Changes to occupational health and safety laws and the impact on volunteers in the emergency services

The states and territories have agreed to enact new, nationally consistent workplace health and safety laws. These new laws are based on the Model Work Health and Safety Bill and will come into effect on 1 January 2010. This article compares the positio

Registered Paramedics, Insurance and First Aid – Looking for Coherence in Law

This article challenges the view that professional indemnity insurance is required when paramedics provide first aid at an unexpected accident or medical emergency while not at work. It is argued that an interpretation of ‘practice’ that includes emergency first aid would be inconsistent with the policy of the law reflected in ‘Good Samaritan’ legislation and would be contrary to the public interest. The provisions of the Registration Standard ‘Professional Indemnity Insurance’ are linked to judicial decisions on what it means to practise a profession to demonstrate that an interpretation of ‘practise’ that excludes first aid is consistent with the law. The Paramedicine Board of Australia and the Australian Health Practitioner Regulation Agency should give a clear statement that providing first aid at an unexpected health emergency is not and will not be considered professional practice by an off-duty registered health professional who is at the scene of the emergency, simply by coincidence

Mainstreaming fire and emergency management across legal and policy sectors: Preliminary findings on measures of success

This paper reports on a research project, funded by the Bushfire CRC and conducted at the Australian National University, jointly by the ANU College of Law and the Fenner School of Environment and Society. 'Mainstreaming Fire and Emergency Management across Legal and Policy Sectors: Joint Research and Policy Learning' is looking at the impact of law and policy on emergency and fire management. This paper argues that an absence of clearly defined goals in emergency management policy inhibits our ability to make decisions on what are acceptable trade-offs and makes it impossible to know when Emergency Management goals have been achieved. The paper reports on the research conducted so far and identifies the next steps in the research program

Blue green algae in the Murray Darling Basin: A case for Commonwealth leadership

Climate change is a material threat to Australia's economic, social and environmental interests. Strong emergency management frameworks that enable agile responses to these threats are an important element to ensure a resilient economy. This paper considers recent blue green algae outbreaks in the Murray Darling Basin and considers some of the limitations to effective prevention, preparation, response and recovery. This paper proposes an alternative model that includes the responsibilities of the Commonwealth and the state and territory governments in the management of the basin's resource

A Case Study of Tort Liability for Fire Damage

Gardner v The Northern Territory is a rare exampleof a person suing fire authorities in negligencefor their failure to protect his property from bushfire. This article looks at the allegations that wereraised and why the Northern Territory Court ofAppeal found there was no negligence by theNorthern Territory or its fire fighting authorities.The conclusion is that Courts, when dealingwith the emergency services and the response tounpredictable phenomena such as fire, are willing totry and understand the realities that decision makersface and take into account the complex context inwhich those decisions must be made.“…this Court must be careful not to imposeunreasonable expectations and unreasonable dutieswhich are based more on hindsight and a lack ofappreciation of the practicalities and difficulties thatexist … than a realistic assessment of the care whicha reasonably prudent person would exercise in thesecircumstances”. (Gardner, 2004, [70])Gardner v The Northern Territory is a rare case indeedas it is an example of a person suing fire authoritiesin negligence for their failure to protect his propertyfrom bush fire. The decision in this case gives areassuring message for government authorities, fireservices, and fire fighters everywhere. The NorthernTerritory Supreme Court and then the NorthernTerritory Court of Appeal found that there had beenno negligence by the either the Conservation LandCorporation, the Parks and Wildlife Commission orthe Bush Fires Council. The High Court of Australiarefused to hear a further appeal (Gardner, 2005)

Public Interest in the Balance: Does the Public Policy Discretion work?

The issue of police malpractice is one of historic interest and contemporary importance. It is a thorn in the side of criminal justice that potentially may infiltrate a criminal prosecution to the extent of occasioning a miscarriage of justice and in so doing undermine the fabric of the criminal justice system. The law has responded to this challenge by the declaration of a judicial discretion to exclude evidence improperly or unlawfully obtained where the balance of the public interest requires it. The focus of the public policy discretion is the deliberate or reckless disregard of the law by those charged to enforce it. Despite the articulation and refinement of the public policy discretion, research suggests that exclusion of evidence is largely confined to instances of flagrant breaches of the law. Its objective will continue to be impeded unless the court can receive evidence of past malpractice to determine if there is a pattern of misconduct and whether an alleged breach was intentional, reckless or accidental. This paper will critically examine the public policy discretion, both in its common law and statutory forms, and propose reform of the current law to enhance its effectiveness

Negotiating risk and responsibility through law, policy and planning

The 2011 National Strategy for Disaster Resilience (COAG 2011) sets the context for natural disaster management as a 'shared responsibility' of all sectors of government and society, as part of building a more comprehensive approach to emergency management. However, it remains difficult to change relationships and practices to share responsibility, either between emergency management agencies and other government sectors, or between governments and at-risk communities. This paper reports on the research of three independent but complementary projects established through the Bushfire Cooperative Research Centre to identify the legal, policy and planning structures and processes that could enhance integration of emergency management imperatives across public policy sectors, agencies and portfolios. This article distils and summarises some key conclusions regarding a central, yet seriously under-acknowledged facet, of developing public policy for natural hazard risk in Australia: the political and social negotiation of risk and responsibility. This is an overview paper and many of the issues raised require further exploration

The Potential Role Of The Commonwealth In Responding To Catastrophic Disasters

The research question posed, and considered in this paper, is 'in the absence of legislation, what is the role in, and more importantly what power might the Commonwealth have, when responding and recovering from a catastrophic disaster? Currently the Commonwealth has no overarching or specific counter-disaster legislation. This paper argues that even in the absence of legislation there is Commonwealth power to respond to emergencies within the areas of Commonwealth responsibility. Further there is an inherent power to deal with catastrophic disasters vested in the Crown as part of the prerogative power of the Crown and now incorporated into the Executive Power of the Commonwealth. Exactly what constitutes a 'catastrophic disaster' would be open to debate and, in the absence of legislation, may be the subject of judicial challenge. It is argued that a disaster where a state government is overwhelmed so that the state itself is at risk of collapse and there is no effective state government would be a national catastrophic disaster that would justify Commonwealth intervention in the affairs of the state in order to restore effective state government. What disaster, short of the collapse of state government, would be sufficient for direct Commonwealth action cannot be conclusively defined. In the absence of legislation and a truly catastrophic event, the Commonwealth's authority to exercise national leadership and coordinate Commonwealth, state and private assets will depend on good will and cooperation. The extent of the Commonwealth's executive power cannot be identified until the circumstances of the particular disaster have been identified. Failing to define, in legislation, the role and power of the Commonwealth will leave the Commonwealth to 'cope ugly' with any particular catastrophe. That may be acceptable as it will leave the Commonwealth with adaptive flexibility. It has however been a consistent recommendation of commentators that the Commonwealth should legislate to ensure that the Commonwealth is able to cope with an inevitable catastrophe. The absence of legislation makes it impossible to define, except in the most generic terms, what the Commonwealth's powers ar