Today’s correspondent says:

A FRNSW officer recently told me that Fire and Rescue Act (NSW) allows him ‘ to go wherever and whenever he wants to protect life, property, and environment, and that the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District.

The Fire and Rescue Act seems to have two sections of relevance with respect to FRNSW attendance at fires in Rural Fire Districts;

5A   General functions of Commissioner
(3)  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 and, in the case of a fire, it does not matter whether or not the persons are, or the property is, within a fire district.

And;

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.

However, Rural Fire Districts are constituted by section 6 of the Rural Fires Act, and that Act has this to say;

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, ….

Now my questions…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

At a fire or other applicable incident in a Rural Fire District, if first arriving, I understand a FRNSW appliance may commence operations as per the Fire and Rescue Act, however I also understand that once the RFS arrive and assume incident control, the incident as a whole will fall under the Rural Fires Act and the Fire and Rescue Act will then only be relevant to internal matters to the FRNSW members present (eg discipline, liability)?  If the RFS are first arriving at the fire or other applicable incident in a RFD, I understand that the RFS will always have control as per the Rural Fires Act and that subsequent attending FRNSW appliances are subject to that control?

Anything further on this that I may have overlooked?

The fundamental position is that agencies should work together. Any FR(NSW) officer who says ‘the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District’ has missed the memo on inter-agency cooperation.

Sections 5A and 20 of the Fire and Rescue NSW Act 1989 (NSW) quoted above are permissive; that is, they give Fire and Rescue NSW (FRNSW) permission but not necessarily authority. Section 5A sets out the functions of the Commissioner and s 5A(3) says that he or she can perform those functions anywhere in the state and s 20 says that the Commissioner can do that by despatching FRNSW brigades outside a Fire District.  Section 5A(4)(d) says that the Commissioner ‘is also authorised to … (d) assist, at their request, members of … the NSW Rural Fire Service … in dealing with any incident or emergency’.

When I say a section is ‘permissive’, recall a comment that I have made previously: as a rule of thumb (that is, a rough guide, not 100% accurate), a natural person can do anything they like unless there is a law that says they cannot. On the other hand, government agencies cannot do anything unless there is a law that says they can. The Fire and Rescue Act 1989 (NSW) s 5 defines Fire Districts. Section 5A(1) says (emphasis added) ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district.’ A retained firefighter who is also a lawyer would, rightly ask if despatched outside a fire district’ ‘can we do that?’; and ss 5A(3) and 20 says ‘yes we can’. But it does not give any explanation of what they are to do in that area.

The Fire and Rescue Act has to be read in context which includes the existence of the Rural Fires Act 1997 (NSW) and the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).  The SERM Act provides for the creation of the NSW Emergency Management Plan (the EM Plan). ‘The State Emergency Management Plan has effect in the event of an emergency whether or not a state of emergency has been declared’ (s 13(2)). The EM Plan says (at [705]-[706]):

Individual agencies are identified in relation to specific hazards (known as a Combat Agency) and are responsible for controlling the response operations. Controlling the response involves the overall direction of activities being undertaken by participating agencies and individuals.

Combat Agencies have specific provisions within their governing legislation to carry out their respective functions. EMPLAN serves as a mechanism to facilitate support to such agencies. A Combat Agency Incident Controller is the single person/entity that is responsible for the control and coordination of emergency response measures undertaken within the extent of the authority of the agency as defined in the relevant Act and EMPLAN. They are the final authority in decision-making in relation to the incident or emergency within their area of responsibility…

The Rural Fire Service is the combat agency for fires within a rural fire district (EM Plan, Annexes 3 and 9; Rural Fires Act 1997 (NSW) s 9(1)(a)).

Now my answers…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

It’s not that the Rural Fires Act has ‘precedence’ over the Fire and Rescue Act, they have to be read together.  Together (along with EM plan) they say that the Rural Fire Service is the combat agency for fires in a rural fire district.  They can call on FR(NSW) for assistance and FR(NSW) can move out of a fire district to provide that assistance. (FR(NSW) can also move out of a Fire District to perform its other, non-firefighting tasks such as controlling a HAZMAT incident or providing rescue services where they operate the relevant accredited rescue unit).

FR(NSW) may be despatched to a fire outside a fire district because they are the closest and most appropriate fire service. When they turn out the brigade captain can exercise all of the powers that he or she would have within a fire district (Fire and Rescue NSW Act 1989 (NSW) s 20(2)). As first (and perhaps only) brigade on scene the FR(NSW) commander will necessarily be the IC for that fire. FR(NSW) may also be despatched to assist a RFS brigade, for example an RFS brigade may be called to a house fire in a village and call on the local FR(NSW) brigade to assist with structural firefighting. The RFS commander will be the IC for that fire and the FR(NSW) brigade are there to assist subject to the IC’s control and set objectives.

One would hope that if FR(NSW) are first on scene and have commenced firefighting one would hope that the commander of an RFS brigade would report to the FR(NSW) IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (even if legally that is the case). I would hope the same would apply in reverse, if RFS are first on scene and have commenced firefighting one would hope that the commander of an FR(NSW) brigade would report to the RFS IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (noting that he or she would not legally be in charge in any event).

As a fire escalates and incident control is moved from the brigade on scene to an IMT then the RFS IC will be ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the operations conducted by FR(NSW). Should the Commissioner make a declaration under s 44, then the Commissioner ‘is to take charge of bush fire fighting operations and bush fire prevention measures’ and (s 45):

… may give such directions as the Commissioner considers necessary to fire control officers, deputy fire control officers, officers of rural fire brigades, local authorities, officers or members of Fire and Rescue NSW, members of the NSW Police Force and other persons in connection with the prevention, control or suppression of any bush fire in the area or locality in which the Commissioner has taken charge or is taking measures under this Division.

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

Section 38 is quoted above. Critically it says (emphasis added):

(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.

Section 38(2)(a) is limited to ‘rural fire brigades’ so does not give that FCO authority over FR(NSW) brigades; but s 38(2)(b) does.

Section 38(2)(b) refers to any fire fighting appliance other than those operated by State Forests, National Parks and Wildlife Service, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation or a water authority’ (Definition of ‘managed land’). It follows that the FCO has the right to ‘use’ fire fighting apparatus owned by FR(NSW) but presumably no FCO is going to commandeer the appliance, rather he or she will assign a task to FR(NSW).

Conclusion

The Fire and Rescue NSW Act 1989 (NSW) does not allow a FR(NSW) officer ‘to go wherever and whenever he wants to protect life, property, and environment’. It allows the officer to respond outside a fire district when authorised to do so by the Commissioner.

The response is subject to the Rural Fires Act, the State Emergency and Rescue Management Act as well as the Fire and Rescue NSW Act. When responding to a fire in a rural fire district, it is the Rural Fire Service that is the combat agency. The FR(NSW) commander may be the IC for that fire, either by default (they are the first, perhaps only, brigade one on scene and are exercising control) or by appointment. Where an RFS officer is the IC then it is the RFS officer who is ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the tasks assigned to the FR(NSW). There is nothing in ss 5A or 20 that says the FR(NSW) officer can do whatever he wants or exercise any control over an RFS controlled fire. The RFS are in ‘control’, the FR(NSW) commander is in ‘command’ of the FR(NSW) resources.