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EMERGENCY SERVICES LEGISLATION AMENDMENT BILL 2009

          Emergency Services Legislation
             Amendment Bill 2009

                           Introduction Print

                 EXPLANATORY MEMORANDUM


                                    General

                     Structure and Outline of the Bill
The Bill consists of 4 Parts.
Part 1
This Part sets out the purpose and outline of the Bill, and provides for its
commencement on the day after Royal Assent.
Part 2
This Part amends the Country Fire Authority Act 1958 (the Act).
It comprises 2 divisions.
Part 2--Division 1
Division 1 inserts new Part IIIA into the Act. The new Part is entitled
"Improving Community Safety" and has five Divisions.
         Division 1, comprising new section 50A, inserts definitions into the
         Act for the purposes of these amendments.
         Division 2, comprising new sections 50B to 50D, deals with the duty
         of the Chief Officer to warn the community and provide information
         in relation to bushfires, and nominates persons to whom that duty may
         be delegated.
         Division 3, comprising new sections 50E to 50L, sets out the process
         that will apply to the identification, designation, assessment,
         maintenance and decommissioning of neighbourhood safer places.
         A neighbourhood safer place is defined as "a place that may, as a last
         resort, provide shelter for people from the immediate life threatening
         effects of a bushfire".




561441                                  1     BILL LA INTRODUCTION 10/11/2009

 


 

Municipal councils whose districts are wholly or partially located in the country area of Victoria are required to identify, designate, provide signage, maintain and annually assess the suitability of neighbourhood safer places. They must also advise the Country Fire Authority, of all neighbourhood safer places within their municipal district. The Authority is, in turn required to publish a consolidated list of all of the neighbourhood safer places in Victoria on its website, and provide that list to a number of specified agencies. Municipal councils may prepare a Municipal Neighbourhood Safer Places Plan in relation to the identification, suitability, designation, inspection, maintenance and decommissioning of neighbourhood safer places. Municipal councils are also are required to identify designated neighbourhood safer places in their municipal fire prevention plans under the Act, and municipal emergency management plans under the Emergency Management Act. The Country Fire Authority is required to assist a municipal council in meeting its responsibilities with respect to neighbourhood safer places by assessing the suitability of each proposed neighbourhood safer place referred to it by the council in accordance with the criteria in the Country Fire Authority Assessment Guidelines. The Country Fire Authority may issue updated Assessment Guidelines from time to time. It is recognised that the process for identification and designation of neighbourhood safer places may take some time. Accordingly, councils are required to identify and designate neighbourhood safer places on a "best endeavours" basis up to 1 July 2010. The requirement will be mandatory thereafter. Division 4, comprising new sections 50M to 50O, deals with liability in relation to neighbourhood safer places. The Bill provides that where a designated neighbourhood safer place is on non-council land, any liability for death or injury arising out of its use as a neighbourhood safer place during an actual or threatened bushfire, transfers instead to the municipal council in whose district it is located. This only applies to liability that would attach to the owner, occupier or person with control of the land, and does not apply to death or injury in the course of travelling to or from a neighbourhood safer place. This means that, in the circumstances contemplated by this section, the owner, occupier etc. will not be liable and the council will be. 2

 


 

Liability will transfer whether the duty giving rise to the liability arises in tort, contract, under statute or otherwise, including where the duty arises because of a statutory power of control in relation to the land. Section 2.3.5 of the Education Training and Reform Act is an example of such a statutory power of control in relation to school premises. While the State owns government school premises, the school council has the control of those premises under the Education Training and Reform Act. However, liability will only transfer where it is a liability that arises from a relationship with the land, and not in respect of duties that arise for other reasons (for example, the duty of a teacher to a pupil). Liability for intentional torts like assault will not be transferred. The Bill provides for a policy defence for councils, similar to the policy defence in the Road Management Act, in relation to two kinds of proceedings, those arising from death or injury caused by the use of a neighbourhood safer place, and those arising from death or injury from a council's failure to designate a neighbourhood safer place. The council can raise the defence that it acted (or omitted to act) in accordance with a policy in its Municipal Neighbourhood Safer Places Plan, and that the policy was not so unreasonable that no reasonable council in its position could have made that policy. Division 5 provides a power for the Chief Officer to advise the community or any person on ways to improve the defendability of a home or other building in the event of a bushfire. It also amends section 55 of the Act to require the recording of identified neighbourhood safer places and community fire refuges (if any) in municipal fire prevention plans, and, if no neighbourhood safer places have been identified to also record that fact. Part 2--Division 2 Division 2 provides for the Volunteer Fire Brigades Victoria (VFBV) to be represented on the Board of the Country Fire Authority. This body is the single unified representative association for all Country Fire Authority volunteers. It also inserts transitional provisions into the Act, so that neighbourhood safer places assessed and designated before the Act commences are deemed to be designated neighbourhood safer places under the Act, and also to provide for the continuation of the Country Fire Authority as the same body, notwithstanding the changes to its membership made by this Act. Part 3 Part 3 amends the Emergency Management Act (the EM Act) to clarify the arrangements for control of fires under section 16 of that Act. 3

 


 

The Current Arrangements Section 16 of the EM Act currently provides for the chief officers of the three fire agencies to agree to appoint an officer of one of their agencies to have overall control of fire response. This can be done either at the request of an emergency co-ordinator, or of their own volition, and the appointment can be made in relation to a fire that is burning or one which may occur. At the scene of the fire, any officer appointed under these arrangements can exercise the powers of the Chief Officer of the Country Fire Authority. The Chief Commissioner's Review The Chief Commissioner of Police has recently completed a review of the command and control arrangements that exist in relation to the control of fires. Amongst other matters, the review recommends that the fire agencies adopt a single hierarchy of control for fire emergency response, comprising-- · a State Controller; · Area of Operations Controllers subordinate to the State Controller, each with responsibility for a specified geographic area of operations; and · Incident Controllers, subordinate to an Area of Operations Controller, each with responsibility for specific fire incidents. This hierarchy of control will apply to all of the agencies, essentially providing a single integrated line of control for the purpose of fire emergency response. The Amendments Made by the Bill To support these arrangements, the Bill amends the Act to-- · provide that the fire control agencies may appoint an officer of an agency (including the Chief Officer of an agency) to have the overall control of response activities to a fire that is burning, may occur or has occurred in any area that is specified by the chief officers. As under the current Act, this appointment can be made by the agencies at their own volition, or at the direction of an emergency co-ordinator; · provide that a person so appointed may exercise the powers of the Chief Officer of the Country Fire Authority in relation to the control of response activities in relation to the fire for which he or she was appointed; and · allow for a person who has been appointed by this method to appoint one or more assistant controllers for the fire or transfer control of response activity to one or more other persons. 4

 


 

These amendments make it clear-- · that a person appointed by the agencies as (for example) State Controller, can appoint assistant controllers or other persons to assist in response to a fire; and · that the section 16 appointment arrangements apply in respect of fires that have already occurred, as well as those that are threatened or still burning. Part 4 repeals the amending Act on the first anniversary of its commencement, but the Interpretation of Legislation Act provides that the amendments themselves continue in force. Clause Notes PART 1--PRELIMINARY Clause 1 sets out the main purposes of the Bill. Clause 2 provides that the whole of the Bill commences on the day after it receives Royal Assent. PART 2--AMENDMENTS TO THE COUNTRY FIRE AUTHORITY ACT Division 1--Improving Community Safety Clause 3 inserts a new Part IIIA into the Country Fire Authority Act 1958 (the CFA Act). Division 1--Definitions New section 50A inserts definitions of community fire refuge, council land, designated neighbourhood safer place neighbourhood safer place, non-council land and place into the CFA Act. Division 2--Duty to warn community New section 50B imposes a duty on the Chief Officer to issue warnings and provide information in relation to bushfires in Victoria, for the purpose of protecting life and property. New section 50C provides that, in carrying out this duty, the Chief Officer must have regard to any guidelines, procedures and operating protocols issued by the Country Fire Authority in respect of that duty. It also provides that, in developing any such guidelines, procedures and protocols, the Country Fire Authority 5

 


 

must consult with the other Victorian agencies responsible for fire suppression, being the Metropolitan Fire and Emergency Services Board and the Department of Sustainability and Environment (through the Secretary to that Department). The section also allows for other agencies that are to be consulted to be prescribed by regulation. New section 50D allows the Chief Officer to delegate the duty to warn etc., under section 50B to the Chief Officer of the Metropolitan Fire and Emergency Services, the Secretary to the Department of Sustainability and Environment, the Chief Fire Officer of the Department of Sustainability and Environment or any other prescribed person. This will enable the Chief Officer to issue a delegation allocating responsibility to the Secretary or the Chief Fire Officer of the Department of Sustainability and Environment or the Chief Officer of the Metropolitan Fire and Emergency Services, where that agency is the control agency for a fire. The section allows for the delegated power to be sub- delegated, and for other personnel and agencies to whom the power may be delegated to be prescribed by regulation. This will enable the effective exercise of the delegated power within the agency with control responsibility for the fire. Division 3--Neighbourhood Safer Places New section 50E provides that the Country Fire Authority may from time to time issue the Country Fire Authority Assessment Guidelines setting out criteria for assessing the suitability of neighbourhood safer places. These Guidelines will be used by the Country Fire Authority both for the initial assessment of a neighbourhood safer place under new section 50G and the annual re-assessment under new section 50J. The Guidelines can incorporate or refer to other material, and must be published not only in the Government Gazette, but also on the Country Fire Authority website. New section 50F provides that a municipal council may prepare a Municipal Council Neighbourhood Safer Places Plan in relation to the identification, designation, suitability, inspection, maintenance and decommissioning of neighbourhood safer places. The Plan must not be inconsistent with the Country Fire Authority Assessment Guidelines, and can incorporate or refer to other material. The council must publish its Plan on its website, and make the Plan and any incorporated documents available for inspection free of charge at its municipal offices. New section 50G sets out the process that is to apply to the identification and designation of neighbourhood safer places. 6

 


 

Subsection (1) provides that the obligation to identify and designate neighbourhood safer places applies to a municipal council with a municipal district that falls wholly or partly within the "country area of Victoria" (as already defined in the Act). Subsection (2) provides that a neighbourhood safer place may be located on council land, or with the consent of the occupier or the person in control of the land, on non-council land. The reference to "control" in this context applies to control whether by statute or other means. For example, a State school is under the control of the school council pursuant to the Education and Training Reform Act. Subsection (3) provides that in identifying and designating neighbourhood safer places, a municipal council may have regard to its Municipal Council Neighbourhood Safer Places Plan. Subsection (4) provides that once a council has identified a neighbourhood safer place, it must ask the Country Fire Authority to assess that place in accordance with the Country Fire Authority Assessment Guidelines. Subsection (5) provides that the Authority is required to comply with the request, assess the place, and, if the place meets the criteria in its Guidelines, the Authority must certify compliance in writing. Subsection (6) provides that a council must not designate a neighbourhood safer place unless the Authority has certified it under this section. Subsection (7) provides that a council is not required to designate a place as a neighbourhood safer place in its municipal district if-- · no place has been certified by the Country Fire Authority as meeting the criteria in its Assessment Guidelines; or · the Authority has certified a place as meeting the criteria but the council is satisfied on reasonable grounds that it is not appropriate to designate it as a neighbourhood safer place. The grounds on which a council might make such a decision would include matters such as ease of access to the place; or · any suitable existing place is on non-council land and the occupier or person in control of the land does not consent to its designation as a neighbourhood safer place. 7

 


 

Subsection (8) provides that before 1 July 2010, a council is required to use its best endeavours to identify and designate neighbourhood safer places. After that time, however, it will be mandatory for a council to do so. New section 50H requires a municipal council to ensure that appropriate signs are provided to identify neighbourhood safer places to the public. In ensuring the provision of appropriate signage, a council must have regard to the signage guidelines published by the Office of the Emergency Services Commissioner. These guidelines will be published on the OESC web site. New section 50I provides that a municipal council is responsible for maintaining all designated neighbourhood safer places in its municipal district. New section 50J sets out the process whereby each municipal council must review the suitability of each designated neighbourhood safer place within its district annually, with the assistance of the Country Fire Authority. The process is similar to that for the initial designation of neighbourhood safer places in 50G. Subsection (1) provides that the review must be conducted by 31 August in each year. Subsection (2) requires the municipal council to ask the Country Fire Authority to assess each neighbourhood safer place in its district in accordance with the Country Fire Authority Assessment Guidelines. Subsection (3) provides that the Country Fire Authority must, on receiving such a request, conduct the assessment, and if the place still meets the criteria in the Assessment Guidelines, certify compliance in writing. Subsection (4) provides that if the Authority's assessment determines that a designated neighbourhood safer place is no longer suitable, the council must decommission it. Subsection (5) provides that the council may also decommission a designated neighbourhood safer place if the Authority has certified it; but, on other reasonable grounds, the council is satisfied that the place should not continue to be designated as a neighbourhood safer place, or the occupier or person in control of the land has withdrawn consent for its use as a neighbourhood safer place. 8

 


 

New section 50K requires the municipal fire prevention officer of the council to give the Country Fire Authority an up to date list of all designated neighbourhood safer places and designated community fire refuges in the municipal district, by 30 September each year. New section 50L(1) requires the Country Fire Authority to keep a list of all of the designated neighbourhood safer places and community fire refuges in Victoria of which it has been notified. New section 50L(2) requires the Authority to publish that list on its Internet site, and to provide a copy to-- · the Secretary to the Department of Sustainability and Environment; · the Chief Commissioner of Police; · the Chief Executive Officer of the State Emergency Service; · the Municipal Association of Victoria; and · for the use of the Victorian Bushfire Information Line. Division 4--Liability in relation to designated neighbourhood safer places New section 50M clarifies that the provisions of Division 4 do not derogate from Part XII of the Wrongs Act 1958 in relation to the liability of public bodies. New section 50N deals with the transfer of liability from the owner, occupier or person with control of the land on which a neighbourhood safer place is located to the municipal council in whose district the neighbourhood safer place is located, in certain circumstances. New subsection (1) provides that section 50N applies in respect of a designated neighbourhood safer place. New subsection (2) provides for the transfer of any liability for the death of, or injury to, a person arising from the use of a designated neighbourhood safer place, from the owner, occupier or a person with control of the land to the municipal council in whose district the land is situated. 9

 


 

New subsection (3) provides that the transfer of liability will apply only in respect of a death or injury that arises from the use of a neighbourhood safer place as a shelter from bushfire (whether threatened or actual). New subsection (4) provides that the transfer of liability does not apply to a death or injury that was caused in the course of travelling to or from a designated neighbourhood safer place. New subsection (5) provides that a reference to liability in subsection (2) is a reference to liability arising in tort, contract statute or otherwise, and is not a reference to liability arising from a death or injury that was the result of an intentional act of a person at the place. The liability referred to includes liability flowing from a duty arising because of a statutory power of control over the land. New section 50O provides for a "policy defence" for municipal councils. The policy defence will be available in two kinds of proceedings for the death or injury of a person. The first kind is where that death or injury arose from the use of a designated neighbourhood safer place for its designated purpose. The second kind is where the death or injury arose from the failure of a municipal council to designate a neighbourhood safer place. An act or omission by a municipal council in accordance with a policy in its Municipal Council Neighbourhood Safer Places Plan, is not a wrongful act or omission, provided the policy itself is not so unreasonable that no reasonable council in that council's position, acting reasonably, could have made that policy. Division 5--Advice on defendability of buildings New section 50P inserts a specific provision in the CFA Act allowing the Chief Officer of the Country Fire Authority to provide advice to the community or to any individual on ways to improve the defendability of a home or other building in the event of a bushfire. Clause 4 inserts new sections 55A(2)(ca) and (cb) into the CFA Act requiring municipal councils to identify all designated neighbourhood safer places in the municipal district in their municipal fire prevention plans, and to designate any community fire refuges in the district. If no neighbourhood safer places have been designated, the municipal council is also required to record that fact in the municipal fire prevention plan. 10

 


 

Division 2--Role of Volunteer Fire Brigades Victoria Incorporated Clause 5 amends sections 7(1)(b) and 7(1)(c) of the CFA Act to replace references to the governing bodies of the Victorian Urban and Rural Fire Brigades Associations with the Board of Volunteer Fire Brigades Victoria Incorporated. The amendment allows four volunteer members to be appointed to the CFA Board from nominations from the VFBV Board, with two members taken from urban and rural brigades respectively. This amendment reflects that there is now one unified representative association for all CFA volunteers from urban and rural brigades. Clause 6 substitutes a new section 100 of the CFA Act to reflect that Volunteer Fire Brigades Victoria Incorporated (VFBV) will represent members of all CFA urban and rural brigades. New subsection (1) provides that the role of the VFBV is to enable members of non-industry brigades to alert the CFA of all matters affecting their welfare and efficiency, other than questions of discipline and promotion. New subsections (2) and (3) provide that, other than the CEO, executive officers or member of staff, an officer or official of the VFBV must be a registered volunteer. New subsection (4) amends section 100(2) of the CFA Act to allow VFBV members to claim from the CFA personal and travelling expenses incurred in relation to their attendance at meetings with the CFA and VFBV meetings approved by the CFA. In accordance with the new structure and arrangements of the VFBV, it is not practical to specify the limit of the number of members in attendance as currently set out in section 100(2) of the CFA Act. New subsection (5) is an enabling section intended to allow the CFA to provide and fix limits, in the regulations, for payment by the CFA of the expenses incurred in accordance with new subsection (4). New subsection (6) clarifies that section 100 of the CFA Act overrides the Associations Incorporation Act 1981 and the rules or constitution of the VFBV. Clause 7 amends section 101 of the CFA Act by substituting "the said associations" with "the Volunteer Fire Brigades Victoria Incorporated" to reflect that there is one unified association. 11

 


 

Clause 8 inserts transitional provisions into the CFA Act. New section 115 provides that a neighbourhood safer place that has been certified by the Authority as suitable, and designated by the municipal council and inserted in the municipal council's-- · fire prevention plan under the Act; or · municipal emergency management plan under the Emergency Management Act; or · township protection plan-- is taken to be a designated neighbourhood safer place under Part IIIA of the Act. New section 116 provides that the Country Fire Authority is the same body despite the changes to its constitution made by clauses 5, 6 and 7 of the Bill. PART 3--AMENDMENTS TO THE EMERGENCY MANAGEMENT ACT Clause 9 substitutes sections 16(1) and 16(2) and inserts new sections 16(1A), 16(2A) and (2B) of the Emergency Management Act 1986. New subsection (1) provides that the chief officers of the agencies responsible for the suppression of fire may at the request of a co-ordinator or of their own volition, by agreement appoint the chief officer or an officer of one of the agencies to have the overall control of response activities in relation to a fire-- · which is burning; or · which may occur; or · which has occurred-- in any area specified by the chief officers. New subsection (1A) provides that in the absence of such agreement, the co-ordinator may direct that an appointment be made. New subsection (2) provides that any officer appointed under sections 16(1) or 16(1A) may exercise the powers of the Chief Officer of the Country Fire Authority in relation to the control of response activities in relation to the fire for which he or she was appointed. 12

 


 

New subsection (2A) provides that an officer appointed under subsection (1) or (1A) may appoint one or more assistant controllers or transfer control of any response activity to one or more persons. New subsection (2B) provides that an appointment of an officer under subsection (1) or (1A) has effect for the period specified in the instrument of appointment. Clause 10 amends section 20 of the Emergency Management Act 1986 to insert new sections 20(2)(ba)(i) and 20(2)(ba)(ii). New section 20(2)(ba)(i) provides that in the case of a municipal district that is wholly or partly within the country area of Victoria, a municipal emergency management plan must contain provisions identifying all designated neighbourhood safer places in the municipal district, or if no places have been designated as neighbourhood safer places, record that fact. New section 20(2)(ba)(ii) provides that the plan must also designate any community fire refuges within the meaning of Part IIIA of the Country Fire Authority Act. PART 4--REPEAL OF AMENDING ACT Clause 11 provides for the repeal of this Act on the first anniversary of its commencement. The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 13

 


 

 


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