Today’s question is:
Can a person be prosecuted for a breach of NSW Rural Fires Act, sec64 (1) (b) where they (ie myself) phoned RFS New England RFS headquarters directly instead of 000 to report a bushfire on my property
The answer has to be ‘yes, they could be; but it would be pretty petty if they were’. The Rural Fires Act 1997 (NSW) s 64 says:
(1) If a fire (not being a fire or part of a fire lit under the authority of this Act or any other Act) is burning on any land at any time during a bush fire danger period applicable to the land the occupier of the land must:
(a) immediately on becoming aware of the fire and whether the occupier has lit or caused the fire to be lit or not, take all possible steps to extinguish the fire, and
(b) if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, ensure that the fire is reported immediately to the 000 emergency telephone number.
Section 64(1)(b) was put into the Act, in its current form, by the Emergency Services Legislation Amendment Act 2018 (NSW) with effect on 26 October 2018. Before then the section said:
if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, inform or cause to be informed an appropriate officer of the existence and locality of the fire if it is practicable to do so without leaving the fire unattended.
In a rural fire district, the appropriate officer was defined in s 64(2) (now repealed) as
… the nearest available:
(i) officer or member of a rural fire brigade, or
(ii) fire control officer or deputy fire control officer, or
(iii) employee of the Department of Industry, Skills and Regional Development, or
(iv) employee of the Office of Environment and Heritage.
Ringing the relevant regional headquarters would have been compliance with s 64(1)(b) as it then was. When introducing the amendments, the then Minister for Emergency Services, the Hon. Mr Troy Grant said:
Clause 8 [of the Emergency Services Legislation Amendment Bill]amends section 64 (1) (b) to require occupiers to report out-of-control fires to 000 rather than to local fire brigade officers. This change is consistent with existing advice that the New South Wales Rural Fire Service provides to the public about reporting fires to 000. Contacting 000 is the best way to ensure a rapid, coordinated response to a fire.
What follows is that the reference to calling triple zero was deliberate. The Act sets out what is required to meet the obligation imposed by s 64(1)(b). Failure to call triple zero is a failure to comply with the section so one ‘could’ be prosecuted. But the law is not self-executing, someone would have to be bothered and if the fire had been reported to the fire control centre and if there had been a response then it would be trivial to complain that the call was not made to triple zero.
Further, one could argue that the Act is ambiguous. You cannot report a fire to a phone number, you need to report it to a person. When calling triple zero a Telstra operator will answer the call. The Triple Zero webpage says:
Telstra has responsibility for providing the service which answers calls to these numbers [000 and 106 and 112], and transfers them, with relevant associated information, to the requested emergency service organisation.
You do not report the fire to the triple zero operator, they put the call through to the requested emergency service and their call taker (not the number) takes the report. If by calling the region headquarters direct the message was passed to the same person that would have received the message had the call come via the triple zero process then one could argue that the matter had been reported to the relevant triple zero call taker, given it is in fact not literally possible to comply with s 64(1)(b). The section would be better if it said ‘… the fire is reported immediately via the 000 emergency telephone number.’
Putting aside the semantics, the Act sets out the process to comply that is to call triple zero. Failure to report the number through that process is a failure to comply with s 64(1)(b) so could see someone prosecuted, but I’m sure a magistrate would be very disappointed to see such a prosecution come before their court if the person had indeed rung the relevant control centre and certainly if the call taker at that centre had not said ‘hang up, and ring triple zero’.
De minimis non curat lex – the law is not concerned with trifles.