A correspondent says:

Recently we had a large bush fire burning in our area, the local NSWRFS team were under S44. We then had a scrub fire in our area (FRNSW) and had assistance from the local NSWRFS at the job. One of the group officers stated they were in charge due to the S44. I don’t understand how that works, when they were responded in to FRNSW area. I thought that in FRNSW area the fire brigades act would overrule the Rural Fires Act.

The Rural Fires Act 1987 (NSW) s 44 says:

(1) The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:

(a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or

(b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or

(c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or

(d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

(2) The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to an officer or member of a rural fire brigade, a person employed in Fire and Rescue NSW, a person employed in the Department of Industry, Skills and Regional Development, a person employed in the Office of Environment and Heritage or any other person.

Section 44 falls within Part 3 of the Act. Part 3 is headed “Co-Ordinated Bush Fire Fighting”.

With respect to the scenario painted by my correspondent it’s impossible to say whether the scrub fire fell within the s 44 declaration without seeing the declaration and identifying the area where it applied. If it applied to a particular fire, the subsequent scrub fire may have been a different incident and outside the s 44. On the other hand if the declaration applied across the local government area then any bush fire in that area would be caught by the s 44.  It’s impossible to say what the extent of the s 44 declaration is without seeing the declaration.

What one can say, in general terms, is that where a s 44 declaration is made ‘The Commissioner is to take charge of bush fire fighting operations…’  In the normal course of business, the RFS is responsible for providing fire services within a rural fire district (Rural Fires Act 1997 (NSW) s 9) whilst Fire and Rescue NSW is responsible for providing fire services in a fire district (Fire Brigades Act 1989 (NSW) s 6).  When, however, Part 3 of the RFS Act is activated, that is during a s 44 incident, the scope of operations for the RFS is extended ‘throughout the State’ (s 9(4)).  The whole point is to ensure coordinated firefighting and to allow for the appointment of an incident controller who is best qualified to manage the incident without regard to where the fire is burning or whose ‘area’ the fire is in.

In short when a s 44 declaration is made, the Rural Fires Act overrules the Fire Brigades Act, not the other way ‘round (at least with respect to bush fires as opposed to structural fires).

Conclusion

Assuming that the scrub fire that my correspondent attended was covered by the terms of the s 44 declaration, then it follows that subject to any delegation from the RFS Commissioner it would be the RFS that was in charge of the response, assisted by FRNSW.