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
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.