By Michael Eburn, PhD and Barrister – September 24, 2018

This question touches on a significant issue in rural or bush fire fighting.  The details provided by my correspondent, a volunteer with the NSW Rural Fire Service, are very extensive, but I have edited them down to distil the essential facts whilst trying not to identify the participants, the location or the fire.

The gist of the issue is that my correspondent was with a volunteer brigade that had been sent out of area to assist at a large campaign fire. The incident controller had determined ‘that there would be no active, direct firefighting’.  Even so the firefighters were approached by people whose properties were at risk.  They understood that they were ‘being directed not to help the local farmers when they are in effect begging for help’.

This is not the first time this has happened – see Self help firefighting in Victoria(August 30, 2014).

The questions

My correspondent refers to RFS standard operating procedures that ‘clearly states that the RFS should provide a “Service to those in need” and asks ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’  He goes onto say:

I do not believe that any member of the RFS, staff or volunteer has the authority to direct a member of the RFS not to follow Fireground SOP #1…

Even with large fires on the worst possible days there will always be parts of the fire and parts of the day when it is safe to conduct active direct firefighting. To deny the farming community RFS support when it is perfectly safe makes little sense and it would also contravene Fireground SOP #1.

As for commands issued by the IC:

 … do you have to follow them? According to a recently released Service Standard 1.1.7 Code of Conduct and Ethics they are directives and yes, you do have to comply with them. Importantly it also states that the directives have to be “lawful and reasonable”… [At this fire]… crews were directed not to help the community even when the farmers and their families were directly asking for help. [Our]… crews had no other tasking and it was safe to help. No explanation was given for this directive …

I believe this directive was definitely unreasonable and most probably unlawful in the sense that it directly contravenes Fireground SOP #1.

And then there is a question about the nature of the RFS.

The RFS is a community based fire service where members are appointed from within their local community rather than one of the three tiers of Government. As volunteer members of a local brigade we are in effect “community servants” rather than “public servants”….

I do not believe that any member of Government, be it the Premier of NSW or senior public servant as in the RFS Commissioner has the authority to direct RFS brigades not to help their communities…

I guess I am asking or would like to know is am I barking up the wrong tree and is it me that has got it totally wrong or does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?

Reference documents

The RFS is governed by a number of instruments.  The Act is at the top of the hierarchy, the service exists and operates because of the Act. Under the Act are the regulations – the Rural Fires Regulation 2013 (NSW) – that are endorsed by Parliament.  The Act and Regulations provide the overall structure but not the details of how the service is to operate.  That is left to the Service under the command of the Commissioner.  The procedures and policies are set out in documents such as Policies, Service Standards and Standard Operating Procedures.   As Service Standard 1.5.1 Management of NSW RFS Policy Documents correctly states:

1.5       In case of any conflict between a policy document [ie ‘NSW RFS Service Standards, Policies, Standard Operating Procedures (SOPs) and any other relevant documents issued by the Commissioner’] and an Operational Protocol, manual or guideline, the policy document will take precedence.

1.6       In case of any conflict between legislation and a NSW RFS policy document, the legislation will take precedence. In the event of any inconsistency, the legislation will prevail over any other document.

The RFS is very good at publishing its Service Standards, Policies and Operational Protocols online.   I was unable to find a copy of the Fireground SOPs on the RFS website but I did find a copy of the Rural Fire Service Fireground S.O.P.s (1999 Edition) on a brigade website.  I will refer to them on the assumption that they are the current version.

The legal structure of the RFS

The RFS may have begun as a collective of brigades, where people joined their local bushfire brigade that was in turn linked to the overarching organisation that set standards and helped ensure consistent equipment.  That has not been the case since the passage of the Rural Fires Act 1997 (NSW).  The Office of the NSW Rural Fire Service led by the Commissioner of the NSW Rural Fire Service is a government executive agency related to the department of Justice (Government Sector Employment Act 2013 (NSW) Sch 1).   The Rural Fire Service itself is not a legal entity in its own right, it is part of the government that is sued and can sue in the name of the Crown in Right of NSW. The RFS consists of the Commissioner, the staff and the volunteers of the RFS.

The Commissioner is (s 12):

…responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.

(2) The Commissioner may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff.

The Commissioner may delegate any member of the RFS to perform the Commissioner’s duties or exercise the Commissioner’s powers (s 14).  A list of delegations is set out in Service Standard 1.3.1 Delegations and Authorisations.  Further, the Commissioner can nominate officers to exercise the powers listed under s 22 of the Act.  The designations under s 22 are set out in Service Standard 1.3.2 Powers of Officers.

The Commissioner sets the functions of an RFS brigade (s 21).  Brigades may believe that they are a community organisation but they are part and parcel of a government service – see ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015).

The Commissioner, not the community, appoints the members of the RFS even though, necessarily they come from the community that they serve (Rural Fires Act 1997 (NSW) s 20 and Service Standard 1.3.1 Delegations and Authorisations).

In a covering email my correspondent said ‘From my perspective, a community based volunteer fire service must have some fundamental differences than a fire service like NSW Fire & Rescue’ but that difference is not clear.  FRNSW also depends on community members as retained firefighters and even permanent officers relocated to a new station become members of their own community. The legislative and command/control arrangements for FRNSW and the RFS are not significantly different.  Both are government operated fire brigades although the RFS depends on unpaid volunteers in a way that FRNSW does not.

The chain of command

Regulation 9 of the Rural Fires Regulation 2013 (NSW) says

An officer or member of a rural fire brigade or group of rural fire brigades is guilty of a breach of discipline if the officer or member:

(a) contravenes the Act or a provision of this Regulation, or…

(c) fails to comply with the Service Standards.

Penalties for a breach of discipline can range from a reprimand to termination of membership.

Service Standard 1.1.7 Code of Conduct and Ethics says:

All members must also comply with any lawful and reasonable direction or instruction given to by another NSW RFS member empowered to make such a direction or instruction under legislation, regulation, delegation or authorisation.

The role of Standard Operating Procedures

My correspondent says that the RFS Standard Operating Procedure (SOP) ‘clearly states that the RFS should provide a “Service to those in need”…’  That is an incomplete statement of what is in the SOP.  S.O.P. #1 Basic Priorities says:

Procedure

• The priorities at all fires and other incidents are as follows:
  • Overriding Priority – Firefighter safety
  • First Priority – Protect people
  • Second Priority – Protect property
  • Third Priority – Help restore normality.

When it comes to ‘Service to those in need’ it says:

Consistent with safety, all officers and firefighters should provide the firefighting and related services reasonably needed and wanted by the community.

My correspondent’s first question was ‘can a member be directed not to follow these SOPs, ie not to provide a service to those in need?’ the answer has to be ‘yes’.  The obligation to provide ‘service to those in need’ is not absolute.  It is subject to safety, so there can be a direction to withdraw service when it is the risk to safety exceeds any perceived benefit.

Where there is no risk to safety the SOP begs the question of what is meant ‘by the community’?  Community is a vague term that can mean so much. A crew may see the community as those in their immediate vicinity; the sector commander may see the community as those on the rural land in the villages.  The Commissioner may see the community as ‘the community of NSW’.

Further what services are ‘reasonably needed and wanted by the community’ not only depends on the definition of community but also perspectives of what is likely to be effective.  Two people could read SOP 1 and Service Standard 1.1.7 Code of Conduct and Ethics guidance for ethical decision making (see [3.3]) and come to quite different opinions of what is the appropriate response in all the circumstances.

Because there can be different views someone has to decide – and that is the role of the person delegated by the Commissioner to make that decision – ideally the incident controller.  Given that the rural fire service is the New South Wales rural fire service, the incident controller, and ultimately the Commissioner has to decide how to allocate resources to best serve the community of NSW.  It may mean withholding service from some part of the community in order to deal with threats to other areas.  In my summary of the decision in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701, I said:

With respect to fighting the fire, he [Walmsely AJ] held that there was no legal obligation or duty owed to the plaintiffs.  The RFS is established to provide fire fighting services for the common good, not for individual benefit.  The RFS had to provide fire fighting across the state and on that day there were fires all across the state and providing a much more direct threat to different communities.  If the RFS owed a duty to these plaintiffs then it owed similar duties to other homeowners across the state.  The RFS had to make decisions about how to allocate scarce resources, how to manage and protect its own staff, and how to make decisions for the greatest good.  All of these factors move against holding that they owe a duty to any identifiable individual that would, in turn allow a person to sue the RFS for failing to extinguish a fire.

One thing that decision makers’ must consider (Service Standard 1.1.7 Code of Conduct and Ethics [3.3]) is:

Is what I am proposing to do in the best interests of the NSW RFS and the Community? (i.e. Will it yield the greatest benefit or least harm to the most people and minimize the number of people who might be disadvantaged in the short or long term).

Holding crews back to be available to meet other demands etc may disadvantage some people but bring the greatest benefit to the most people.  A fire service such as the RFS has to make decisions that may see them allow, or even cause, some properties to be lost in order to protect the broader community (Malverer v Spinke(1538) 73 ER 79; Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701; Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45).

The chain of command is there to provide a state wide fire service, not a combination of independent brigades, and to allow resources to be allocated where the Commissioner or his or her delegate determines.  If brigades are free to ignore those commands there is no coordinated effort and each community could only rely on its local brigade that will have insufficient resources to deal with many fires.  Even so there are fires that will exceed the capacity of any fire service and so tough decisions have to be made.

Where the obligation is to obey ‘any lawful and reasonable direction’ then there is an ‘out’ if a member thinks the directive is not lawful or not reasonable.  In that case Service Standard 1.1.7 does not compel obedience but a member has to recall that interpretations of what is reasonable, and to a lesser extent lawful, can vary.  If you take the view that you are not going to obey a command because it is unreasonable or unlawful then that may be accepted.  But if it’s not, if in some after action review it is alleged that there was a failure to comply with a ‘lawful and reasonable direction’ the members will have to be prepared to justify their decision and the review authority may, or may not, agree with their analysis.

Does a local volunteer have some level independence in how a local community gets looked after come the day of a big fire?

Notwithstanding the above, the answer has to be ‘yes’ because volunteers are just that.  And they can decide they’re not going to volunteer.  The ultimate sanction is that they can be dismissed from the RFS, but equally their ultimate power is that they can withdraw their service.  If one brigade refuses to follow direction, the members may be removed from the RFS.  If all the brigades refuse, the Commissioner may be removed.

If we look at the letter of the law however, it is the Commissioner that is ultimately responsible for the management of the service and its response to any fire.  The Commissioner can delegate his authority to officers and importantly to the incident controller.  The legislation provides for a chain of command and Service Standard 1.1.7 requires members to follow those directions from the authorised officers.  The Standard Operating Procedure is the lowest ranked document and it does not clearly determine the matter.  Opinions about what constitutes the ‘community’ and what are the ‘services reasonably needed and wanted by the community’ will vary depending on the perspective of the decision maker. In a campaign fire, decisions must be made about the allocation of resources and priorities and brigades and members are expected to implement those decisions.

What is essential, however, is not to be found in law.  What is required, I suggest, is good communication and trust.  Everyone will see the situation from a different perspective. The IC who is located away from the brigade, doesn’t have the on-the-ground view but hopefully trusts brigades to be flexible and adaptive to adjust to local conditions whilst still trying to meet the commander’s intent or objectives.  The brigades don’t have the whole picture that we hope the IC has but hopefully trust the IC to be making decisions that are in the best interest of the whole community.  Communication on the fire ground and making sure everyone has a common operating picture is always difficult if not impossible.  But this blog isn’t about decision making in a crisis, it’s about the law.