The Rural Fire Fighting Fund is established by s 102 of the Rural Fires Act 1997 (NSW).  That section says:

(1) There is to be established in the Special Deposits Account in the Treasury a New South Wales Rural Fire Fighting Fund.

(1A) There is to be paid into the Fund:

(a) all contributions payable by the Treasurer to the Fund under this Part, and

(b) any other money appropriated by Parliament for payment into the Fund, and

(c) the proceeds of investment of money in the Fund, and

(d) any other money required by law to be paid into the Fund.

(2) There is payable from the Fund:

(a) money to assist in meeting the costs of rural fire brigade expenditure, and

(b) any money payable in connection with the exercise of the duties imposed on the Commissioner by section 45 and the construction and maintenance of fire trails and other fire prevention and hazard reduction works, and

(c) all money directed to be paid from the Fund by or under this or any other Act.

Today’s correspondent has been ‘… puzzled … for sometime…’.  My correspondent says:

Section 102 of the NSW Rural Fires ACT established the New South Wales Rural Fire Fighting Fund to replace the New South Wales Bush Fire Fighting Fund.

Quarterly contributions from insurance companies, local councils and the Treasury were to continue in the same proportions as under previous legislation – 14% from the State Treasury, 73.7% from the insurance industry and 12.3% from local Councils.

Currently the NSW Rural Fire Service are continuing to expand their operational roles into Rescue (Road Crash Rescue and General Land Rescue) and Flood and Storm Response (Down the wire flood rescue and Safe work at heights crews) and Maritime Firefighting (29 Fire Fighting Vessels) as well as owning and operating aircraft.

Would expenditure for non-rural fire fighting brigade resources such as rescue trucks, boats, motor bikes and aircraft still be permitted to be drawn from this fund.

Is the use of funds to build rescue trucks with no rural fire fighting capabilities legally be permitted to be drawn from the fund? Or should the NSW Rural Fire Service be seeking funding from other sources to ensure the fund remains dedicated to the provision or rural firefighting equipment and not robbed to pay for rescue or non-firefighting capabilities.

Disclaimer

There is law on the government accounting and finance, see for example the Public Finance and Audit Act 1983 (NSW). I would claim some expertise in law of emergency response and emergency services but none in public sector finance.  The discussion that follows will not attempt to address or explain the impact of this Act or public finance or accountability laws.

With that limitation I’ll give my opinion on the RFS Act.

The functions of the RFS

The functions of the Rural Fire Service include (s 9):

• ‘to provide rural fire services for New South Wales’;
• ‘to carry out, by accredited brigades, rescue operations allocated by the State Rescue Board’; and
• ‘to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the State Emergency Service or the Ambulance Service of NSW in dealing with any incident or emergency’.

Rural fire services include (s 9(4)):

(a) services for the prevention, mitigation and suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

(c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3,

(d) any other service prescribed by the regulations.

Discussion

The first thing to note is that the New South Wales Rural Fire Fighting Fund receives (or can receive) more than the required quarterly contributions paid by Councils, insurers and treasury.  Clearly the fund receives all money intended for the RFS including any money appropriated into the Fund by the Parliament which could happen if the RFS sought, and was granted, extra funding for any special purpose.

Further, one should not put too much into the name ‘New South Wales Rural Fire Fighting Fund’.  The New South Wales Rural Fire Fighting Fund is the name of the account in treasury for the RFS to receive money, and the pay money for its purposes.

Rescue

It is (since 7 December 2018 and the commencement of the Emergency Services Legislation Amendment Act 2018 (NSW)) a function of the RFS to provide rescue services.  Taking money from the New South Wales Rural Fire Fighting Fund to meet the costs of establishing and supporting brigades that operated accredited rescue units would be an expenditure consistent with s 102(2)(a) and (c).

Flood and Storm Response

It is a function of the RFS to assist the other emergency services including the State Emergency Services. The SES may be the combat agency responsible for flood response and flood rescue (State Emergency Service Act 1989 (NSW) s 8(a); NSW State Rescue Policy (Version 4.0) 14 November 2018) but that does not mean that the SES have to provide all the flood rescue resources.  The NSW State Rescue Policy says, inter alia:

[1.70] The NSW Rural Fire Service owns and contracts helicopters, which are regularly inspected, some of which have known rescue capabilities, equipment and crewing. NSW Rural Fire Service owned and contracted suitable helicopters can be tasked in support of flood operations and bushfire events for the extraction of persons in imminent danger…

[2.49] The NSW SES has the authority to request any asset or resource, public or private, whether accredited, trained or not, to assist in flood operations, as referenced in the State Flood Plan.

If the RFS, in collaboration with the SES, is developing flood rescue helicopter capability then meeting the costs of that capacity would be legitimate expenditure pursuant to the Rural Fires Act 1997 (NSW) s 102(2)(a) and (c).

Maritime Firefighting

The Rural Fire Service provides rural fire services within a rural fire district.  If the rural fire district has a river, coast, lake or other waterway, rural fire services could include provision of maritime firefighting – whether that’s fighting a fire on a boat or fighting a fire on land from a boat.

The use of other vehicles in providing RFS services – helicopters and motorcycles for remote area access, helicopters and fixed wing aircraft for aerial firefighting would, I think, be uncontroversial.

Spending money on this equipment would be consistent with s 102(2)(a), (b) and (c).

Conclusion

My correspondent asked:

Is the use of funds to build rescue trucks with no rural fire fighting capabilities legally be permitted to be drawn from the fund? Or should the NSW Rural Fire Service be seeking funding from other sources to ensure the fund remains dedicated to the provision or rural firefighting equipment and not robbed to pay for rescue or non-firefighting capabilities.

If the RFS did seek ‘funding from other sources’ that funding would or could still be paid to the New South Wales Rural Fire Fighting Fund.  If the funding came from Treasury it would go into the fund (s 102(1A)(a) and (b).  Public funding could be in a separate fund unless some other law (dealing with public finance) required the RFS to use only the Treasury fund.

It follows that, in my view, the use of funds to build rescue trucks with no rural fire fighting capabilities and to develop rescue or non-firefighting capabilities where that is consistent with the functions of the RFS is a legitimate use of money in the New South Wales Rural Fire Fighting Fund.