This blog is maintained by Dr Michael Eburn. I am an Australian Lawyer, and formerly an Associate Professor at the ANU College of Law, the Australian National University, Canberra and before that an Associate Lecturer, Lecturer then Senior Lecturer at the School of Law, the University of New England, Armidale.
What this blog is about
This blog is here to discuss legal issues affecting the emergency services (that is fire, ambulance and rescue services) in Australia. On this blog I will report changes to the law (ie new legislation and relevant court cases) as they come to my notice. I will also answer questions from readers. To ask a question sent an email to email@example.com.
A word of caution about questions. This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events, such as “we responded to a job and now someone wants to sue me, what should I do”. For those jobs you (or more importantly, the service of which you are a member) needs to get legal advice from a practising lawyer. I also won’t comment on inter-personal issues “A fellow member said this, is it defamatory or can we kick them out of the service?” Having said that I want to hear as many things as possible because if I know the issues that are affecting the members, I can do more productive and useful work in trying to find answers. If your concern clearly falls in the above categories then understand I may not be able to give an answer, but there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say so.
Where I do answer questions, the answers are public. You cannot write to me and ask for a private or confidential answer. Private legal advice (which I am not allowed to give, see below) requires a legal retainer and carries professional obligations. That sort of advice comes at a fee. If you ask a question here it is because you think you and your colleagues will benefit from an answer of the general principles that apply and the techniques that a lawyer, or court, would use to resolve an issue. The discussion here is in the form of case studies to identify key legal issues. No-one should rely on anything that is said here (anymore than you would rely on a case study in a text book) to guide action, or response, where legal rights and responsibilities are in issue. Always seek legal advice from a practising lawyer if you are concerned about your legal position.
Why this blog?
I have been an academic researcher looking at legal issues. I was the chief investigator on a Bushfire and Natural Hazards CRC project looking at the Policies, Institutions and Governance of Natural Hazards. Before that I was a researcher on the Bushfire CRC funded project Mainstreaming Fire and Emergency Management across Legal and Policy Sectors; Joint Research and Policy Learning.
I am the author of Emergency Law: Rights, liabilities and duties of emergency workers and volunteers (1st ed 1999, 2nd ed 2005, 3rd ed 2009, 4th ed 2013 The Federation Press, Sydney) the only book on the subject of emergency law in Australia. Apart from my book I have written numerous articles and given conference papers and inservice training on legal issues affecting the emergency services. You can see details of my work, and also download copies of papers, presentations and in some cases audio recordings of presentations, here.
Who am I?
I hold the following degrees:
- Bachelor of Commerce (in Economics)/Bachelor of Laws (NSW);
- Bachelor of Arts (with Honours in Philosophy. Honours dissertation – The Sanctity of Life and the Law: A review of two recent cases) (New England);
- Master of Laws (by thesis- Euthanasia and Medical-end-of-life decisions in Australia) (Newcastle, Australia);
- Master of Professional Education and Training (Flexible, Online and Distance Education) (Deakin); and
- Doctor of Philosophy (by thesis – Australia’s International Disaster Response – Laws, Rules and Principles) (Monash).
I have served with:
- St John Ambulance Australia (NSW) and (ACT);
- The Ambulance Service of NSW (Paid, 1988; Honorary 1989-1990);
- The State Emergency Service of NSW; and
- ACT Ambulance (Non-Emergency Patient Transport).
I have practiced law as both a solicitor (including a period as a legal officer with NSW Health in 1991) and as a barrister. From 1994 to 2019 I was a full time academic – teacher and researcher – at the University of New England (1994-2010) and then at the Australian National University. Today I continue to research, write and where possible, teach in this area but on a casual or freelance basis.
Today, I am a lawyer, but not a barrister or solicitor
Historically lawyers were admitted as a ‘barrister’ or ‘solicitor’ of the Supreme Court of each state in which they wanted to practice. We now have national legal profession regulation and lawyers are admitted as ‘an Australian lawyer’ (Legal Profession Uniform Law (NSW) s 6). Being admitted is only the first step. To practice law an Australian lawyer requires a practising certificate issued by the Law Society or Bar Association. Only a person with a practising certificate can use the titles ‘solicitor’, ‘barrister’ or ‘barrister and solicitor’ (s 12 and Legal Profession Uniform General Rules 2015 (NSW) r 9) or engage in legal practice (s 10). To engage in legal practice ‘includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy)” (s 6). The essence of legal practice is, ‘the advising of a particular person in a particular situation and the production of a document which affects legal rights, and which is tailored to the particular needs of that person’.
I do not hold a current practising certificate. In light of that I cannot and will not (a) advise parties to litigation in respect of matters of law and procedure; (b) assist parties to litigation in the preparation of cases for litigation; (c) draft court documents on behalf of parties to litigation; (d) draft legal correspondence on behalf of parties to litigation; or (e) purport to act as a party’s agent in at least one piece of litigation or otherwise give advice to a person on their particular rights in a particular situation (https://www.lawsociety.com.au/sites/default/files/2018-03/Unqualified.pdf).
That is why this blog is an education tool, discussing legal principles, and policy, but it is not a place to get specific legal advice about your legal problem.
Apart from this blog, I am available to provide tailored services. If any organisation wants specifically tailored legal material – training notes, presentation, technical writing, drafting assistance etc – I am available to assist (for a fee). You can contact me by email at firstname.lastname@example.org.
I hope this site proves useful and interesting for all and I look forward to our discussions.
Last updated 10 April 2023
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 NSW SES Volunteers Association. I am responsible for the content in this blog including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Congratulations to you Michael for your education an d community service and for giving your time in this way for the community
Hi Michael, I read your comments in an ABC article on the declaration of a climate emergency. I am currently lobbying Councillors on the Unley council before they debate a motion to declare a climate emergency. One Councillor who I believe is a lawyer says she thinks such a declaration would be ultra vires. I don’t think she is right based on your comments for the ABC article. Do you have any other information or comment I can pass on to her to correct her view?
If you have the time to respond, many thanks!
There is a general rule that individuals can do what they like unless there is a law that says they cannot, governments cannot do anything unless there is a law that says they can. In the absence of the law allowing it, it may be ‘beyond power’ but even if they could do it, it would have no legal meaning.
I have been reading the Mental Health Act details about Ambulance and Police. Who has the greater power? If the ambulance paramedic doesn’t think someone needs transporting to hospital and has not immediate probable threats harm indicators can the police then use s.22 powers? Also the person that s. 22’s the person, do they need to fill out the paperwork?
Paul, I have answered those questions in detail – see
https://emergencylaw.wordpress.com/2019/09/14/revisiting-the-role-of-police-and-paramedics-when-dealing-with-the-mentally-ill-in-nsw/; and https://emergencylaw.wordpress.com/2020/08/27/detention-or-apprehension-under-mental-health-legislation/#comment-43608.
Police can exercise their powers under s 22 if they believe the conditions set out in that section have been met. If paramedics advise the police that they don’t think the conditions have been met, police would be wise to take that information into account and rethink their assessment. If police take action they need to complete their paperwork as they always do. There is not prescribed paperwork under the Mental Health Act (compare that to s 19).
Thank you for your succinct and clear piece Accessing a judge or magistrate’s reasons for decision.