Michael Eburn Southern Highlands Region Support Unit Volunteer Media Liaison Officer I’m a volunteer – what’s the law got to do with it?

Dr Michael Eburn Barrister and Associate Professor ANU College of Law I’m a volunteer – what’s the law got to do with it?

Local and Unit controllers Are statutory office holders – (State Emergency Service Act 1989 (NSW) ss 17 and 17A). s17(3) “A local controller is, subject to any direction of the Commissioner or the relevant region controller, responsible for the control and co-ordination of the activities of SES units in the relevant local government area.” s17A(2) “A unit controller is, subject to any direction of the Commissioner, the relevant region controller or the relevant local controller, responsible for the control and co-ordination of the activities of the unit.” This is not a democracy! 1 June 2013NSW SES Southern Highlands Controller's Conference3

A local or unit controller may Grant, suspend or withdraw a person’s membership of the SES. (State Emergency Service Act 1989 (NSW) s 18AA(1). The rules of natural justice must be applied “[W]hen a statute confers power … to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations…” (Castle v Director General SES [2008] NSWCA 231, [49] (Sackville AJA) citing Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ). 1 June 2013NSW SES Southern Highlands Controller's Conference4

Due Diligence You’re in charge, you have to protect the organisations assets and money. Section 25 of the State Emergency Service Act 1989 (NSW) wont help! 1 June 2013NSW SES Southern Highlands Controller's Conference5

Work health and safety A volunteer is a worker – the PCBU (ie the SES) must take reasonable steps to ensure the safety of volunteers. 1 June 2013NSW SES Southern Highlands Controller's Conference6

You are not A PCBU – “A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in… that business or undertaking”, or: (Work Health and Safety Act 2011 (NSW) s 5) An officer – an officer is “a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking” (Work Health and Safety Act 2011 (NSW) s 247) 1 June 2013NSW SES Southern Highlands Controller's Conference7

You are a volunteer worker You must: –take reasonable care of your own health and safety; –take reasonable care that you do not adversely affect the health and safety of others; –comply, so far as you reasonably can, with any reasonable instruction given by the SES; and –co-operate with any reasonable policy or procedure relating to health or safety. (Work Health and Safety Act 2011 (NSW) ss 28, 29 and 34). 1 June 2013NSW SES Southern Highlands Controller's Conference8

WHS and the emergency services Consider: –Workcover v NSWFB ([2006] NSWIRComm 356) –The death of Mrs Hume (Scotland) (Sheriff Desmond J Leslie, Fatal Accident Inquiry … into the Death of Allison Hume [2011] FAI 51) What is reasonably practicable has to take into account the mission. 1 June 2013NSW SES Southern Highlands Controller's Conference9