Today’s correspondent says:

On 28/2/23 you published a post titled “Power of NSW RFS to close roads owned or managed by Transport for NSW”.

As a Deputy Captain in the NSW RFS, I thought the identified gap in RFS powers should be addressed, so I communicated it through the RFSA, making reference to your post.

Pleasingly, the Government has responded in the Emergency Services Legislation Amendment Bill 2023, which has passed both houses and is ready for assent.

The new Bill returns the power for an RFS officer to close TfNSW-managed streets or public places without permission, subject to a requirement to notify TfNSW as soon as practicable after the closure.

Revisiting the issue and reading the follow-up posts on your website today, has made me aware that it is not just the power to close streets and public places that is removed for TfNSW land. It is all RFS functions and powers under Division 3 of the Rural Fires Act. I doubt it was ever the Government’s intention to require the RFS to obtain TfNSW permission before dealing with fires and other incidents on TfNSW streets and land.

I think the effect of the legislative change needs to be broadened by replacing the words ‘functions conferred by section 24” with “functions conferred by this Division” in both 27(2) and 27(3).

I have communicated this broader concern within the RFSA, and would be interested in your opinion on the matter.

I’m pleased to think I may have made some contribution to changing the law.

The relevant provision is the new s 27. The Bill will take effect on the day it receives royal assent (s 3). When that happens s 27 of the Rural Fires Act 1997 (NSW) will say:

27 Permission needed from transport authorities for exercise of certain functions

(1)        Subject to subsection (2), the functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, a transport authority without the permission of—

(a) the transport authority, or

(b) a person authorised by the transport authority.

(2)        The functions conferred by section 24 may be exercised in relation to land or property vested in, or under the control of, Transport for NSW without the permission of Transport for NSW, unless—

(a)        the land or property is land or property on which rail services are provided, or

(b)       rail services would be affected by the exercise of the functions in relation to the land or property.

(3)        If a function conferred by section 24 is exercised in relation to land or property vested in, or under the control of, Transport for NSW without the permission of Transport for NSW that results in a street being closed to traffic, a member of the Service must, as soon practicable after the closure, advise Transport for NSW about the closure.

(4)        In this section— transport authority means the following—

(a) NSW Trains,

(b) Rail Corporation New South Wales,

(c) Rail Infrastructure Corporation,

(d) Residual Transport Corporation of New South Wales,

(e) Sydney Metro,

(f) Sydney Trains,

(g) Transport for NSW,

(h) Transport Infrastructure Development Corporation.

Section 24 is the power to ‘cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.’   The officer in charge of the RFS will be able to close any street or public place provided that it is not on land where rail services are provided or will affect the operation of a rail service.

But as my correspondent notes there are other powers under Part 2, Division 3. One is the power to enter premises. Section 23 says:

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.

But not, it seems, premises ‘vested in, or under the control of, a transport authority’. So the RFS cannot force entry to a train station in order to extinguish a fire, or an office block with the headquarters of TfNSW.  Again one can imagine that the rail authorities may not want RFS forcing entry to a rail corridor or even, perhaps, a signal box because of the dangers in the system that require expert knowledge.  In the city TfNSW may even maintain a specialist emergency service – see Operating a “Rail Emergency Response Unit” (November 20, 2016) but that’s hardly helpful given the extent of operations of the Rural Fire Service.

Other things the RFS can do under Division 3 are make premises safe (s 25), use water and works (s 26), remove persons or obstacles (s 22A) or ‘take any other action that is reasonably necessary or incidental to the effective exercise’ of an RFS function (such as fighting fires), but due to the new s 27, the RFS will not be able to exercise any of these powers on ‘land or property vested in, or under the control of, a transport authority’ without the permission of that authority.

That is truly bizarre.

Rather than refer to ‘functions conferred by this Division” in both 27(2) and 27(3)’ I would, if the section were essential, rewrite it to say:

27 Permission needed from transport authorities for exercise of certain functions

(1)        The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, a transport authority without the permission of—

(a) the transport authority, or

(b) a person authorised by the transport authority.

if

(c)        the land or property is land or property on which rail services are provided, or

(d)       rail services would be affected by the exercise of the functions in relation to the land or property.

(2)        In this section— transport authority means the following—

(a) NSW Trains,

(b) Rail Corporation New South Wales,

(c) Rail Infrastructure Corporation,

(d) Residual Transport Corporation of New South Wales,

(e) Sydney Metro,

(f) Sydney Trains,

(g) Transport for NSW,

(h) Transport Infrastructure Development Corporation.

But even that would be bizarre as it would still limit the power of the RFS to say evacuate a train station in order to try and fight a fire burning in the train station. Rather than try and rewrite the section someone – in particular TfNSW and the RFS – should work out exactly what is required and if it is that the RFS should not enter a rail line without first telling TfNSW to make sure the trains are stopped, then that is what it should say.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.