo, if they are the strata chair, may say ‘I reported it’ or ‘I sent a photo to the fire brigade to make sure it was ok’ but in either case no action was taken.  If people die they may well look to the RFS deputy captain. He or she knew of the risk, knew that the consequence if the hazard (building fire) occurred would be catastrophic.  What could he or she have done to deal with the risk?

It seems to me there are two options that a reasonable RFS deputy fire captain could do to ameliorate the risk. The options would cost between $1.70 and $3.40.  The first would be to invest in a stamp ($1.70) and write back to the person who sent the photo and says words to the effect of ‘thank you for drawing this to my attention but this is not a matter the RFS can deal with.  You need to take this up with Fire and Rescue NSW’.   Alternatively invest in two stamps and send it to FRNSW with a note saying words to the effect of ‘you may want to look into this’ and write back to the person who sent the photo saying ‘this is not a matter for the RFS, it is a matter for FRNSW. I have forwarded the photo to them and if you want to follow up, contact them directly’.

By doing that the person who sent the photos knows that whatever result they wanted, whether it’s action or approval, knows that they have not got it and if they want to take it further, they are informed where to take the matter.

Conclusion

The concept of being a mandatory reporter arises where legislation specifically imposes an obligation on particular people eg teachers or health care professionals.  In the context of today’s question my correspondent is not a ‘mandatory reporter’.  But that does not mean doing nothing is a good idea. Given the RFS is committed to public safety it would be prudent to at least respond to the person who sent the photo and tell them that they should raise the matter with FRNSW.

If it was sent to my correspondent for other reasons, eg they are a tenant in the building, or someone thought it was funny, then it may be wise to send it to FRNSW (even if that is not mandatory) and invite them to consider whether they want to take any action.

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.