Government exposed to legal payouts after landmark finding that there is “good evidence” that toxic firefighting chemicals could cause some cancers.
Included in this post is a copy of the NSW Governments response to the final report of the NSW Legislative Council, Portfolio Committee No. 4 – Legal Affairs entitled Emergency Services Agencies, tabled with the Clerk of the Legislative Council on 24 July 2018.
The inquiry began in July of 2017 and the final report of the NSW Legislative Council, Portfolio Committee No. 4 – Legal Affairs was published in July of 2018.
The NSW Government’s response is a disgrace.
Two Volunteer Firefighters, both in legal battles.
One gets legal support and a full-time job.
The other gets a $100,000 legal bill after being cleared in court.
Mr Grant (Minister for Emergency Services), how is this fair?
Your response is a disgrace.
From a VFFA perspective, if you are a volunteer of the NSW Rural Fire Service (RFS) and you find yourself in any type of trouble, you cannot rely on the RFS for support.
The level of support offered will depend upon:
- Who you know,
- Who you run with,
- Your affiliations (RFSA or VFFA), and
- Your loyalty to the hierarchy without question.
A Tale of Two Firefighters
Before we tell you the tale of two firefighters, I draw your attention to Recommendation 13, which states:
That the NSW Rural Fire Service review the processes and criteria in place for considering requests for legal assistance by volunteers and staff, to ensure that this support is provided in all appropriate cases.Final report of the NSW Legislative Council
This was the NSW Government’s response:
Ex gratia legal assistance is provided as appropriate in accordance with the NSW Government guidelines contained in Ml999-11 Guidelines for the Provision of ex Gratia legal Assistance for Ministers, Public Officials and Crown Employees. All NSW RFS members receive the same access to ex gratia legal assistance, with determination of eligibility resting with the Secretary of the Department of Justice.NSW Government’s Response
The VFFA has not raised this comparison previously because we have attempted to avoid any additional stress upon the two firefighters involved. We are now forced to publish this comparison (without too much detail at this time) and we will ramp up our campaign against the Minister for Emergency Services, Troy Grant and the NSW Premier, Gladys Berejiklian until firefighter number two receives the support that he deserves.
Firefighter One was involved in a motor vehicle accident that resulted in loss of life.
Firefighter One was quoted as saying that he would not have been able to cope without the support of the RFS and the Rural Fire Service Association (RFSA).
“The RFS has been 100 per cent supportive,” he said. “They have been supporting me as much as they can.”
He said both the RFS and its association made it “easier to go through a journey that I have”.
It is a very different story for Firefighter Two.
Firefighter Two was helping out at a hazard reduction.
The road to the fire station was the only road to access.
He was required to enter the fire ground in his private vehicle once clearly identifying himself to traffic controllers who had closed the road to the public.
After arriving at his fire station, he was formally asked by an RFS staff member, to stand down from starting his shift on the fire truck and wait inside the fire station. Police were called.
No charges or arrests were made by Police at the time of the alleged incident.
Almost 4 months of silence from both NSW Police and the RFS, Firefighter Two was charged by Police with Dangerous Driving to appear in Local Court.
The District Court Judge, Paul Conlan, later quashed ALL charges against Firefighter Two, he was completely exonerated.
Firefighter Two has applied twice for ex-gratia assistance.
After Firefighter two applied for the first time for ex gratia assistance, the RFS suspended his RFS membership (he had only been charged at this stage, not attended local court) stating the reason he was found guilty of a criminal charge.
After reviewing the RFS’s own Standard Operation Procedures for RFS Firefighter Two’s solicitor successfully appealed his suspension and he was re-inducted as a RFS volunteer with full rights again.
At no stage since the alleged incident (over a 2 year period), has anyone from the NSW RFS Head Office or even locally at Northern Beaches RFS District has been in contact with Firefighter two to check on his wellbeing
To date, Firefighter Two has had zero support from the RFS.
Cleared of all charges, he now faces legal bills of over $100,000.
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 Volunteer Fire Fighters Association (VFFA) President Mick Holton says he is encouraged by the release of the NSW Upper House report, entitled Emergency Services Agencies NSW.
The report focused heavily upon bullying and harassment in the NSW Emergency Services.
“The report confirms what many NSW Rural Fire Service (RFS) volunteers have known for a long time – that bullying, harassment and abuse of power is occurring in the RFS” said Mr. Holton.
“The VFFA recognises the courage of RFS volunteers and salaried staff in coming forward and working with the Portfolio Committee No. 4 – Legal Affairs, during this Upper House inquiry.”
“Volunteering with the RFS should be non-threatening, respectful, safe and free from all forms of bullying and harassment.”
“All volunteers have the right not to bullied or discriminated against in the RFS” said Mr. Holton.
“We are pleased to continue to lead and to participate in efforts to support volunteers who have suffered bullying and harassment in the RFS and will continue to challenge and call out this unacceptable behaviour,” said Mr. Holton.
The VFFA welcomes the release of the report and calls on NSW Government and the RFS to adopt all the recommendations of the Upper House Inquiry into Emergency Service Agencies.
Major Reform is Required.
In this paper, Michael Eburn and his colleague Geoff Cary argue that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire. That legal conclusion could have dramatic implications for fire management policies. It will be shown that liability for starting a prescribed burn is clear-cut whereas liability for allowing accumulated fuel loads to contribute to the spread of fire is almost unheard of. As a result, we argue that the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. After identifying the current legal position, we recommend changes to align the law with the national policy direction.