Legal Status of Brigades - the conversation we have to have
Monday, 7 Aug 2017
Why the need to move? - the 2011 advice from Crown Law and the most recent advice received by the QFES this year states that Rural Fire Brigades are not a part of the QFES, rather that they are unincorporated associations that the QFES outsources response and mitigation to across the state. Being unincorporated means that brigades should not purchase and dispose of property nor enter into contracts.
This position is untenable and has been pursued by the RFBAQ since 2013 when the Crown Law advice was made public.
This has also been one of the RFBAQ's 6 Key Strategy Objectives:
Clear workable definition of the legal status of brigades reflecting Crown Law advice 2011.
The question over who 'owns' a Rural Fire Brigade was publicly raised by the Queensland Audit Office (QAO) in their 2010 submission to the Queensland Parliament Review into the Management of Rural Fire Services in Queensland.
In this submission, the Auditor General queries the level of departmental control that can be exercised over Rural Fire Brigades in Queensland.
Recommendation 1 of the Queensland Parliamentary Review into the Management of Rural Fire Services in Queensland 2011 is 'that the Minister for Police, Corrective Services and Emergency Services undertake a comprehensive legal review in order to clarify the legal position of RFBs and their members'.
Crown Law advice was sought into this question, with advice being provided to the department on 01/11/2011 clearly stating that Rural Fire Brigades are not a part of the Queensland Fire and Rescue Service. And that legally, brigades cannot enter into a contract nor can brigades buy or own property.
The RFBAQ in submissions to the Malone Review raised the question of legal advice arising from the Parliamentary Review and in the RFBAQ submission to Malone stated; 'The RFBAQ has requested the findings of the clarification of the legal position of RFB's in Queensland and their relation to the Department of Community Safety. The RFBAQ has been informed by the QFRS that Government legal advice has been sought from Crown Law, and that the Department has subsequently taken legal advice on the Crown Law advice and that that advice is now strictly confidential.'
This advice was held in confidence by the Queensland Fire and Rescue Service until demanded by the Malone Review in late 2012.
There has been no action to date to bring the Rural Fire Brigade manual in line with the advice from Crown Law.
There has been a lot of the water under the bridge since the above was written in 2014 and all brigade volunteers would agree that the level of support that they receive from RFSQ and its supporting department QFES has never been higher and that there is now an honest and genuine understanding of what brigades actually do in their communities across Queensland.
To allow that growth and for flexibility of community defence, brigades need to have a sound legal basis that defines the relationship between themselves and the QFES/Department; themselves, contractors and suppliers. This is in addition to the large amounts of brigade owned equipment that is purchased and disposed of. From firefighting equipment, portable radios, chainsaws through to fridges, office chairs and specialised rescue equipment which is owned by brigades and not the QFES.
A new legal position would also necessitate the re-writing of the Brigade Manual and many internal QFES instruments for when brigades are deemed to be operating under the Fire Service Act 1990 (Rural Fire Brigade Volunteers included as Fire Service Officers under QFES Legislation. This is a separate and ongoing conversation between the QFES / RFBAQ / Minister where progress is starting to be made).
The RFBAQ General Meeting passed a resolution that a working group be formed to engage with brigades to ascertain what they do in their communities at present and how their community defence model would change / increase into the future. This would then be the basis for an approach to the QFES regarding seeking differing legal models that would start to positively support brigades now and into the future.
Realising that this was an enormous piece of work that requires resourcing that is only able to be exercised by the QFES and State Government, the RFBAQ lobbied the Ministry, Deputy Commissioner Mike Wassing and Commissioner Katarina Carroll for a joint partnership.
The first meeting was convened in Kedron in November 2016 and a subsequent meeting was held again in Kedron in December 2016 where the process for the consultation with brigades and the membership of the combined working group was agreed. A subsequent number of meetings have taken place with the next scheduled for Wednesday 15th August. The RFBAQ has been providing the secretariat for the process and it is agreed that the RFBAQ will continue with this support throughout the whole process to ensure the continuity of information.
The initial agreed timeframes blew out for varying reasons; and as this is seminal to supporting brigades for future decades it was agreed by all parties to commence the brigade engagement component in the 1st quarter of 2018 and the supply of appropriate information so that brigades are aware of the true intent of the proposed Legal Status meetings.
A most important part of the RFBAQ /QFES discussions was sequential process and how to achieve the best outcomes for brigades. The easiest, cheapest, fastest and most convenient way to approach this would have been for the QFES to ask Legal to draft a new legal status for brigades. Unfortunately this would also have resulted in a model that would not necessarily have provided the best platform to support brigades in defending their communities today or into the future.
The agreed position is to first engage with brigades to ascertain who they are, what they do and what support they are going to need, and then with this information request a number of legal frameworks that could support brigades in their communities.
This longer and consultative sequence will deliver a markedly different piece of advice that the former.
Once these new draft models have been received, an information dvd will be produced that clearly outlines the different proposed models and what that means to brigades and how they conduct business with their communities and their relationship with the QFES.
Following that will be a 6 month period where brigades will be asked to convene a meeting to discuss the varying models and for the brigade to vote on which model will best serve their community.
Brigade Engagement and the upcoming 1st Officer/Chairperson meetings and the Talking Stick
The brigade consultation that commences in the 1st quarter of 2018 is only regarding the gathering of information relating to The Legal Status of Brigades. Your RFSQ Region or Area Office may build the meeting into their regional training calendar and have prior or subsequent meetings or information sessions, but the only agenda item for these meetings is Legal Status. This does not incorporate the conversation regarding Fire Officers under the Fire Act 1990 which is separate.
The talking stick - 1st Officers are elected by their brigade members as is the Brigade Chairperson. The invitation will be extended to these members of each brigade or their appointed delegate. This ensures that the voice of the each brigade is representative and accountable back to their brigade and community.
Should all brigade members be heard? - Most definitely, and this is a conversation that should be wide ranging and inclusive and then reflected in brigade minutes for the designated brigade member who has the talking stick to voice.
What will be the questions?
The intent of the meetings is not to actually get into the current legal status and advice from Crown Law, as that's not what brigades are expert in and a debate over the position of a comma vs a semi-colon in the current legal advice will not change an untenable legal position into a workable future model.
Again; what we are trying to achieve is ground truthing what brigades do now and what they will do in the future so that Legal can prepare some draft options that are specifically designed to support brigades defending their communities into the future.
Questions will be along the lines of:
- What level of support does your brigade currently provide to your community?
- What will your brigade look like in the future? Will your support model change, grow? Will your risk profile change?
- Does your brigade own any equipment such as trailers, fridges, office supplies, computers or the like?
- How do you acquire and dispose of the equipment? Who insures your brigade owned equipment?
- Does your brigade enter into contracts such as phone plans, electricity and the like?
- Do you foresee that brigades will need to be able to manage contracts and purchase and dispose of equipment in the future?
The meetings will be chaired by RFSQ Superintendent Tony Hazell and have two elected RFBAQ Representatives who are also SEM Members, Graeme McWilliam and Ian Pike AFSM with other members from RFSQ Volunteer and Frontline Support Services. As mentioned before, secretarial will be provided by Ruth Jennings, RFBAQ staff.
Times when things are happening
Not now, it's fire season.
Meeting dates will be sent to regions within the next couple of weeks to allow the RFSQ Regional Managers to build this into their planning for next year. Meetings will be held between February/March/April to allow for the collated results to be presented at RFSQ Summit in May which is also the RFBAQ State Executive meeting.
From there Queensland Audit Office and Crown Law will be approached by the QFES/RFBAQ to work on formulating a number of workable legal positions that support the brigades in what they do in their communities and define the relationship between the brigades and the QFES/Department.
How long will that take? No Idea; but best case scenario is that the information DVD of the new legal position choices and 6 month voting period would commence in January 2019.
That seems like a long way off and a very slow process, but the legal position of brigades and the questions behind it has been a matter of debate since before the Queensland Audit Office report of 1998 and has been batted to one side by successive Governments and the former QFRS.
Now that we have the support of the government and the partnership with the QFES it is time to 'build your house on the rock'.
This is a very exciting time to be a brigade member supported by the RFSQ and the QFES/Department and the RFBAQ hopes that brigade members fully engage with this opportunity to build a new model that allows us all to do what we volunteered for - defending our communities.