Fire and Rescue NSW Act 1989 (NSW)

Fire and Rescue NSW Act 1989 No 192 An Act to provide for the protection of persons and property from fire and from hazardous material incidents, and for that purpose to constitute New South Wales Fire Brigades as a Department of the Government and to provide for permanent and retained fire brigades; to amend certain Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Fire and Rescue NSW Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Commissioner means the person employed in the Public Service as the Commissioner of Fire and Rescue NSW. community fire unit means a community fire unit established under section 74B. Council means the New South Wales Fire Brigades Advisory Council constituted by this Act. fire brigade means a permanent fire brigade or a retained fire brigade, but does not include a rural fire brigade. fire district means an area constituted as a fire district under section 5. flammable matter includes— (a) any substance capable of ignition or combustion by the application of heat, by means of sparks or spontaneously, and (b) any substance prescribed as flammable for the purposes of this definition. hazardous material means anything that, when produced, stored, moved, used or otherwise dealt with without adequate safeguards to prevent it from escaping, may cause injury or death or damage to property. hazardous material incident means an actual or impending land-based spillage or other escape of hazardous material that causes or threatens to cause injury or death or damage to property. local government area has the same meaning as area has in the Local Government Act 1993. officer in charge, in relation to a place at which a fire brigade is present, means the Commissioner or, if the Commissioner is absent— (a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or (b) if no members of a permanent fire brigade are present, the person for the time being in charge of any members of a retained fire brigade present at that place. owner, in relation to land or a building, means— (a) any person for the time being in actual receipt of, or entitled to receive, the rents and profits of the land or building, or (b) any person who, if the land or building were let to a tenant, would be entitled to receive the rents and profits of it, whether as beneficial owner, trustee, executor, mortgagee in possession, or as agent or attorney for any other person, or otherwise. permanent fire brigade means a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner. policy of insurance includes— (a) any certificate or declaration as to the existence of, and any agreement for, any insurance, or (b) any instrument in writing by which any contract of insurance is made or agreed to be made or is evidenced, but does not include a policy of reinsurance. prescribed waters means— (a) coastal waters of the State, within the meaning of Part 10 of the Interpretation Act 1987, and (b) waters within the limits of the State prescribed as the boundaries of a port under section 105 of the Ports and Maritime Administration Act 1995, and (c) other waters within the limits of the State prescribed by the regulations for the purposes of this definition. retained fire brigade means an association of persons for which an approval as a retained fire brigade is in force under section 9, but does not include a rural fire brigade. vessel means any ship, barge, punt, boat or other floating vessel used wholly or partly for storing or carrying goods or for carrying passengers. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes included in this Act (Schedule 1 excepted) do not form part of this Act. 4 Application of Act (1) This Act applies to all fire districts. (2) This Act applies to land-based hazardous material incidents (and to any fires that may result from them) that occur anywhere in the State except on prescribed waters. (3) A hazardous material incident that occurs in or on a building, bridge or other structure or on any body of water (not being part of prescribed waters) is taken to be land-based. (4) This section has effect subject to sections 20 and 20A. 5 Fire districts (1) In this section— reserved area means land within a national park, historic site or state conservation area within the meaning of the National Parks and Wildlife Act 1974 or any other land reserved or dedicated under that Act. (2) The Governor may, by order published in the Gazette, constitute an area as a fire district, the area so constituted being described by reference to a local government area or reserved area or in any other manner. Editorial note— For orders constituting fire districts, see the Historical notes at the end of this Act. (3) An area constituted as a fire district must not include any area that is within neither a local government area nor a reserved area. (4) A reference in an order under this section to a local government area or a reserved area is to be construed as a reference to that area with boundaries as at the date of publication of the order in the Gazette. 5A General functions of Commissioner (1) It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. (2) It is the duty of the Commissioner to take all practicable measures— (a) for protecting and saving life and property endangered by hazardous material incidents, and (b) for confining or ending such an incident, and (c) for rendering the site of such an incident safe. (3) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved and, in the case of a fire, it does not matter whether or not the persons are, or the property is, within a fire district. (4) The Commissioner is also authorised to— (a) as directed by the State Emergency Operations Controller, deal with an emergency where no other agency has lawful authority to assume command of the emergency operation, and (b) carry out, by accredited brigades, rescue operations allocated by the State Rescue Board, and (c) assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to, and to assist the State Emergency Recovery Controller to carry out emergency management functions relating to the recovery from, emergencies, in accordance with the State Emergency and Rescue Management Act 1989, and (d) assist, at their request, members of the NSW Police Force, the NSW Rural Fire Service, the NSW State Emergency Service or the Ambulance Service of NSW in dealing with any incident or emergency, and (e) maintain effective liaison with all emergency services organisations, and (f) carry out such other functions as may be assigned to the Commissioner by or under this or any other Act, or by the State Emergency Operations Controller or the Minister. 5B Commissioner subject to control and direction of Minister The Commissioner is, in exercising the Commissioner's functions, subject to the control and direction of the Minister. Part 2 Provision of fire brigades etc 6, 7 (Repealed) 8 Establishment, maintenance etc of fire brigades For the purpose of exercising the Commissioner's functions under this Part, the Commissioner may— (a) with the approval of the Minister, establish permanent fire brigades and form or assist in the formation of retained fire brigades, and (b) provide permanent and retained fire brigades with suitable premises and requisite equipment, and (c) maintain permanent fire brigades, and (d) pay subsidies to volunteer fire brigades and make payments to the members of retained fire brigades. 9 Retained fire brigades (1) The Minister may approve an association of persons as a retained fire brigade if satisfied that— (a) the association is formed for the purpose of extinguishing fires and of taking measures referred to in section 5A (2) in relation to hazardous material incidents, and (b) the carrying out of that purpose is not the sole or principal occupation or means of livelihood of those persons or a majority of them (whether or not they receive any payment for their services as members of the association). (2) The Minister may revoke such an approval at any time by notice in writing given to the captain of the retained fire brigade or published in the Gazette. (3) The trustees of any real or personal property of a retained fire brigade may vest that property in the Crown, to be held by the Crown subject to the provisions of this Act but free from any other trust. 10 Exercise of functions by officers and agents The Commissioner may exercise the Commissioner's functions under this Act by his or her officers or agents (including the members of any permanent fire brigade) or by the members of any retained fire brigade. 10A Protection of environment The Commissioner is to have regard to the principles of ecologically sustainable development described in section 6 (2) of the Protection of the Environment Administration Act 1991 in carrying out any function that affects the environment. Part 3 Fighting and preventing fires and dealing with hazardous material incidents Division 1 Powers at fires and hazardous material incidents 11 Brigades to proceed with speed to suspected fires or hazardous material incidents (1) When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. (2) When there is a report of a hazardous material incident, a fire brigade must, despite anything to the contrary in any Act— (a) proceed with all speed to the site of the incident, and (b) try by all possible means to render the site of the incident safe and save any lives and property that are in danger. 12 Investigation of reported fires and hazardous material incidents (1) The officer in charge may, with or without members of a fire brigade, enter any place— (a) in respect of which an alarm of fire is raised to ascertain whether there is a fire at the place, or (b) in respect of which a report of a hazardous material incident has been made to ascertain whether there is any hazardous material at the place that is, or is about to be, the subject of a hazardous material incident. (2) Reasonable force, whether by breaking down gates or fences or breaking open doors or otherwise, may be used to gain entry. 13 General powers of officers at fires and hazardous material incidents (1) At a fire, the officer in charge— (a) may take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire, and (b) is to control and direct the operations of any fire brigade. (1A) At the site of a hazardous material incident, the officer in charge— (a) may take such measures as the officer thinks proper for the protection and saving of life and property, for confining and ending the incident and for rendering the site safe, and (b) is to control and direct the operations of any fire brigade. The site is taken to be such area in the vicinity of the incident as is for the time being determined by the officer in charge. (2) If the fire is a bush fire (including a grass fire), the officer in charge is, as far as practicable, to carry into effect any plan of operations in force under section 52 of the Rural Fires Act 1997 in relation to the place where the fire occurs. (3) The following provisions of this Division are intended to be particular examples of the way in which functions under this section can be exercised and are not intended to limit the generality of this section. 14 Closure of streets and public places (1) The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire. (2) The officer in charge at a hazardous material incident may cause any street or public place in the vicinity of the site of the incident to be closed to traffic until the site has been rendered safe. 15 Use of water etc The officer in charge at a fire or hazardous material incident may, for the purpose of extinguishing or controlling a fire or confining or ending the incident or rendering the site of the incident safe, without payment— (a) take and use any water from any source on any land, and (b) cause water to flow into or be shut off from any main or pipe. 16 Taking possession etc of buildings and vessels during fires or hazardous material incidents (1) During a fire, the officer in charge may take possession of any building, vehicle or vessel, and any property in it or on it, if it is so situated that a fire in it would endanger any structure or any property in a structure. (2) The officer in charge may, to control, extinguish or prevent the spread of the fire, cause such a building to be pulled down or destroyed and cause such a vehicle to be removed or destroyed and such a vessel to be removed or sunk, and may remove any such property and keep it in safe custody. (2A) For the purpose of confining or ending a hazardous material incident or rendering the site of such an incident safe, the officer in charge may— (a) take possession of any building, vehicle or vessel in the vicinity of that site and any property (whether or not the property consists of a hazardous material) in it or on it, and (b) cause such a vehicle or vessel to be removed or remove any such property and keep it in safe custody. (3) Whenever practicable, the consent of the Harbour Master, or other officer having the control of the removal of vessels in the port, is to be obtained before any vessel is removed or sunk. 17 Making walls and buildings safe (1) The officer in charge at a fire may during the fire or immediately after it, pull down, destroy, or shore up any wall or building damaged or rendered insecure by the fire or which, in the officer's opinion, may be dangerous to life or property. (1A) The officer in charge at a hazardous material incident may, during the incident or immediately after it, pull down, destroy or shore up any wall or building damaged or rendered insecure by the incident or which, in the officer's opinion, may be dangerous to life or property. (2) The cost of doing so is to be borne by the owner of the wall or building and is to be paid to the Commissioner. 18 Disconnection etc of gas and electricity (1) The officer in charge at a fire may cause the supply of gas or electricity to any premises on fire, or to adjacent premises, to be shut off or disconnected. (1A) The officer in charge at a hazardous material incident may cause the supply of gas or electricity to any premises in the vicinity of the site of the incident to be shut off or disconnected. (2) In exercising a power under this section, the officer in charge may require the person who supplies the gas or electricity concerned to immediately send some competent person to the scene for the purpose of shutting it off or disconnecting it in accordance with the officer's directions. (3) A person must comply with any such requirement and directions. (4) A person who supplies gas or electricity is not liable for any damages because of any interruption of that supply under this section. 19 General power to remove persons or obstacles The officer in charge at a fire or hazardous material incident may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire or hazardous material incident might, in the officer's opinion, interfere with the work of any fire brigade or the exercise of any of the officer's functions. Division 2 Special powers 20 Fires outside areas to which Act applies (1) The Commissioner may permit any members of a fire brigade, with engines and appliances, to go beyond the limits of any fire district for the purpose of extinguishing any fire. (2) In such a case the provisions of this Act apply to the fire and to anything done at the fire as if the fire were within a fire district. 20A Hazardous material incidents outside area to which Act applies (1) The Commissioner may, at the request of a port authority, permit any members of a fire brigade to attend the site of a hazardous material incident (whether land-based or otherwise) on that part of prescribed waters in relation to which the port authority exercises functions. (2) At the site of such a hazardous material incident the members of the fire brigade may take such measures as the officer in charge of the members thinks proper for the protection and saving of life and property, for confining and ending such an incident and for rendering the site of such an incident safe. (3) In such a case the provisions of this Act apply to the hazardous material incident and to anything done at the site of the incident as if the incident were not on prescribed waters. (4) In this section— port authority means— (a) the Minister administering the Ports and Maritime Administration Act 1995, or (b) the Port Corporation (within the meaning of the Ports and Maritime Administration Act 1995) exercising port safety functions (within the meaning of that Act), or (c) the port operator of a private port under the Ports and Maritime Administration Act 1995. site includes any area in the vicinity of the incident as is for the time being determined by the officer in charge. 21 Power to clear fire breaks etc (1) The Commissioner is authorised to— (a) plough, burn, clear or otherwise establish or maintain fire breaks on any land (whether or not within a fire district), and (b) remove, burn or destroy any flammable matter or other material on any land (whether or not within a fire district) if satisfied that the action is necessary to prevent the outbreak, spread or extension of a bush fire or other fire. (2) The power conferred by this section must not be exercised except— (a) for the purpose of controlling or extinguishing a fire or protecting persons endangered by fire from injury or death or property endangered by fire from damage, or (b) with the permission of the person apparently in occupation or control of the land. 22 Authority to enter land and buildings (1) The Commissioner is authorised to enter, by his or her agents, any land, building or vessel where any fire or hazardous material incident has occurred and to retain possession of the land, building or vessel for a reasonable time or until an inquest or inquiry has been held relating to the fire or incident. (2) Subsection (1) does not apply if entry is made only for the purpose of assisting in the prevention of fires by investigating the cause or origin of a fire. Division 2A Special powers to enter land to investigate fires 22A Object of Division The object of this Division is to assist in the prevention of fires by expressly authorising entry onto land to investigate the cause or origin of a fire. 22B Meaning of "land" In this Division, land includes any building on the land and any vessel. 22C 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 and the land is safe to enter. (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 22D or the consent of the owner or occupier of the land concerned. 22D Search warrants (1) The Commissioner may apply to an authorised officer for a search warrant for any land if the Commissioner reasonably believes that entry onto the land is necessary for the purposes of the investigation of the cause or origin of any fire that has occurred on that land or any adjacent land. (2) An authorised officer to whom an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the Commissioner or any other person named in the warrant to enter land for the purposes of the investigation of the cause or origin of any fire that has occurred on that land or any adjacent land. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) In this section— authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. Division 3 Command structure 23 Commissioner may authorise others to exercise functions (1) Any function conferred or imposed on the Commissioner by this Part may be exercised by any officer or member of a fire brigade authorised for the purpose by the Commissioner. (2) Such an authorisation need not be in writing and operates to authorise the exercise of functions accordingly. 24 Officer in charge may authorise others to exercise functions (1) The officer in charge at a fire or hazardous material incident may authorise any officer or member of a fire brigade to exercise all or specified functions under this Part of the officer in charge. (2) Such an authorisation need not be in writing and operates to authorise the exercise of functions accordingly. 25 Duty to recognise authority of officers (1) Every member of the NSW Police Force and all other persons are to recognise— (a) the authority of the Commissioner and any member of a fire brigade acting under the Commissioner's orders, and (b) the authority of the officer in charge at a place at which a fire brigade is present. (2) It is the duty of every member of the NSW Police Force to support the authority of such a person and to assist him or her in enforcing compliance with any orders given under this Act or the regulations. (3) This section applies only in respect of the protection of persons from injury or death, or of property from damage, when the persons are or the property is endangered by fire or a hazardous material incident. 26 Interstate assistance (1) A person who is a member of an interstate fire brigade and present at a fire in a fire district for the purpose of trying to extinguish it or to save any lives or property in danger there must— (a) obey any orders given to the person by the officer in charge at the fire, and (b) place any gear or equipment in the person's charge at the disposal of the officer in charge at the fire. (1A) A person who is a member of an interstate fire brigade and present at a hazardous material incident in the State for the purpose of trying to confine or end the incident, to render the site of the incident safe or to save any lives or property in danger there must— (a) obey any orders given to the person by the officer in charge at the incident, and (b) place any gear or equipment in the person's charge at the disposal of the officer in charge at the incident. (2) While there is no officer in charge at the fire or incident, the member of the interstate fire brigade who has charge of the members of that brigade present at the fire or incident is, for the purposes of this Act, to be considered to be the officer in charge at the fire or incident. (3) In this section— interstate fire brigade means a fire brigade, by whatever name called, established under a law of Queensland, Victoria, South Australia or the Australian Capital Territory. Division 4 Inspection etc 27 Inspection etc of brigades The Commissioner may inspect fire brigades and their premises and equipment and enforce compliance with the regulations in respect of them. 28 Inspection of theatres etc The Commissioner may at any time enter any theatre, hall, building or place used for public entertainment or public assembly to ascertain whether provisions made by or under any Act for the prevention of fire or for the safety of the public are being or have been contravened. 29 Inspection—dangerous goods, lighting of fires (1) The Commissioner may at any time enter any land, building or vessel for the purpose of ascertaining whether provisions made by or under any Act relating to the storage or keeping of explosives or flammable matter, or relating to the lighting of fires, are being or have been contravened. (2) If satisfied that such a provision is being contravened, the Commissioner may serve on the occupier of the land or building concerned or on the master, owner or agent of the vessel concerned, a notice requiring the contravention to be remedied within a specified time. (3) A person must comply with such a notice within the time specified. Maximum penalty—50 penalty units. 30 Information may be requested from owner (1) The following persons are authorised to make a request under this section— (a) the Commissioner, (b) (Repealed) (c) any member of a fire brigade. (2) On request made by a person authorised by this section, the owner of premises where a fire or hazardous material incident occurs, the owner or driver of a vehicle conveying personal property and involved in a hazardous material incident, or the owner of any personal property on any such premises or vehicle or which has been destroyed or damaged by fire or such an incident, must— (a) inform the authorised person whether the premises or property were or was insured at the time or during the period specified by the person, and (b) give the authorised person full particulars of any such insurance, including the name of the insurer and the amount of the insurance. Personal property includes any hazardous material. (3) A person who contravenes subsection (2), or in purported compliance with that subsection gives any information knowing it to be false or misleading in a material particular, is guilty of an offence. Maximum penalty—5 penalty units. Division 5 Offences 31 Fire brigade not to be constituted unless authorised (1) It is unlawful for any persons to constitute or maintain a fire brigade for the purpose of extinguishing fire within any fire district except— (a) as a permanent or retained fire brigade under the authority of this Act, or (b) on premises or land owned or used by the persons or at which they are employed. (1A) It is unlawful for any persons to constitute or maintain any body for the purpose of taking measures referred to in section 5A (2) in relation to hazardous material incidents except— (a) as a permanent or retained fire brigade under the authority of this Act, or (b) on premises or land owned or used by the persons or at which they are employed, or (c) where the body consists of employees of the persons and the body is constituted to deal with incidents involving hazardous materials owned by or transported by vehicles or other means of transport owned by the persons, or (d) with the approval of the Commissioner. (2) A person who acts in contravention of this section is guilty of an offence. Maximum penalty—20 penalty units. 32 Concealing fire hydrant It is an offence for a person to— (a) wilfully cover up, enclose or conceal any fire hydrant so as to make it difficult to find, or (b) obliterate or remove any mark, sign or letter used to indicate the position of or distinguish a fire hydrant. Maximum penalty—20 penalty units. 33 Damaging fire brigade equipment etc A person who wilfully damages or destroys any building, engine, hose, ladder or other thing belonging to or in use by any fire brigade is guilty of an offence. Maximum penalty— (a) for a first offence—20 penalty units or imprisonment for 1 month, or both, or (b) for a second or subsequent offence—50 penalty units or imprisonment for 12 months, or both. 34 False alarms A person who tampers with any fire alarm or signalling apparatus for giving notice of fire or who intentionally or recklessly gives any false alarm of fire is guilty of an offence. Maximum penalty— (a) for a first offence—20 penalty units or imprisonment for 1 month, or both, or (b) for a second or subsequent offence—50 penalty units or imprisonment for 12 months, or both. 35 (Repealed) 35A (Repealed) Division 6 Miscellaneous 36 Commissioner may be represented at inquiry (1) The Commissioner may, at any inquest or inquiry relating to the cause or origin of any fire or hazardous material incident, be represented by a person appointed by the Commissioner for the purpose. (2) The Commissioner's representative may adduce evidence, examine witnesses and address the court at the inquest or inquiry. 37 Payments for voluntary services The Commissioner may make payments for voluntary or special services rendered to the Commissioner or to any fire brigade. 38 Certain damage to be covered by insurance (1) Any damage to property caused by the Commissioner, the officer in charge at a fire or a hazardous material incident, any member of a fire brigade (including an interstate fire brigade within the meaning of section 26) or any member of a community fire unit in the exercise in good faith of functions under this or any other Act is to be considered to be damage by fire for the purposes of any policy of insurance against fire covering the property. (2) This section applies only in respect of damage to property caused in the exercise of a function to protect persons from injury or death or property from damage if those persons are or the property is endangered by fire or endangered by the escape or likely escape of hazardous material. 39 Use of water for training and demonstration The Commissioner may, by arrangement with the owner or occupier or other person having control or management of land containing a water source, take and use, free of charge, water from that source for the purpose of training or demonstration by a fire brigade. Part 4 Charges for attending fires and other services 40 Charges for attending fires or hazardous material incidents (1) Except as provided by this section, no charge is to be made for the attendance at a fire of any members of a fire brigade. (2) If a fire occurs in any building, vehicle, vessel or property outside a fire district to which this Act applies, the Commissio