This question comes from a volunteer with the NSW RFS. I wrote my original answer late on 24 January 2015. I received a comment on that answer from RFSguy who drew my attention to section 21(2)(iii) of the Rural Fires Act (1987), a section I’d missed when drafting my first response (so lesson learned, don’t try to do this at midnight). This post is different from that original post as it incorporates that section and, at the end, reproduces the useful comment from RFSguy. The original question was::

I am an officer in an RFS brigade that shares borders with a FRNSW retained station. Recently whilst on our way to refuel our cat 1 at our local service station we came across an escaped (illegal) pile burn within the FRNSW Fire district. We attempted to advise Firecom of the incident so they could let FRNSW know about the incident and respond accordingly but due to poor radio reception in the area we were unable to make contact with Firecom.

There was an imminent risk of the fire burning onto neighbouring properties and potentially impacting on some sheds etc so I instructed my crew to extinguish the fire. We were initially greeted with significant hostility from the landowner, who only relented and allowed us access to the property and the use of his dam for water supply once I presented my authority card and advised him i had the authority to enter his property and use the water to put out the fire under the rural fires act.

Once the fire was extinguished we continued on to the service station, where I was able to get radio reception and advised Firecom of the incident. Upon returning to our station I was greeted by the captain of the local FRNSW station who was most unimpressed about how we had dealt with the incident, and accused us of “stealing” his jobs. He told us that our actions were in direct violation of the MOU between the services and that as a volunteer officer I had no authority to operate or use any of my powers under the rural fires act within FRNSW district without his express permission and that he would be taking the matter further.

As a result of this event I have the following questions I was hoping you could clarify.

1) Were our actions contrary to the MOU between the services? I would think common sense would say that if are in a fire truck and come across a fire you should stop to put it out. I certainly would not be annoyed if FRNSW took the same actions my crew took if they came across a fire within RFD.

2) Under the circumstances outlined above am I able to use my powers under the rural fires act within FRNSW fire district or do I need express permission from FRNSW?

3) If I am not allowed to use my powers under the Rural Fires Act without permission of FRNSW, have I now exposed myself to any legal risks or disciplinary action as a result of using my powers under that act to gain access to the property and use the water in the landowners dam?

Any clarification you can provide on the above or anything else you think relevant would be appreciated.

I can’t comment on the MOU as I don’t have access to it and I understand that there are MOU’s between the services at local rather than state level so there may be differences across the state.

I do note however that NSW RFS Service Standard 2.3.2 Assistance to Other Agencies (v 2, 10 October 2013) says, at [2.3]:

At an incident that would normally be under the control of another combat agency, members of the NSW RFS may, in the absence of that agency, take any reasonable urgently needed actions within their capability to safely protect people and things that people value until that agency arrives and takes control.

Political reality

The RFS and FRNSW are both state run fire agencies. They are established by the state to provide a service to the community. I can’t imagine the Minister or the community would tolerate anyone saying ‘I didn’t put the fire out, even though I was an officer with a fire service, commanding a trained crew with an equipped appliance, because it wasn’t ‘our’ job’.     Putting it that way I think demonstrates the fallacy of the idea that any service ‘owns’ the job.   Modern day emergency management is meant to reflect an ‘all hazards, all agencies’ approach that should avoid ‘turf wars’. Let us then consider the legislation.

The legislation

The Rural Fire Service (RFS) is established by the Rural Fires Act 1997 (NSW). One of the objects of the Act is to provide ‘for the protection of persons from injury or death, and property from damage, arising from fires’ (s 3(c)). To this end the RFS is to ‘provide rural fire services’ in proclaimed rural fire districts (ss 6 and 9(1)(a)) and to assist the other emergency services, including Fire and Rescue NSW (FRNSW) (s 9(1)(b)). Officers of brigades are given significant powers in order to perform their duties and to take effective measures to control fires; this includes a power to enter premises (s 23).

Section 21(2) says:

An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:…

(a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district-with the approval of an officer of Fire and Rescue NSW.

It follows that, prima facie, an officer of the RFS does need express permission from FRNSW before they exercise their powers (s 21(2)(iii)).

RFSguy has added “Now (ii) refers to a plan made under s52 where a BFMC has to prepare a plan- the BFMC includes all local agencies.”  I can’t access the particular BFM plan, but the Bushfire Coordinating Committee Policy No 2/2006 Management of Bushfire Operations (http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0010/9586/Policy-2-2006-Management-of-Bush-Fire-Operations.pdf) provides guidance for Bushfire Management Committees.  It says:

Any fire fighting authority may make the first response to a bush fire. This responding fire fighting authority will take immediate steps to advise the land manager and relevant fire fighting authority in whose area the fire is burning, or will advise in accordance with any Memorandum of Understanding or Mutual Aid Agreement, of action being taken.

For each local area there should be a local emergency management plan prepared by the Local Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) ss 27-32).   A function of the Committee is to ‘ facilitate local level emergency management capability through inter-agency co-ordination, co-operation and information sharing arrangements’ (s 29(1A)(e)).

Common law

Anyone can extinguish a fire if they can. There is no need for specific legal authority (Stephens v Stephens (1970) 92 WN(NSW) 810).

The common law of necessity has allowed interference with private property to act in the public interest since the 1500s. If the fire was posing a risk to community assets, a town or infrastructure, the common law could be relied upon to justify entering the land to act in the public interest. In 2008 Chief Justice Gleeson, along with Justices Gummow, Kirby and Hayne said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales [2008] HCA 26, [40]).

Necessity is a defence to both crimes and torts.

Application

We can now return to the questions asked:

1) Were our actions contrary to the MOU between the services?

I can’t answer that as I can’t access the MOU but it appears that the actions were consistent with RFS Service Standard 2.3.2 Assistance to Other Agencies. The actions would also appear to be consistent with the intention of any local bushfire management plan and one would expect, the local emergency management plan.

I would think common sense would say that if are in a fire truck and come across a fire you should stop to put it out. I certainly would not be annoyed if FRNSW took the same actions my crew took if they came across a fire within RFD.

I agree and as noted above, no-one from the Community to the Minister would be impressed with a response of ‘we didn’t put the fire out because it was in a fire district, not a rural fire district’. Also, as noted above, you don’t need specific authority to extinguish a fire so taking action to extinguish the fire is not exercising powers under the Rural Fires Act or any other Act.

2) Under the circumstances outlined above am I able to use my powers under the rural fires act within FRNSW fire district or do I need express permission from FRNSW?

There is room for ambiguity here as the RFS is to provide fire services within a rural fire district but, as noted, ‘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’ (s 23).   It is a function of the RFS to protect people and property from damage by fire (s 3(c)). Further, ‘An officer of a rural fire brigade or group of rural fire brigades may for the purpose of controlling or suppressing a fire: (a) take and use without any payment any water from any source on any land…’ (s 26(1)). None of these provisions refer to a fire burning within a rural fire district.

Section 21(2)(iii) however, does say that the approval of FRNSW is required but that approval does not need to come from the local captain but can be delivered by standing arrangements between the services reflected in a local MOU, Bushfire Management Plan or Local Emergency Management Plan.

3) If I am not allowed to use my powers under the Rural Fires Act without permission of FRNSW, have I now exposed myself to any legal risks or disciplinary action as a result of using my powers under that act to gain access to the property and use the water in the landowners dam?

Arguably, you didn’t use your powers.

‘We were initially greeted with significant hostility from the landowner, who only relented and allowed us access to the property and the use of his dam for water supply once I presented my authority card and advised him i had the authority to enter his property and use the water to put out the fire under the Rural Fires Act’

The landowner ‘allowed’ access and if one is allowed in there is no problem. But we can infer that the landowner believed he or she had no choice. If it is accepted that there was an exercise of the powers granted by the Act then one could argue that without express approval under s 21(2)(iii) the action was not authorised. In the circumstances described however no court would be interested in the application on the basis that there was no harm done. If you had physically restrained the landowner and broken locks to enter the situation may have been different. The outcome would depend on the circumstances but the provisions of the Rural Fires Act and the common law of ‘necessity’ would appear to provide ample defence.

See also ‘Entering private land to fight a bushfire in NSW‘ (June 16, 2013).

RFSguy’s comments

I acknowledge that my original post was incomplete and I thank RFSguy for his comment, which I set out here.

Michael, how about S21?

“(2) An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:

(a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district-with the approval of an officer of Fire and Rescue NSW.”

Now (ii) refers to a plan made under s52 where a BFMC has to prepare a plan- the BFMC includes all local agencies.

The standard wording of the plan says “Any firefighting authority may make first response to any reported fire on any land.”

The key word may be “reported,” but I’d suggest that the intent is more about ensuring that anyone can put out any fire they need to.

I hope that volunteers understand that they can get this sort of answer from their local office, or failing that, from RFS HQ.