Today’s question comes from a NSW volunteer firefighter who responded to a fire in rural local government area.   The Incident Controller (IC) requested a bulldozer and grader to ‘cut fire breaks so we could do backburning during the night to help contain the fire’.  The request was made at 3pm but the response was ‘The bulldozer would not be there until around 8.30 the next day and the grader would not be there until 11 am the next day.’  My correspondent says that he is aware that the relevant council, as well as neighbouring councils, had graders and bulldozers but these were not made available.  So, asks my correspondent:

What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?  Having read the Rural Fires Act and the Local Government Act I must say the law seems wishy washy on the obligations of local government when they clearly have the resources to help… This leads me to my other question; Do you think that the Rural Fires Act and/or the Local Government Act needs beefing up to put more onus on local government to assist the RFS?

There is no legal obligation on local government to supply heavy plant or other assistance to the RFS.

The Local Government Act 1993 (NSW) makes no specific mention of emergency management.  Although there are no specific emergency management provisions, the Act does say that ‘A council has the functions conferred or imposed on it by or under any other Act or law’ (Local Government Act 1993 (NSW) s 22). The table to s 22 lists some Acts that confer functions on local governments.  The table to s 22 identifies the following relevant Acts and functions:

  • The Fire Brigades Act 1989 (NSW) imposes an obligation on councils to pay contributions toward the costs of maintaining the fire brigades.
  • The Rural Fires Act 1997 (NSW) authorises council to issue of permits to light fires during bush fire danger periods and to furnish information to the Rural Fire Service Advisory Council and its Co-ordinating Committee.
  • The State Emergency Service Act 1989 (NSW) requires council to recommend a person for appointment as the local SES controller; and
  • The State Emergency and Rescue Management Act 1989 (NSW) requires a council to prepare for emergencies.

There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).

That there is no legal obligation under either the Local Government Act 1993 (NSW) or the Rural Fires Act 19997 (NSW) is not, however, the end of the matter.  The State Emergency and Rescue Management Act 1989 (NSW) s 28 establishes Local Emergency Management Committees (or LEMC).  The LEMC is made up of ‘the General Manager of the council of the relevant local government area, who is to be the Chairperson of the Committee’ as well as representatives from all agencies involved in emergency management within the council’s area including the Rural Fire Service.

The LEMC is required to prepare and review local emergency management plans. The Committee may (but is not required to; s 29(1A)(e)): ‘facilitate local level emergency management capability through inter-agency co-ordination, co-operation and information sharing arrangements’.

The conclusion is that arrangements for providing council plant to a request from the RFS (or SES, or F&RNSW or NSW Ambulance) is a matter that should be part of the local emergency management plan. What equipment is available, on what terms, when and how they are requested will vary from local government to local government hence it makes sense not to have prescriptive arrangements in the legislation.  Consistent with an approach of developing resilient communities (see Council of Australian Governments, National Strategy for Disaster Resilience (Commonwealth of Australia, 2011)) structures are in place to establish local arrangements.  It is those arrangements that will determine local responsibilities.

Do the Rural Fires Act and/or the Local Government Act need beefing up to put more onus on local government to assist the RFS?  That is not for me to say.  The allocation of responsibilities is a matter of policy, determined by government taking into account various issues.  Certainly the difference between councils and risks would suggest that mandating obligations at state level is unlikely to be effective and would be inconsistent with the notion that emergency response starts and should remain local.

Conclusion

My correspondent asked ‘What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?’ He referred to the Local Government Act 1993 (NSW) and the Rural Fires Act 19997 (NSW) and found no obligation. That is correct.  The obligation (if there is one) will be found in the Local, Regional and ultimately State Emergency Management Plans.  The first point to look would be the Local Emergency Management Plan for the local government area in which the fire occurred.