Today’s correspondent tells me that my earlier post – The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024) has:
… again opened up the sorry saga caused by NSWRFS to many volunteers who were poorly treated throughout the disciplinary hearing process.
The sad state of affairs is that many volunteers have forked out $10K of dollars of their own money for legal assistance. Some for no result at all and some who have ended up in court, to have it settled out of court by the NSWRFS and a gag order placed with no details of the case to be released.
(For a discussion on the general futility of seeking to challenge these types of decisions in the courts, see Michael Eburn ‘Litigating with the SES’ (December 2023) Issue 66 The Volunteer (Official Journal of the NSW SES Volunteers Association) pp. 20-22).
Those same volunteers have become concerned about proposed legislative changes in Queensland that, I’m told (ie I haven’t checked) will allow the Commissioner ‘to directly sack a member of a Rural Fire Brigade …’ (see Rural Fire Brigades Association Queensland Inc., ‘Letter to the Premier and Minister’, 25 January 2024). My correspondent continues:
This has raised a question from some of our members being:
‘Under the Rural Fires Act 1997 (NSW), where does the Commissioner or his staff have the authority to dismiss a volunteer from the NSWRFS?’
Brigade membership
With respect to the formation of a rural fire brigade, the Rural Fires Act 1997 (NSW) s 15(1) says:
A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area.
The volunteer members of the Rural Fire Service are those persons listed on the membership register for each brigade (s 20). A member’s name must be removed from the register if they die or if they resign (Rural Fires Regulation 2022 (NSW) r 8(1)).
A member’s name may be removed from the register by the ‘responsible authority for [the] rural fire brigade’ (r 8(2)):
… if the person–
(a) is found to have committed a breach of discipline under section 10, or
(b) becomes a mentally incapacitated person, or
(c) is convicted–
(i) in New South Wales of an offence punishable by imprisonment of 12 months or more, or
(ii) elsewhere than New South Wales of an offence that, if committed in New South Wales, would be punishable by imprisonment for 12 months or more, or
(d) in the opinion of the responsible authority, is no longer a fit and proper person to be a member of the brigade.
To find that a person has ‘committed a breach of discipline’ requires adherence to the procedures set out in r 10 and Service Standard 1.1.2 Discipline (see r 10(2)(a)). A finding that a person is ‘no longer a fit and proper person to be a member of the brigade’ is a much more generic process but not without some legal oversight – ‘it could not extend to irrelevant considerations such as their shoe size or the cut of their hair’ (Clusters and Local Commanders in the NSW SES (edited and corrected 7 May 2022) (May 4, 2022)).
Responsible authority for a rural fire brigade
The critical question then is ‘who is the responsible authority for a rural fire brigade?’ The Act talks about local authorities forming brigades (s 15). For the purposes of the Act ‘local authority’ means (Rural Fires Act 1997 (NSW) Dictionary, definition of ‘local authority’), relevantly the relevant council or, in the case of the NSW Western district, the person appointed for that purpose or, in the case of Lord Howe Island, the Lord Howe Island Board.
In an earlier post – ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015) I said:
The Act refers to brigades formed by local authorities but, in reality, there are no such brigades. RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:
Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).
The Service Standard 2.1.1 that I was quoting has been replaced by Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades v2.2 (7 June 2022). This document no longer refers, specifically to the Rural Fire District Service agreements. The current Service Standard 2.1.1 (at [2.1]), and s 15(4) of the Act, say:
The Commissioner may form a Brigade for a Rural Fire District if any Local Authority requested to form a Brigade for that district refuses or fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner.
Even though the Service Standard does not refer to Rural Fire District Service Agreements, it does not mean that they do not exist. Section 12A of the Act empowers the Commissioner to enter into a Rural Fire District Service Agreement. That Agreement may ‘… specify functions imposed on the local authority by or under this Act that are to be exercised by the Commissioner’ (s 12A(2)(a)). Service Standard 1.3.4 Rural Fire District Service Agreements says:
1.2 The Rural Fires Act, (the Act) imposes a range of functions on both local authorities and the Commissioner.
1.3 In accordance with section 12A of the Act, the Commissioner of the New South Wales Rural Fire Service (NSW RFS) may enter into a rural fire district service agreement (RFDSA) with any local authority or authorities responsible for a rural fire district or districts.
1.4 In accordance with section 14 of the Act, the Commissioner has delegated to designated members of the NSW RFS many of the functions: (a) imposed upon the Commissioner by the Act; and (b) which he or she has agreed to exercise pursuant to the provisions of the RFDSAs.
1.5 The delegations made by the Commissioner are set out in Service Standard 1.3.1 Delegations and Authorisations.
Service Standard 1.3.1 Delegations and Authorisations shows that a number of functions including the power to form a brigade (s 15) and to remove a member from the register of members (r 8) have been delegated to staff within the RFS.
It follows that the Commissioner is the responsible authority for a rural fire brigade where, either, a local authority has entered into a service agreement which provides that the local authority’s functions with respect to forming a brigade and maintaining the register of members is to be exercised by the Commissioner or where the local authority has refused or failed to establish a brigade after having been directed to do so. I cannot find a list of local authorities that have entered into a Rural Fire District Service Agreement, but I imagine it’s all of them.
Where the Commissioner is the responsible authority, the power to remove the member’s name has been delegated to the relevant Area Commander and Director Area Operations (Service Standard 1.3.1 Operational Delegations and Authorisations v3.7 (7 June 2022).
Conclusion
The Commissioner gets the power to remove a member from the register of members by virtue of a relevant Rural Fire District Service Agreement where a local authority has delegated those functions to the Commissioner or by virtue of s 15(4) if the local authority has refused or failed to establish a brigade when directed to do so. In those cases, the Commissioner is the ‘responsible authority for a rural fire brigade’ and can exercise the powers to remove a person’s name from the register of members as set out in regulation 8(2).
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.
Australian Emergency Law 
“Some for no result at all and some who have ended up in court, to have it settled out of court by the NSWRFS and a gag order placed with no details of the case to be released.“
1. As an entity of government, the RFS is bound by a thing called the “Model Litigant Policy for Civil Litigation“.
This is whole-of-government policy that requires NSWG agencies (which includes the RFS) to seek to settle civil matters as soon as possible, and as often as possible, rather than litigate each and every matter to the very death.
2. Confidentiality clauses are an “almost always” term of any such settlement. Not just in the RFS, but almost everywhere in the civil jurisdiction.
(Your correspondent does not appear to have noticed that the RFS. even though it could, does not often act against parties who breach this clause of an agreement)
3. While I agree that the Commissioner has a power to dismiss of the kind has described above, that power, to the extent that it delegated an FCO, is highly conditional
(and yes, to the average person, those conditions can appear complex and convoluted).
4. Your correspondent may have overlooked the general duty on any public official – including every officer of a rural fire brigade to afford a person Natural Justice and Procedural Fairness, both of which are quite different to the Rules of Evidence.
As far as I am aware all Rural Fire District Service Agreement are out of date and have not been signed by the commissioner. Where does this stand in regards to Local Authority, as the Council started the Brigade.
I couldn’t answer that without confirmation as to the status of the agreements, what they said, what the parties can be understood to have intended and what’s going on now. If everyone is still acting as if the agreements are in force then it may be inferred that they are continuing (a bit like a lease that continues after its nominated term if everyone keeps behaving as if it is still in force). There may be negotiations and interim agreements in place to continue them. Other councils may have made it clear that they are not intending to renew them (which I doubt). One would need many more facts to reach any conclusion on what it may mean.