Today’s question is a
… query about section 33B of the Rural Fires Act [1997 (NSW)] and its application to Investigation of fires. As a fire investigator I have responsibilities under the Rural Fires Act and have a need to better understand my powers of access.
The Act (s 33B) says:
33B POWER TO ENTER LAND UP TO 24 HOURS AFTER FIRE
(1) The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out.
(2) The power conferred on the Commissioner under subsection (1) may be exercised with or without the consent of the owner or occupier of the land concerned.
(3) This section does not authorise the Commissioner to enter any part of land used only for residential purposes without the authority of a search warrant under section 33C or the consent of the owner or occupier of the land concerned.
(4) In this section and in section 33C,
“land” includes any building on the land.
The application of 33B(1) & 33B (2) is easily understood but the questions that arise are
(A) If you have a property that is a larger lot (acreage) with a residence, do I have access as an authorised officer to investigate under 33B (1). It would seem that 33B (3) cancels 33B (1).
(B) If I have a structure fire on a residential lot and there is no visible flame or smouldering would a court consider the fire to have been put out and therefore a warrant would be required to investigate if owner refused access? Or would the investigation be part of the fire suppression activities if the investigator was a the scene prior to the fire being extinguished?
(C) If a fire has occurred, brigades have attended, extinguished the fire and departed; would the fire be considered out by a court.
(D) As in (C) above, if the job is left as patrol status within the RFS reporting system, does this extend the 24 hour access?
I ask these questions as [my] opinion is that 33B (1) takes precedence over 33B (3).
(E) Then how does the following section interact with section 33B
23 POWER TO ENTER PREMISES
An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act.
Premises is defined in the Dictionary as:
“premises includes any building of any description or any part of a building and any land whether built on or not but does not include any building on, or land forming part of, managed lands.”
Does this section overrule 33B (3)?
The concept of land includes anything built on and affixed to the land. That is also reflected in the definition of premises, quote above. It follows that the concept of land includes any building. ‘[P]art of land used only for residential purposes’ is the home. As Lord Denning said (Southam v Smout  1 QB 308 at 320)
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail— its roof may shake— the wind may blow through it— the storm may enter— the rain may enter— but the King of England cannot enter— all his force dares not cross the threshold of the ruined tenement.” So be it— unless he has justification by law.
I would understand the reference in s 33B(3) to ‘any part of land used only for residential purposes’ has to mean the home, not any part of a property where there is a house located somewhere on the property. If there is ‘a property that is a larger lot (acreage) with a residence’ the authorised officer has power to enter onto the land, but not into the home, to investigate under 33B (1).
The answer to question (B) is actually a question for my correspondent to answer. No doubt fire fighters have an understanding of when fire fighting is complete and the fire is extinguished. I think of the issue of the smouldering tree stump (see Verdict against landowners for RFS managed controlled burn set aside (April 9, 2021). Just because ‘there is no visible flame or smouldering’ it must be that there may still be firefighting activities to undertake but it is not for me to answer that. The issue for a court would be to understand what is really going on. If the IC or the investigator thinks the fire is out, then the fire is out. If they don’t then it isn’t but merely ‘pretending’ that it’s not out to allow the investigator to enter on a ‘pretence’ of fire fighting will not be accepted.
The issue is not who says what but what the facts show is actually happening. If you are entering to engage in firefighting you don’t need a warrant; if you are entering to investigate you do. A court will be interested in what is really going on and what people believed or intended, not simply what someone says or records.
If the fire brigades have left, then they must believe the fire is out. It has to be the case that ‘If a fire has occurred, brigades have attended, extinguished the fire and departed’ then the fire was extinguished. Any other conclusion would be perverse.
The answer is really the same as (B); it depends on what is actually going on. If you’re a fire investigator and you are part of the ‘patrol’ and you have reason to think there is a fire restarting and go into to extinguish the fire then you are firefighting. If you think ‘here’s the chance to sneak in’ then you are trying to subvert the need for a warrant and that will be frowned upon. The issue is what you really think and intend, not what a form says. It is really up to the RFS to say what the RFS means or understands by ‘when is a fire considered extinguished’.
I do not think ‘[s] 33B (1) takes precedence over [s] 33B (3).’ If it did s 33B(3) would have no work to do. Section 33B says you can enter onto land but s 33B(3) says ‘but not the landowner/occupier’s home’. There is a rule of statutory interpretation that a specific provision overrules a general provision (see ‘Lex specialis’). The power to enter land (s 33B(1)) is a general provision whereas s 33B(3) is a specific provision about entering a home.
Further it is a general rule of statutory interpretation that an Act should not be read as curtailing fundamental rights and freedoms without express language. It is a fundamental rule that one’s private property is sacrosanct – we’ve all heard that ‘a man’s home is his castle’ – that maxim is based on ancient law. In Seyman’s Case (1603) 77 Eng. Rep. 194 where Sir Edward Coke said ‘That the house of everyone is to him as his castle and fortress’. The quote from Lord Denning, above, can be traced back to 1763. Interpreting s 33B(1) as being subject to s 33B(3) would also be consistent with that principle.
For the same reasons I would read the general power (s 22) as subject so specific provisions in s 33B and in particular s 33B(3). That means that ‘An officer … may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’ but if they are planning to enter someone’s home for the purpose of ‘investigating the cause or origin of any fire that has occurred on that land’ within the last 24 hours, then they need to obtain a warrant.
It is my opinion that a person who is in reality setting out to investigate a fire may enter onto the land in the 24 hours after the fire is extinguished, (s 33B(1)) but that does not include the person’s home (s 33B(3)) unless they have a warrant. Claiming to be entering the land to fight a fire won’t allow entry if that is a pretence intended to avoid the need for a warrant. The power to enter land (s 33B(1)) or premises (s 22) has to be read subject to s 33B(3) or else s 33B(3) has no work to do.