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.
Australian Emergency Law 
Michael. In the scenario as highlighted by the correspondent, who would be responsible if death or injury occurred at the fire? If one Act overrides the other as you suggest, then esentially the attending FRNSW is working for the RFS. Is that correct?
The matter of liability resting with the individual commander or the orgaisation itself is dealt with in another recent subject on Emergency Law and I can see relevance in this subject matter.
Section 44 of the Rural Fires Act makes no provision for cooperative firefighting whatsoever other than in its title. There is no prvision made other than the attending RFS may take control of the fire. Section 45(3) provides a member of a rural fire service with the authority to give orders specifically to the FRNSW in such circumstances. Is this person therefore responsible for adherence to, and for non adherence to, safe work practices in the scenrio provided? Is it the RFS organisation generally?
It depends on what caused the death or injury.
In a s 44 fire FRNSW are not working ‘for’ the but are providing resources to support the IC appointed by the RFS. The Commissioner of the RFS, or his or her delegate (and the delegate doesn’t have to be a member of the RFS), may give such directions as they consider necessary members of Fire and Rescue NSW but that is consistent with the idea of an incident controller, it doesn’t allow the Commissioner to tell FRNSW how to do the job assigned to them. The IC is not responsible for adherence to, and for non-adherence to, safe work practices by the other agencies. The IC is responsible for his or her decisions, the commander of other agencies are responsible for their decisions. If the IC asks FRNSW to complete a task, and the FRNSW commander doesn’t do that in an appropriate way, that’s FRNSW’s issue. I
Michael, on another forum there are conflicting interpretations (A and B) in relation to ‘primacy’ in NSW between the Fire Brigades Act and Rural Fires Act. Can you offer an opinion?
A
I agree with your observation that “operational jurisdiction is a legal issue, enshrined in the FB Act and RF Act”. I also disagree with other bits.
The Minister does not need to draft up any significant legislation stemming from what appears to be a review supporting efficiency over traditional jurisdictional matters, possibly in terms of public safety. The existing legislation is already watered down, and for the very same reason. Neither jurisdiction, as provided under RFS Act and Fire Brigades Act, is set in stone for all anticipated circumstances including catastrophic events.
There are waivers in both Acts. Lets call them safety valves, that allow discretion by the Fire Services themselves to circumvent established jurisdictional borders. These safety valves are s44 RFS Act and s20 FB Act.
In regards to s20 FB Act A fire brigade may proceed beyond fire district boundaries for the purposes of extinguishing any fire. as though the fire was in a fire district. Right there is the jurisdictional safety valve. The jurisdiction goes with the responding Brigade. Under s44 RFS Act the jurisdiction proceeds along with the attending RFS, anywhere in the state.
Now here is my point. The only person who has discretion in terms of a fire brigade responding in extra-jurisdictional fires (at Tathra for instance) is the Commissioner of FRNSW. s20 is the only means whereby such responses by FRNSW are either approved or not approved, end of argument. At the same time the Commissioner’s discretion at s20 does not provide the Commissioner with additional discretion to apply conditions to a fire brigade under the circumstances. The need to seek permission from another jurisdiction in such matters is simply not a condition at all, as there are no other conditions that are applied.
No other part of the FB Act relates to extra-jurisdictional attendances. The current arrangement whereby the RFS somehow sees itself as also having discretionary authority over such matters in relation to a fire brigade, is something that is definitely not “enshrined in legislation as you have put it. Your suggestion that extra-jurisdictional activities of a fire brigade are “entirely at the discretion of the RFS to say yes thanks or no thanks” is no discretion at all simply because it stems from a non-legislative agreement between fire services, Once again the commissioner is not entitled to enter into any arrangement that would place conditions upon the provisions of s20. He is not empowered to change or abrogate his discretionary authority and can only approve or disprove of a s 20 response,
The current newish commissioner is simply maintaining an existing culture which he has encountered for the first time. Some time back s20 responses were very commonplace as a means for getting some form of guaranteed response to the 000 caller. However these actions seemed to have subsided along with the appointment of one of the previous commissioners who held strange notions as to who was the customer. It was either the RFS, or the poor punter at the other end of the 000 phone call. Any reasonable observer at the time could be convinced that it was never going to be the punter and that is why we are having enquiries and discussing response arrangements needlessly on forums.
B
You seem to have missed a few things of relevance in your post;
-The actual wording and intent of s20 of the Fire Brigades Act
-The effect of s7 of the Fire Brigades Act
-The powers of the RFS under s38 of the Rural Fires Act; and
-The primacy of the Rural Fires Act in Rural Fire Districts ( Interpretations Act NSW)
s20 of the FB Act reads;
“20 Fires outside areas to which Act applies
(1) The Commissioner may permit any members of a fire brigade, with engines and appliances, to go beyond the limits of any fire district for the purpose of extinguishing any fire.
(2) In such a case the provisions of this Act apply to the fire and to anything done at the fire as if the fire were within a fire district.”
The intent of this section to enable the FR Commissioner (or delegate) to permit (or not permit – see s9 of Interpretation Act)) FRNSW attendance at fires outside of FR Fire Districts, and for FRNSW to have the protections of the FB Act in doing so, eg s78 of the FB Act “Protection from Liability”. Nothing in this overrides any provisions of the Rural Fires Act.
s7 of the FB act reads;
“7 General authority to protect persons and property
(1) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved.
(2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district.”
This is the more general authority that gives the FR Commissioner (or delegate) the ability to respond outside FR Fire districts, but again it does not in itself give or specify any primacy over the Rural Fires Act.
s38 of the RF Act reads;
“38 Functions of fire control officers
(1) A fire control officer appointed under this Part has all the powers and immunities conferred on an officer in charge of a rural fire brigade.
(2) A fire control officer:
(a) has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and
(b) has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, and
(c) must inspect, or cause to be inspected, at least once each year all fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, and
(d) must take or cause to be taken all necessary measures for suppressing fires in the rural fire district and protecting and saving life and property in case of fire”
The two things relevant that this sets out are s38(2)(d) conferring the responsibility for ‘all necessary measures’ (including fire appliance resourcing) onto the RFS (FCO or delegate) and s38(2)(b) giving the RFS (FCO or delegate) the absolute the right to use (or not use) any fire fighting apparatus present in the rural fire district, including that of FRNSW. ( ‘Use’ being in the sense of ‘control’ as per AIIMS ICS. )
Only NPWS and Forestry Corp firefighting apparatus (land management authorities) are exempt from this power that the RFS has. In other words, the RFS has the explicit legal authority to say ‘yes’ or ‘no’ to FRNSW offers of assistance or to use or stand down FRNSW resources present in a RFD.
Of course this only applies in the case of fires in a RFD, Hazmat Incidents and FR SRB rescue response into RFD’s come under the authority of the FB Act and SERM Act respectively.
The last point is in regard to the primacy of Acts. In NSW, the Interpretation Act applies if two different Acts are seen as having applicability to a situation. s33 reads
“33 Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
The plain English interpretation of s33 with regard to this topic is as follows. Rural fire districts are established under the Rural Fires Act, therefore the Rural Fires Act takes precedence over the Fire Brigades Act in determining whose legislation applies in the making of the rules as to who ultimately determines the response into RFDs. It’s clearly the RFS who do (s38(2)(d)), so the policy where the FRNSW offers assistance and the RFS accepts and declines is the only legal framework that can be applied under the current legislation.
If I properly understand the competing position, ‘A’ is that by virtue of s 20 of the Fire Brigades Act 1989 (NSW), Fire and Rescue can chose to respond to an emergency anywhere in the state. Section 20 says:
Section 7 says, similarly:
The alternative view, ‘B’ is that although FRNSW may respond outside a fire district, they are subject to the direction and control of the Rural Fire Service when it comes to responding to a fire in a rural fire district. It is my opinion that the view summarised as ‘B’ has to be correct.
Sections 7 and 20 of the Fire Brigades Act may give the Commissioner the authority to allow FRNSW to operate outside a fire district but that has to be read in context with other laws, including the Rural Fires Act and the State Emergency and Rescue Management Act. The author of B has noted s 38 of the Rural Fires Act. I would also note s 41 that says:
‘All other persons’ would include the Commissioner of FRNSW and firefighters.
The State Emergency and Rescue Management Act provides for the creation of the state, regional and local emergency management plans. The state plan provides for combat agencies. A combat agency is ‘the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency’ (s 4). The plan allocates specific control responsibilities. Annexure 3 says that the NSW Rural Fire Service is the responsible agency for fires (within a rural fire district) whilst Fire and Rescue NSW is the responsible agency for a fire (within a fire district) (see also SERM Act s 12). Section 13 says (emphasis added):
If there were no rural fire service, FRNSW may rely on s 20 to operate outside a fire district. But I infer that the author of A is advocating that FRNSW could respond to a fire (and I think we’re talking about Tathra) just because the FRNSW Commissioner thinks they should. Equally if someone rang triple zero they could choose to respond giving callers the option of what to call. I can’t see that s 20 can be read that broadly. Section 20 is authority to respond to a request, so if the RFS ask for assistance, the FRNSW Commissioner can meet that request and that is consistent with the concept of an all hazards/all agencies response. Section 7 equally would allow FRNSW to respond to a request for assistance from the State Emergency Service when responding to floods and storms.
But FRNSW has to recognise the authority of the RFS at a fire (RFS Act s 41; SERM Act s 13). And it would be ridiculous and contrary to the principles of the SERM Act for an emergency service to separately respond to an emergency. One couldn’t sensibly have both RFS and FRNSW responding but not working together and coordinating to achieve a single and unified response.
The view expressed in ‘A’ above is reading s 20 without reference to the whole picture of the state’s emergency response arrangements. It is my view that the opinion ‘B’ above is a more accurate and complete analysis of the legal position.