Legal Status of Brigades

Friday, 27 Oct 2017

Monday, 7 Aug 2017
Legal Status of Brigades - the conversation we have to have

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).

RFBAQ/QFES partnership

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:

  1. What level of support does your brigade currently provide to your community?
  2. What will your brigade look like in the future? Will your support model change, grow? Will your risk profile change?
  3. Does your brigade own any equipment such as trailers, fridges, office supplies, computers or the like?
  4. How do you acquire and dispose of the equipment? Who insures your brigade owned equipment?
  5. Does your brigade enter into contracts such as phone plans, electricity and the like?
  6. 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.


Wednesday, 10 Sep 2014
Crown Law advice states – ‘Brigades are not part of the Queensland Fire and Rescue Service’

The Queensland State Government recognises the Crown Law advice.

Again the RFBAQ demands that the QFES Commissioner provides the below -

  1. Clear legal definition of what is a Rural Fire Brigade, who constitutes it and what powers and responsibilities it exercises.
  2. Clear legal definition of the relationship between QFES, Rural Fire Brigades and the SES.
  3. A re-writing of the Rural Fire Brigade Manual, all Operations Doctrines, Standing Orders and Incident Management protocols reflecting the true position of Rural Fire Brigades and the QFES.
  4. Amendments to the Fire and Emergency Services Act 1990, current as at 01/07/2014 to incorporate Rural Fire Volunteers and truly reflect the role that Rural Fire Brigades and Volunteers undertake.


Friday, 29 Aug 2014
Only in Queensland. Rural Fire Brigades and SES are Third Party Providers (not part of QFES)

Progression of events

In the QFES Standing Order SO-Q-OM-4.28 valid from 01/08/2014, the Commissioner, Queensland Fire and Emergency Services (QFES) states that Rural Fire Brigades and SES are Third Party Providers to the QFES.

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.

The Malone Review into the Rural Fire Services in Queensland 2013, Recommendation 80 states ' 'That the State Government recognises the legal status of rural fire brigades as per Crown Law advice and addressed by recommendations from this Review'.

In addition to this, the Malone Review Attachment 2 provides a Legal Advice Summary which again states that a brigade is a group of persons separate from QFRS and the department.

Documentation from the Malone Review Implementation Team show that the Commissioner, as Chair of the QFES Steering Committee signed off on Malone Recommendation 80 on the 19/11/2013 and that this Recommendation was supported by the Keelty/PACSR Report and that the Crown Law position is supported by the QFES.

Examples of Brigades being kept at arm's length from QFES

  • External Applicants

Rural Fire Brigade volunteers and Auxiliary Firefighters who apply for permanent positions within the Rural Fire Service Queensland are considered external candidates, whereas permanent Urban Fire Officers are considered internal candidates for position in the Rural Fire Service.

  • Excluded under QFRS Award 2012

Rural Fire Brigade volunteers and Auxiliary Firefighters who apply for Expression of Interest Positions within the Rural Fire Service Queensland are specifically excluded under the QFRS Award 2012 ' section 1.4, which states ' 'This award shall apply to employees of the Queensland Fire and Rescue Service whose rates of pay are prescribed herein and to the Commissioner of Queensland Fire and Rescue Service as employer in relation to such employees.
Provided that this Award shall not apply to volunteer or auxiliary officers of the Queensland Fire and Rescue Service'.

  • Declined access to Daily Incidental Claims

Rural Fire Brigade volunteers are declined access to Daily Incidental Claims for deployments, the entitlement extends to permanent Urban Officers, Auxiliary Firefighters, Rural Fire Service paid staff, SES volunteers, yet will not be extended to Rural Fire Brigade volunteers as RFSQ clearly states that volunteers are not covered by the QFRS Award.

  • Non-existent or depreciated Brigade insurance

Brigade insurances see that for a permanent or auxiliary fire station, full insurance coverage is provided, yet with a Rural Fire Brigade insurance support is non-existent or depreciated.
As an example ' when a Rural Fire Brigade is burgled and chainsaws stolen, the Rural Fire Brigade is covered for the depreciated value of the equipment, and then will need to fundraise for the difference. If equipment is stolen from a Permanent or Auxiliary Station, this equipment is replaced by the QFES.
If a Rural Fire Brigade fire engine is damaged on the fire ground, breaks a chassis or is in need of repair, the Rural Fire Brigade will need to fundraise to pay for the repair to what is a QFES asset.
If this damage occurred to a Permanent or Auxiliary fire engine, the vehicle would be repaired or replaced by the QFES.

  • Volunteers excluded from the Act

The classification of 1st Officers and Rural Fire Brigade volunteers has seen a further widening of the gap between QFES and Rural Fire Brigades. In the current Fire and Emergency Services Act 1990, current as at 01/07/2014 (link here for full Act) the word 'volunteer' is not to be found once in the 266 pages. Small as this omission is, the implications are profound, for the only member of a Rural Fire Brigade that is mentioned is the 1st Officer who is not recognised as Fire Service Officers under the Act as stated in correspondence regarding a request for clarification from Crown Law from the RFBAQ and subsequent correspondence with the QFES Commissioner.
This has led to Rural Fire Brigades being specifically excluded in the Operation Doctrine ' Incident Directive 8.1 valid from 10/12/2013 where Rural Fire Brigade volunteers are not classified as emergency workers as are Urban Fire Officers, Auxiliary firefighters, SES volunteers, Rural Fire Service paid staff and a Rural Fire Service volunteer from another State or Territory in Australia who travels to Queensland to support in times of fire or natural disaster.

"Fire and Emergency Services Act 1990, current as at 01/07/2014
86 Powers of officers of other States to fight fires in Queensland


(1) In this section
officer of another State means an officer of any body or organisation that, pursuant to any law of another State, is responsible for extinguishing fires in rural areas in that State."

  • Completely separate funding

Funding for Rural Fire Brigades has now evolved to a system where a brigade receives completely separate funding and support as that received by the Urban and Auxiliary fire Services. Since January 2014, residents in the 93% of Queensland protected by Rural Fire Brigades now pay the Emergency Management Levy in addition to a Rural Fire Levy collected on behalf of Brigades by Local Councils. This now sees many Queenslanders in Rural Fire Brigade areas paying two fire taxes where Queenslanders in Urban and Auxiliary Service delivery areas pay one tax.
As stated in the attached document from the Public Safety Business Agency FAQ sheet Rural Fire Brigades do not receive funding from the Emergency Management Levy leaving the vast majority of Rural Fire Brigades in Queensland without financial support to fund their operations.

  • RFB 1st Officers subordinate to paid Fire Service

In the current Fire and Emergency Services Act 1990, current as at 01/07/2014

"83 Powers of first officer
(1) Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose
(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and
(b) the control and direction of any person (including any fire officer) whose services are available at the fire.
(2) Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer.
(3) Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner.
(4) In this section first officer includes, where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available.
(5) Where a rural fire brigade is assisting in operations for controlling or extinguishing a fire, the person who pursuant to this Act or any direction given by the commissioner is in charge of those operations has the control and direction of the members of the rural fire brigade."


Yet Incident Management System 2.1 valid from 01/05/2010 overrides this clear legislative direction showing that a Rural Fire Brigade 1st Officer is subordinate to Paid Fire Service Officers.
 
How did this happen?
 
The centralised administration of fire in Queensland is managed by a small clique of Senior Fire bureaucrats based in Kedron who have not been volunteers, do not understand volunteers and who have tried unsuccessfully to grow their representation into the Rural Fire Service.
This initially was exhibited by the Senior Officer Union (SOU) http://www.qfr-sou.asn.au/ attempting to become the Union representing Rural Fire Service paid staff. The ruling of the Queensland Industrial Relations Commission 27/10/2010 found that -

"The Bench accepts that a rural fire officer then, and now, has a separate and identifiable area of activity and has different responsibilities and accountabilities to service as a non-rural fire officer. In this regard we have accepted the evidence of Messrs Cifuentes and Edwards to the extent that the major differences between rural and urban operations are clear - these include,

 for rural officers:
fire prevention;
the type of fire;
building inspections;
the volunteer bases of the Rural Fire Service;
conflict resolution;
funding;
use of private equipment by volunteers;
working times;
negotiation between interest groups; and
the fire warden system.

and for urban operations:
response and training.

Having considered that evidence, we are of the view that there are discrete differences between the rural and urban brigades. Notwithstanding the various policy and administrative processes to which adherence must be given, the real differences in the work performed are those cited in the evidence. In our view, the two groupings are discretely different.

Added to that, there is a clear distinction in that one group of employees is engaged in rural services and the other group of employees is engaged in urban work (this encompasses the work formerly done by the Fire Brigade Boards which were the subject of coverage by the two predecessor organisations of the Respondent)."


This then led to the SOU submitting to the Queensland Parliament Review into the Management of Rural Fire Services in Queensland 2011, that 'Consider integrating the current State Office led Rural Operations into current regional structures'.
This proposed step would have seen the growth of the Senior Officers Union power over Rural Fire Brigades in Queensland.

  • QFES structure based on Deloitte Review?

The new structure of the QFES in Queensland sees the appointment of three Deputy Commissioners reporting to a Commissioner QFES. In a meeting on the 18/06/2014 with the Deputy Commissioner Operational Capability. The RFBAQ queried in this meeting this structure as it was not a recommendation of the Malone Review or the Keelty/PACSR Report.
The RFBAQ was informed that this new structure is an adoption of a recommendation of the Deloitte Review. The RFBAQ was invited to make submission to the Deloitte Review with very short notice on 07/03/2014, and subsequently has requested a copy of the final Deloitte Report.
Our written request for this information requested on 19/03/2014 remains unanswered.
 
What will happen next

  1. Acknowledgement by Kedron that the current centralised system is failing brigades.
  2. Clear legal definition of what is a Rural Fire Brigade, who constitutes it and what powers and responsibilities it exercises.
  3. Clear legal definition of the relationship between QFES, Rural Fire Brigades and the SES.
  4. A re-writing of the Rural Fire Brigade Manual, all Operations Doctrines, Standing Orders and Incident Management protocols reflecting the true position of Rural Fire Brigades and the QFES.
  5. Amendments to the Fire and Emergency Services Act 1990, current as at 01/07/2014 to incorporate Rural Fire Volunteers and truly reflect the role that Rural Fire Brigades and Volunteers undertake.

 
It is demonstrably clear that the small clique of Senior Fire bureaucrats based in Kedron have failed in both their duties of diligence and governance.

The RFBAQ position is that if the Senior Fire bureaucrats based in Kedron are unable to implement these critically necessary matters; then the address by Oliver Cromwell to the Parliamentary Rump in 1653 be heeded by the Queensland State Government to whom these Senior Fire Officers report '

'You have sat too long for any good you have been doing lately. Depart, I say; and let us have done with you. In the name of God Go!'
 

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