Today’s question arises from the recent bushfire season. My correspondent, a NSW RFS firefighter says:

During the recent fire season, a number of fires we attended had NSW National Parks or NSW Forestry Corporation staff as Divisional Commanders Overseeing and coordinating NSW RFS volunteers in the fire ground often without a liaison between agencies. I would say that because incidents were being managed by an IMT, there was most likely liaisons at least in the operations section of the IMT but rarely fire ground which caused no end of angst.

As both NSW National Parks and Wildlife service and NSW Forestry Corporation would be considered land managers and NSW Rural Fire Service would be considered a combat agency, do either land managers have the authority to manage the operations of a fire (assuming it is not a hazard reduction) and to provide direction to NSW RFS volunteers when they fall outside of our rank structure and also most likely do not have the same powers delegated to officers under the Rural Fires Act.

In a perfect world, all agencies would be working towards a common goal and desired outcome, however often a difference of opinion on how to achieve that can be seen when dealing with land managers vs another combat agency.

This is further exacerbated when there is no one on the fire ground from within your rank structure to escalate concerns to meaning the only way to gain a result to go above the Divcoms head in order to raise issues or concerns via the chain of command.

I guess in a nutshell my questions are:

  • Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?
  • Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?
  • Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

The Rural Fire Service is the ‘combat agency’ for bushfires in New South Wales (State Emergency and Rescue Management Act 1989 (NSW; ‘SERM Act’) s 3; New South Wales State Emergency Management Plan (December 2018) Annexure 3). A ‘combat agency’ is ‘the agency primarily responsible for controlling the response to a particular emergency’ (SERM Act s 3). Control means ‘means the overall direction of the activities, agencies or individuals concerned’ (s 3). It follows that the RFS is responsible for setting the overall direction of fire fighting response but it does not follow that RFS brigades are the only agencies fighting fires or are necessarily in control at a particular fire. No-one needs legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810)) or to put that another way, anyone can fight a fire.

The officer in charge of a rural fire brigade has statutory authority to exercise various emergency powers (Rural Fires Act 1989 (NSW) ss 22-26) including a power to remove people who is interfering with the work of the brigade (s 22A). The exercise of those powers is not mandatory, he or she ‘may’ (not ‘must’) exercise those powers. Further, in many cases, the use of emergency powers will not be required.

In today’s thinking governments want to build disaster resilient communities. The National Strategy for Disaster Resilience (COAG, 2011) says:

A disaster resilient community is one where:

  • people understand the risks that may affect them and others in their community. They understand the risks assessed around Australia, particularly those in their local area. They have comprehensive local information about hazards and risks, including who is exposed and who is most vulnerable. They take action to prepare for disasters and are adaptive and flexible to respond appropriately during emergencies
  • people have taken steps to anticipate disasters and to protect themselves their assets and their livelihoods, including their homes and possessions, cultural heritage and economic capital, therefore minimising physical, economic and social losses. They have committed the necessary resources and are capable of organising themselves before, during and after disasters which helps to restore social, institutional and economic activity
  • people work together with local leaders using their knowledge and resources to prepare for and deal with disasters. They use personal and community strengths, and existing community networks and structures; a resilient community is enabled by strong social networks that offer support to individuals and families in a time of crisis
  • people work in partnership with emergency services, their local authorities and other relevant organisations before, during and after emergencies. These relationships ensure community resilience activities are informed by local knowledge, can be undertaken safely, and complement the work of emergency service agencies …

If we believe that there can be resilient communities, and individuals, then respect has to be given to them and their choices. For example, when helping a farmer the brigade may turn up, think ‘this farmer has it pretty much under control’ They can say to the landowner, including National Parks or Forestry – ‘you’ve got this, call us if you need us’ (see Gardner v Northern Territory [2003] NTSC 113 discussed in my paper ‘A case study of tort liability for fire damage’ (2007) 22(1) Australian Journal of Emergency Management 44-48) or ‘you’ve got this, but we’ll lend you a couple of appliances and crew but we’ll work toward your priorities – how can we help?’

Insisting that the emergency services will come in, take over, set priorities and otherwise manage the response is to defeat the objective of shared responsibility and disaster resilience (and see Mick Keelty,  A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review (Government of Western Australia 2011) for a discussion on the tension between evacuation and shared responsibility). Agencies like the Rural Fire Service need to work with their communities (as noted in the last dot point above).

Planning is an essential part of preparing for emergencies. Each area should have a local emergency management plan (SERM Act ss 27-32) and one would hope that where an area includes a national park or state forest that those agencies are represented on the Local Emergency Management Committee.

There is a Bush Fire Coordinating Committee that includes a representative from the Forestry Corporation and representatives from the Office of Environment and Heritage (as it was) and a person nominated by the Minister of Environment. Although departmental names have changed since the RFS Act was written, there is a person who can represent NPWS on the Committee.

Further there is a ‘Bush Fire Management Committee for the whole of the area of any local authority for which a rural fire district is constituted’ (s 50). Those committees are to prepare (s 52):

(a) a plan of operations, and

(b) a bush fire risk management plan.

When exercising his or her powers under s 44, the Commissioner of the Rural Fire Service (s 44(3)):

… is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner’s functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.

During a declared s 44 fire (s 45A)

The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to any person including 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 [ie FCNSW] or a person employed in the Office of Environment and Heritage [ie NPWS].

Managed land is inter alia (s 100A) land:

(a) that is dedicated, or acquired for the purpose of dedication, under the Forestry Act 2012 or in respect of which the Forestry Corporation has obtained the benefit of a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919, or

(b) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or…

A fire control officer is appointed for each rural fire district (s 10). A fire control officer is

… responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

He or she ‘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’ (s 38(2)(b)) and ‘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;’ (s 38(2)(d)).  A fire control officer can only exercise those powers in s 38(2)(d):

… if the fire control officer (and any member of the Service assisting the fire control officer in the exercise of the function) complies with the conditions (if any) imposed on the exercise of the function specified in any relevant bush fire management plan or other relevant plan of the authority responsible for the managed land of which the fire control officer is aware.

A plan of management for land reserved as a national park must include provisions for ‘fire management’ (National Parks and Wildlife Act 1974 (NSW) s 72AA). It is a function of the Forestry Corporation (s 11(1)(f)) ‘subject to the Rural Fires Act 1997, to carry out measures on Crown-timber land for the protection from fire of timber and forest products on that land’.

Finally there is the NSW Bushfire Plan. That plan says, relevantly

22. There are two services responsible for fire suppression in NSW being the NSW RFS and FRNSW. These two agencies are supported by NPWS [National Parks and Wildlife Service] and FCNSW [Forestry Corporation New South Wales] known as fire-fighting authorities.

23. NSW RFS, FRNSW, NPWS and FCNSW maintain fire-fighting capability to meet anticipated needs, including trained personnel for fire-fighting and specialist roles, logistics and supply arrangements, fire-fighting equipment and qualified Incident Management personnel.

73. [A class one fire is defined as] ‘A bush fire under the control of the responsible fire authority*, whether or not incidental/low level assistance is provided by other agencies’. *’Responsible fire authority includes NSW RFS, FRNSW, NPWS and FCNSW’.

75. All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency. The IC is subject to the direction of the relevant fire service Commissioner through the established chain of command.

Discussion

The National Parks and Wildlife Service (NPWS) and the Forestry Corporation (FCNSW) are landholders and like any landholders they have an interest in protecting their property from fire. They have the powers of a natural person as well as the powers and duties imposed on them by legislation.  That means they must have fire management plans, they can fight fires on their land and if we are going to give respect to concepts of resilient communities and shared responsibility they have to be able to set priorities on their land (eg saving that historic shed is very important, that grove of trees less so etc).

The legislation provides for extensive planning for bushfire fighting from local to statewide. NPWS and FCNSW are required to be involved in that planning.   The Commissioner acting under s 44 must have regard to the management plans of FCNSW and NPWS whereas a fire control officer ‘and any member of the Service assisting the fire control officer’ must comply with those plans.

The various plans may determine who is the incident controller at a fire. ‘All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency’.  The IC need not come from the ranks of the RFS or be the local Fire Control Officer

The questions:

  • Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?

Yes, they have the power of occupier and the powers vested in them by the Forestry Act 2012 (NSW) or the National Parks and Wildlife Act 1974 (NSW). As occupier they can take control of the fire on their land as can anyone. The RFS may take over that effort but are not required to do so.  Unlike a farmer, FCNSW and NPWS have the powers identified in the planning process in the state and local emergency management and bushfire plans. The point of those plans is to determine how fires will be managed and that can include appointing Forestry or NPWS staff as the IC.

  • Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?

Yes. During a s 44 fire the delegate can exercise the powers of the Commissioner.  A declaration of a state of emergency will not vest Forestry or NPWS staff with the powers of an RFS officer. During a declared state of emergency ‘the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function’ (SERM Act s 36) so he or she could shift authority to FNCSW or NPWS.

  • Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

They do if that member is the IC or, in context, their decisions are being made in accordance with fire management plans for managed land. Even if the RFS members don’t ‘have’ to take direction, one should consider why that other agency wants to adopt the tactics they do. If we are talking about FCNSW or NPWS remember that their staff work in the forests and parks every day, they know the land and they know the priorities and their firefighting crews are also trained and experienced. It would be a ‘brave’ call (ala ‘Yes Minister’) to decide as the RFS to simply set aside their planning and experience and attempt to exercise control or worse, set off with two agencies fighting the same fire with different strategies in competition rather than cooperation.  I would suggest that the solution is ‘to go above the Divcoms head in order to raise issues or concerns via the chain of command.’