This question comes from a volunteer with NSW RFS:
I was deployed to SA riverland fires recently, as the captain of a brigade, one of the crew asked if our authority issued under sections 29 and 31 of the Rural Fires Act 1997 are valid when interstate. Our RFS issued authority card says we are authorised to:
• Enter premises without notice in circumstances specified in service standard 1.3.2;
• Use reasonable force to enter any premises in the circumstances as specified in service standard 1.3.2; and
• While on premises exercise the power conferred upon the bearer by sections 22 to 31 of the Rural fires Act and service standard 1.3.2
Thank you for opportunity to clarify this.
Section 23 of the Rural Fires Act says “An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act”. Sections 29 and 31 detail the process to be followed when exercising that power. Section 29 provides details of when notice must be given, or need not be given; section 31 allows, in prescribed circumstances, the use of ‘reasonable force’ to gain access to premises.
Do any of these authorities apply when fighting a fire in South Australia? The answer is ‘no; the NSW Act cannot give authority to enter premises in South Australia’ (well it can, a bit, but I’ll get back to that).
To keep the analysis simple, I’m going to assume that the Country Fire Service was the control agency (Emergency Management Act 2004 (SA) s 20) and that the fires were not a declared major incident, major emergency or disaster (ss 22-24; not that I think that would make any difference to the answer).
The answer to this question is found in the Fire and Emergency Services Act 2005 (SA) s 146. That section says, in full:
(1) A member of a recognised interstate organisation who is present at the scene of a fire or other emergency in this State may, if there is no officer of an emergency services organisation in control of operations to deal with the fire or other emergency, exercise any power vested in an officer of an emergency services organisation under this Act.
(2) In this section—
“recognised interstate organisation” means an organisation formed outside this State and declared by the Commission or a Chief Officer of an emergency services organisation, by notice published in the Gazette, to be a recognised interstate organisation.
The New South Wales Rural Fire Service is a ‘recognised interstate organisation’ (SA Government Gazette 17 January 2008, p 246). So an RFS crew, operating in South Australia without a member of the SA emergency services present, has the powers of a South Australian fire fighter. Those powers are set out in the Fire and Emergency Services Act 2005 (SA) s 97.
So what did I mean when I said ‘well it can, a bit’? The NSW Act still governs your operations to this extent. First you have to be a member of the RFS and so it’s the RFS Act and regulations etc that all determine that you are a member and what you can do; that is as a member of the RFS, even though your operating in South Australia, you’re still bound by the code of conduct and ethics and the other Service Standards. Further your membership will be limited by its limits in NSW, so for example, assume that the RFS does not allow you to use a chain saw unless you have completed the necessary training and you have not completed that training; just because s 97(2)(b) says you can ‘remove or destroy … any … vegetation’ that would not allow you to use a chain saw in SA when you are not trained in its use.
That doesn’t apply to s 29 of the NSW Act. Section 29 starts by saying ‘A person authorised to enter premises under this Division may enter the premises without giving notice…’ When operating in SA you are not ‘authorised to enter premises under this Division’, rather you are authorised by virtue of the Fire and Emergency Services Act 2005 (SA) ss 97 and 146. In that case s 29 doesn’t apply, rather s 97(6) of the South Australian Act applies; it says “A member of SACFS must, before taking any prescribed action with respect to private land … (a) consult with the owner or person in charge of the land or reserve if that person is in the presence of, or may be immediately contacted by, the member of SACFS…’
It is not so clear with respect to s 31. That sections says
Reasonable force may be used for the purpose of gaining entry to premises but only if the Commissioner:
(a) has authorised in writing the use of force in the particular case, or
(b) has specified in writing the circumstances that are required to exist before force may be used and the particular case falls within those circumstances.
That could be applied in South Australia. There is the power to enter land (s 97(2)(1) and that is a power to use force. Is the requirement that the NSW Commissioner authorise his or her staff before they use force akin to saying they must be trained before they exercise a task? It is not inconsistent ie it is possible to comply with both provisions – an RFS member may use force (Fire and Emergency Services Act 2005 (SA) s 97(2)) but only if authorized by the RFS Commissioner (Rural Fires Act 1997 (NSW) s 31). Without being able to point to any linguistic necessity, or case law on the point, I would suggest that is not the interpretation that would or should apply. The NSW Commissioner is not in control of any aspect of the SA operations (though he remains, ultimately, ‘in command’ of the RFS members). The members of the RFS are not exercising any powers under the RFS Act, rather they are exercising powers under the South Australian Act.
Further, remember that s 146 only applies in the absence of a SA emergency services officer. That may be the case if, say, a brigade from Broken Hill has crossed the SA border but that is really unlikely. Where the RFS is proceeding to assist the CFS then they are acting under the command of the CFS officers, ultimately the incident controller. If there is a South Australian officer present, or the RFS are acting under their direction, then it is the SA officer who is exercising the power, so if for example, the incident controller directs the RFS brigade to break into land in order to fight the fire, then the relevant question is what authority did the IC have, and that authority is undoubted. Where a South Australian officer has power to enter the land, so does anyone ‘acting under the command of [the] officer’.
So, in short:
1. The power to enter premises, or do other things, lies in the legislation in the state in which you are operating, in this case the Fire and Emergency Services Act 2005 (SA) s 97.
2. Where the RFS are operating alone, that is in the absence of a South Australian emergency services officer, they can exercise those powers, not the powers contained in the RFS Act (Fire and Emergency Services Act 2005 (SA) s 146).
3. Where the RFS are operating with or under the command of a South Australian officer, the issue does not arise as it is the SA officer who will authorise entry or otherwise ‘exercise’ s 97 powers. Where there is a power the person who holds the power doesn’t have to personally attend to it (the IC has the power to direct the movement of persons (s 97(2)(f)) but that doesn’t mean he or she has to stand at every street corner, he can direct others, including the members of the RFS to do that task).
I hope that helps.
Michael Eburn.
Australian Emergency Law 
IMHO, This appears to be a strange question with regards to some aspects. Whilst as a visiting RFS member, you would be acting under the authority of the incident controller. We are talking about major bushfires aren’t we. We’re not talking about being responded to day-to-day incidents are we. This would be similar to an RFS brigade attending an incident locally without a field officer on board. The FCO or a delegate would authorise actions to be taken. Also, powers under the Rural Fires Act don’t apply when we do storm damage work when assisting SES (NSW) and the incident is under their Act. I would be curious as to the age of the person and their years as a field officer. If have been a SDC, Captain & Group Captain for 20 years. Also, if we talking about a border brigade, they would be working under a MOU & MAA for day-to-day incidents, not dissimilar than what exists between the RFS & FRNSW. This could also be a problem with deployments. Some years ago we had interstate firies on our trucks, but we had a local on each truck also.
Shane, I don’t think it was a strange question, but I agree that the visiting RFS are acting under the authority of the IC. Yes the issue was major interstate assistance but there is the potential for agencies simply to cross borders, not so much between NSW and SA but certainly, say, between Victoria and NSW and Queensland and NSW; in either event is the law of the state in which the service is operating that governs their operations. So you’re right in the answer, but the fact that my correspondent, on behalf of his members, wanted clarification is ok. Remember that the only silly (or strange) question is the one you don’t ask; and I hope that by giving an answer with reference to the law it helps with everyone’s understanding.
And it’s not so as simple either that ‘powers under the Rural Fires Act don’t apply when we do storm damage work when assisting SES (NSW) and the incident is under their Act’. Section 22 of the Rural Fires Act says
“An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of … protecting persons, property or the environment from an existing or imminent danger arising out of … [any] emergency:
(a) exercise any function conferred on the officer by or under this Act, or
(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.”
An emergency is ‘an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which: (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response’ (State Emergency and Rescue Management Act 1989 (NSW) s 4; Rural Fires Act 1997 (NSW) s 4(2)). Section 22 says ‘The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of … [an] emergency to be closed to traffic.’
There’s no reason why the RFS couldn’t rely on s 22 if, say, the crew thought a road was too dangerous and wanted to close it and could not get hold of the IC to get authority. Now we may be getting pedantic here, the reality is that if they close the road because it’s dangerous no-one’s really going to ask by what authority might they close it and, I’ve noted before, you don’t really need authority to close a road that’s posing a danger to passers by (see Assisting NSW police with road closures and the comments attached to that post) so the point may be more hypothetical than real, but it is at least possible in fact necessary for powers under the RFS Act to be applicable even say, when assisting the SES because the clear intention is to authorise action; if an RFS team didn’t take action in the presence of an immediate threat to life and danger, because they felt they needed the approval of the SES, that would lead to tragedy. That is part of the ‘all hazards all agencies’ response; the SES may be in charge and setting the intent of the response, even allocating roles to the RFS but it’s ‘all agencies’ if the RFS, or the police, or NSWFR find themselves in a situation that calls for immediate action they have the power. We could find the relevant power in a multitude of places, in this example relevant powers would be in the SES Act, the RF Act, the SERM Act and common law – the advantage of that being that no-one should be in doubt that they can act to save a life if they need to.
1 I thought it strange question for a seasoned volo, thats why i asked his age or years experience. I obviously wouldn’t have asked the question.
2 I agree with the SES thing, that’s why I said some aspects. I have done the road closure etc where necessary, especially during the Pasha storm. My point was to be that there are different acts for different circumstances. Eg being the protection of employees rights which applies at times to many emergency services but under the SERM Act.
I understand you’re looking at it from a legal view, whereas I’m looking at it from a educated layman view which I suppose is good enough to answer the question 99% of the time.
In the end, I need to justify my actions, no matter under what the legislation.
On another point, I know the SA legislation recognised interstate firies, but how does this go with authorities, as our authority is issued in and for NSW. Thats why is said he would be basically working under the local Incident Controllers authority.
Thanks Shane, and your right, the educated layman’s answer is right most of the time and certainly a good enough working answer. As for the authorities, the authority to act, when working interstate, comes for the interstate legislation in this case South Australia’s Fire and Emergency Services Act.
I will concede that I am not versed with SA law, trying to keep up with NSW is bad enough. I have learnt a few things from this although, and am not expecting an answer, but as in most legislation, it’s fine until it has been tested and while it is written with the best intent, there is always someone out there willing to test legislation when they think they’ve been wronged.