New South Wales: Rural Fires Act 1997 (NSW)

Rural Fires Act 1997 No 65 An Act to establish the NSW Rural Fire Service and define its functions; to make provision for the prevention, mitigation and suppression of rural fires; to repeal the Bush Fires Act 1949; to amend certain other Acts; and for other purposes. Part 1 Preliminary Note. This Part contains provisions that are helpful in understanding the Act as a whole, as well as some machinery provisions. It also provides for the constitution of all those parts of the State that are not within fire districts (within the meaning of the Fire and Rescue NSW Act 1989) as rural fire districts. 1 Name of Act This Act is the Rural Fires Act 1997. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are to provide— (a) for the prevention, mitigation and suppression of bush and other fires in local government areas (or parts of areas) and other parts of the State constituted as rural fire districts, and (b) for the co-ordination of bush fire fighting and bush fire prevention throughout the State, and (c) for the protection of persons from injury or death, and property from damage, arising from fires, and (c1) for the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from damage arising from fires, and (d) for the protection of the environment by requiring certain activities referred to in paragraphs (a)–(c1) to be carried out having regard to the principles of ecologically sustainable development described in section 6 (2) of the Protection of the Environment Administration Act 1991. 4 Definitions (1) Definitions are contained in the Dictionary at the end of this Act. Note. Expressions used in this Act (or in a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act. (2) Words and expressions used in the State Emergency and Rescue Management Act 1989 and in this Act have the same meanings in this Act as they have in the 1989 Act. (3) Subsections (1) and (2) do not apply to the extent that the context or subject-matter otherwise indicates or requires. Note. Some expressions defined in the State Emergency and Rescue Management Act 1989 that are used in this Act are— combat agency means the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency. emergency means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which— (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, or (c) causes a failure of, or a significant disruption to, an essential service or infrastructure, being an emergency which requires a significant and co-ordinated response. emergency services organisation means the following— (a) Ambulance Service of NSW, (b) Fire and Rescue NSW, (c) a fire brigade within the meaning of the Fire and Rescue NSW Act 1989, (d) NSW Police Force, (e) NSW Rural Fire Service, (f) State Emergency Service, (g) Surf Life Saving New South Wales, (h) New South Wales Volunteer Rescue Association Inc, (i) Volunteer Marine Rescue NSW, (j) an agency that manages or controls an accredited rescue unit, (k) a non-government agency that is prescribed by the regulations for the purposes of this definition. State Emergency Management Plan means the State Emergency Management Plan referred to in section 12 of the State Emergency and Rescue Management Act 1989. 5 Notes Notes in the text of this Act do not form part of this Act. 6 Rural fire districts (1) A rural fire district is constituted by this section for the area of each local authority, with boundaries of the district being the same as the boundaries of the area as at the date of commencement of this section. Note. The Dictionary defines area of a local authority. The area of a council is land within the local government area of the council. The area of the person appointed under section 7A is that part of the Western Division that is not within the local government area of a council. The area of the Lord Howe Island Board is Lord Howe Island. (2) A rural fire district is not constituted by this section for, and does not include, any land within an area that is within a fire district. Note. A fire district means land within a fire district constituted under the Fire and Rescue NSW Act 1989. (3) If the boundaries of the area of a local authority for which a rural fire district is constituted by this section change after the commencement of this section, the boundaries of the rural fire district change so as to correspond to the boundaries of the area. (4) If the whole of the area of a local authority for which a rural fire district is constituted by this section is dissolved after the commencement of this section, the rural fire district is dissolved. (5) If part of the area of a local authority for which a rural fire district is constituted is dissolved after the commencement of this section, the rural fire district constituted for the area is taken to have been constituted for the remaining part of the area. 7 Responsible local authorities in rural fire districts (1) A function conferred or imposed by or under this Act on a local authority for and in respect of a rural fire district is to be exercised— (a) by the local authority for the area for which the district is constituted under section 6, or (b) if, under subsection (2), two or more local authorities agree to combine responsibility for and in respect of their rural fire districts—by the local authorities jointly or, if a local authority is nominated in the agreement, by the local authority or local authorities nominated in the agreement, or (c) if, under subsection (3), two local authorities agree that one of the local authorities is to have responsibility for and in respect of the whole or part of the rural fire district of the other local authority—by the local authority nominated in the agreement as the local authority to be responsible for the whole or part of that rural fire district. (2) Two or more local authorities may agree in writing to combine responsibility for and in respect of their rural fire districts. Responsibility for those rural fire districts is to be exercised jointly by the local authorities or, if the authorities nominate one of them in the agreement as the responsible authority, by that authority. (3) A local authority may agree in writing with another local authority that the other local authority have responsibility for or in respect of the whole or part of the rural fire district for the area of the local authority. 7A Local authority for Western Division (1) The following person is the local authority for this Act for land within the Western Division that is not within a local government area— (a) a person appointed by the Minister, or (b) if a person is not appointed by the Minister—the Commissioner. (2) The Minister may revoke an appointment under subsection (1)(a) at any time or for any reason. (3) A person appointed under subsection (1)(a) (except the Commissioner or a person who is an employee of a government sector agency within the meaning of the Government Sector Employment Act 2013) is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the person. Part 2 NSW Rural Fire Service Note. This Part establishes the NSW Rural Fire Service, and provides for its composition, functions and management. The Service is to be managed and controlled by the Commissioner of the NSW Rural Fire Service. The Commissioner is responsible for issuing the Service Standards, which are the guidelines in respect of the standard operating procedures to be followed by members of the Service. The Commissioner determines the duties of certain members of the Service (staff of the Service, including fire control officers, deputy fire control officers and ancillary fire control staff). The fire control officers, deputy fire control officers and ancillary fire control staff are employed under the Government Sector Employment Act 2013 and are responsible for a number of functions, including the supervision and direction of functions exercised by or under the Act by rural fire brigades and groups of rural fire brigades. Division 1 The Service 8 NSW Rural Fire Service (1) There is established by this Act the NSW Rural Fire Service. (2) The Service comprises the following members— (a) the Commissioner and other staff of the Service, (b) (Repealed) (c) volunteer rural fire fighters. (3) In this Act— volunteer rural fire fighters means— (a) officers and other members of rural fire brigades, and (b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade. 9 Functions of Service (1) The NSW Rural Fire Service has the following functions— (a) to provide rural fire services for New South Wales, (b) to issue public warnings about bush fires and bush fire threats in the State for the purpose of protecting life and property, (c) to provide advisory services (whether within or outside the State) relating to fire fighting and other matters with respect to which it has expertise, (d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation, (e) to carry out, by accredited brigades, rescue operations allocated by the State Rescue Board, (f) to 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, (g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the State Emergency Service or the Ambulance Service of NSW in dealing with any incident or emergency, (h) to maintain effective liaison with all emergency services organisations, (i) to carry out such other functions as may be assigned to it by or under this or any other Act, or by the State Emergency Operations Controller or the Minister, (j) to do anything necessary for, or incidental to, the exercise of its functions. (2) The functions of the Service are to be exercised in accordance with the State Emergency and Rescue Management Act 1989 and, in particular, with the requirements under the State Emergency Management Plan or any state of emergency under that Act. (3) The Service 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. (4) In this section— rural fire services includes the following— (a) services for the prevention, mitigation and suppression of fires in rural fire districts, (b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts, (b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts, (c) the provision of services referred to in paragraphs (a)–(b1) throughout the State in accordance with Part 3, (d) any other service prescribed by the regulations. Note. Other provisions of this Act also affect the exercise of Service functions. See, for example, sections 38 and 133 (2). Division 2 The Commissioner and other staff of Service 10 The Commissioner and other staff (1) A Commissioner of the NSW Rural Fire Service, a fire control officer for each rural fire district and such other staff as may be necessary for the purposes of this Act are to be employed under Part 4 of the Government Sector Employment Act 2013. (2) Subsection (1) does not apply to the members of the Service referred to in section 8 (2) (b) and (c). (3) The Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a Public Service agency or public authority. (4) For the purposes of this Act, a person whose services are made use of under this section is a member of the staff of the Service. 11 Ministerial control The Commissioner is, in the exercise of the Commissioner's functions, subject to the control and direction of the Minister. 12 Functions of Commissioner (1) The Commissioner is responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act. (2) The Commissioner may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff. (3) The Commissioner may, when the Commissioner considers it appropriate to do so, conduct an audit of all or any activities of members of the Service to determine whether the members are carrying out the activities effectively and doing so efficiently and in compliance with the Service Standards. (4) The ranks of members of the Service are to be determined by the Commissioner. (5) The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the Service. (6) This section is subject to the other provisions of this Act and the regulations. 12A Entry into rural fire district service agreements (1) Without limiting section 12, the Commissioner may enter into a rural fire district service agreement (a service agreement) with any local authority or authorities responsible for a rural fire district or districts. (2) Without limitation, a service agreement— (a) may specify functions imposed on the local authority by or under this Act that are to be exercised by the Commissioner during a period (if any) specified in the agreement, and (b) may specify any obligations to be imposed on the local authority as a consequence of the Commissioner agreeing to exercise those functions, and (c) may set performance targets for the exercise of those functions, and (d) may provide for the evaluation and review of results in relation to those targets. (3) The Commissioner and the local authorities must, as far as practicable, exercise the functions and carry out the obligations in accordance with the service agreement. (4) The Commissioner is to report the results of the performance under a service agreement during a financial year to the local authority or authorities concerned within 3 months after the end of that year. 13 Service Standards (1) The Commissioner may from time to time issue written policy statements to members of the Service for or with respect to procedures to be followed in connection with the operation, management and control of the Service. (2) Without limiting the matters with respect to which statements may be issued under this section, statements may be issued in respect of standard operating procedures, including procedures in respect of the following— (a) fire reporting, (b) operational co-ordination, (c) operational planning, (d) bush fire risk management planning, (e) fire fighting assistance planning, (f) standards of fire cover reporting, (g) implementation of training standards, (h) communications, (i) brigade management, (j) community education, (k) protocols on relevant matters, (l) health and safety. (3) The Commissioner is, wherever practicable, to consult with the Advisory Council before issuing policy statements under this section. 14 Delegation by Commissioner (1) The Commissioner may delegate to any member of the Service any of the Commissioner's functions under this Act, other than this power of delegation. (1A) Without limiting subsection (1), if the Commissioner is the local authority under section 7A, the Commissioner may delegate to a member of the Service— (a) the function of being the local authority, or (b) the exercise of a function of the Commissioner as the local authority. (2) The Commissioner may delegate to the Commissioner of Fire and Rescue NSW any of the Commissioner's functions under the following provisions, but only to the extent that the functions are exercisable in respect of land within a fire district— (a1) section 70 (Bush fire hazard reduction work in default of compliance with notice), (a) section 73 (Bush fire hazard reduction by Commissioner), (b) section 100B (Bush fire safety authorities), (c) section 4.14 (Consultation and development consent—certain bush fire prone land) of the Environmental Planning and Assessment Act 1979, (d) section 10.3 (Bush fire prone land) of the Environmental Planning and Assessment Act 1979. Division 3 Rural fire brigades 15 Formation of rural fire brigades (1) 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. (2) Two or more local authorities may jointly form a rural fire brigade for a rural fire district constituted for their areas. (3) A rural fire brigade may be formed on the initiative of the local authority or local authorities concerned or on the request of any interested person. (4) The Commissioner may form a rural fire brigade for a rural fire district if any local authority requested to form a rural fire 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. 16 Formation of groups of rural fire brigades The fire control officer for a rural fire district may form two or more rural fire brigades formed for the district into a group of rural fire brigades. 17 Disbandment of rural fire brigades (1) A rural fire brigade may be disbanded at any time by the person or body who formed it by notice in writing given to the officer in charge of the rural fire brigade. (2) The disbandment takes effect 21 days after the notice is given. (3) The officer in charge of the rural fire brigade concerned may, with the agreement of a majority of the members of the rural fire brigade, lodge an appeal in writing to the Minister against the decision to disband the rural fire brigade. (4) The appeal must be lodged before the disbandment takes effect. (5) After considering the appeal, the Minister may— (a) confirm the disbandment, or (b) withdraw the notice. (6) The disbandment of a rural fire brigade that is the subject of an appeal does not take effect until the appeal is either withdrawn or finally determined by the Minister and the result notified to the officer in charge of the rural fire brigade concerned. 18 Area of operations and officers of rural fire brigades (1) The body or person that forms a rural fire brigade is— (a) to determine the territory in which the brigade is to operate, and (b) to appoint as the officers for the brigade those persons selected, in accordance with the Service Standards, to be officers for the brigade by the members of the brigade. Note. Under section 47 of the Interpretation Act 1987, conferral of a power to appoint a person to an office includes a power to remove or suspend the person from the office. (2) The Commissioner may appoint officers for the rural fire brigade if the body or person that forms the brigade fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner. 19 Area of operations and officers of groups of rural fire brigades (1) The fire control officer who forms a group of rural fire brigades is to determine the territory in which the group is to operate. (2) The officers of the rural fire brigades forming a group of rural fire brigades are those persons selected, in accordance with the Service Standards, to be officers for the group by the members of the rural fire brigades forming the group. A person selected to be an officer holds office for the period specified in the Service Standards. 20 Members of rural fire brigades (1) The body or person that forms a rural fire brigade is required to keep a register of members of the brigade in accordance with the Service Standards. (2) The members of a rural fire brigade are the persons listed on the register for the brigade kept under this section. 21 Functions of officers of rural fire brigades (1) An officer of a rural fire brigade or group of rural fire brigades has the functions conferred or imposed on the officer by or under this or any other Act. Note. Functions may be conferred under the Act by the Service Standards. (2) An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer— (a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or (b) at a place outside that rural fire district— (i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or (ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or (iii) within a fire district—with the approval of an officer of Fire and Rescue NSW. (3) An officer or member of a rural fire brigade or group of rural fire brigades is not, merely because of the authority conferred on the officer or member to exercise any functions under this Act, to be taken to be an employee of the State, a Minister of the State or a local authority. 22 General powers of rural fire brigade officers and others (1) An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency— (a) exercise any function conferred on the officer by or under this Act, or (b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function. (2) The officer may exercise such a function or take such an action with such persons as the officer considers necessary for the purpose. (2A) Any function that may be exercised, or action that may be taken, by an officer of a rural fire brigade or group of rural fire brigades because of this section may be exercised or taken by the Commissioner. (3) The following provisions of this Division are intended to be particular examples of the way in which functions referred to in this section can be exercised and are not intended to limit the generality of this section. 22A Power to remove persons or obstacles An officer of a rural fire brigade or group of rural fire brigades may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer's opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer's functions. 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. Note. Premises is defined in the Dictionary. 24 Closure of streets and public places The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic. 25 Making premises safe (1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things— (a) pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land, (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land, (c) destroy or remove or cause to be destroyed or removed any living or dead vegetation on any land, (d) establish fire breaks on any land or cause fire breaks to be established on any land. (2) The cost of doing something pursuant to subsection (1) (b) is to be borne by the owner of the building or structure and is to be paid to the Commissioner. (3) The Commissioner may waive payment of the whole or any part of an amount payable under subsection (2) in such circumstances as the Commissioner thinks appropriate. 26 Use of water and works (1) An officer of a rural fire brigade or group of rural fire brigades may for the purpose of controlling or suppressing a fire— (a) take and use without any payment any water from any source on any land, or (b) use without any payment all or any water mains, water plugs, valves, pipes and works of water supply vested in or under the management or control of any water supply authority, public authority or body. (2) The Commissioner may, by arrangement with the owner or occupier or 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 any rural fire brigade. 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. 28 Damage to property and the environment (1) Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged. (2) Any provision, stipulation, covenant or condition in any agreement that negates, limits or modifies or purports to negate, limit or modify the operation of this section is void and of no effect. 29 Notice of entry (1) A person authorised to enter premises under this Division may enter the premises without giving notice— (a) if entry to the premises is made with the consent of the owner or occupier, or (b) if the entry is made to a part of the premises that is open to the public, or (c) if entry is required urgently and the case is one in which the Commissioner has authorised in writing (either generally or in a particular case) entry without notice. (2) In any other case, the person must give the owner or occupier of the premises reasonable written notice of the intention to enter the premises. 30 Care to be taken In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. 31 Use of force (1) Reasonable force may be used for the purpose of gaining entry to premises but only if the Commissioner— (a) has authorised in writing the use of force in the particular case, or (b) has specified in writing the circumstances that are required to exist before force may be used and the particular case falls within those circumstances. (2) If a person authorised to enter premises uses force to do so, the person must, as soon as practicable, inform the Commissioner. (3) The Commissioner must give notice of the use of force to such persons or authorities as appear to the Commissioner to be appropriate in the circumstances. 32 Authority to enter premises (1) A power to enter premises, or to take action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises. (2) The authority must be a written authority that— (a) states that it is issued under this Act, and (b) gives the name of the person to whom it is issued, and (c) describes the nature of the powers conferred and the source of the powers, and (d) states the date (if any) on which it expires, and (e) describes the kind of premises to which the power extends, and (f) bears the signature of the Commissioner. 33 Voluntary work by rural fire brigade (1) With the consent of the fire control officer for the rural fire district in which it operates or the Commissioner, a rural fire brigade may, in or out of the rural fire district, voluntarily co-operate with a public authority in the exercise of any function of the public authority prescribed by the regulations for the purposes of this section. (2) If— (a) a public authority, or any member of a public authority, has immunity from legal proceedings that would otherwise lie in relation to the exercise by the authority or member of a function, and (b) a rural fire brigade co-operates under this section in the exercise of the function, each officer and other member of the brigade taking part has the same immunity. Division 3A Power to enter land to investigate fires 33A 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. 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. 33C 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. 33D Functions of Commissioner that may be exercised by others (1) Any function conferred or imposed on the Commissioner under section 33B or 33C may be exercised by the Commissioner of Fire and Rescue NSW, but only to the extent that the function is exercisable in respect of land within a fire district. (2) Without limiting section 14 (1), the Commissioner may delegate any function conferred or imposed on the Commissioner under section 33B or 33C to a fire fighting authority or a member of staff of a fire fighting authority. (3) Subsection (1) does not limit any of the functions of the Commissioner of Fire and Rescue NSW under the Fire and Rescue NSW Act 1989. (4) Any function conferred or imposed on the Commissioner under section 33B or 33C may be exercised by a police officer for the purpose of determining whether the cause or origin of the fire should be the subject of a criminal investigation. (5) Subsection (4) does not limit any of the functions of a police officer under this or any other Act. Division 4 Fire control officers 34 Deputy fire control officers (1) A deputy fire control officer is to act as fire control officer for the district— (a) at the direction of the fire control officer, or (b) in the event of the absence, illness or other inability to act of the fire control officer, or (c) during a vacancy in the office of the fire control officer. (2) A deputy fire control officer— (a) when acting as a fire control officer under this section, has and may exercise all the functions of a fire control officer by or under this Act, and (b) when acting under the direction of a fire control officer (other than a direction under subsection (1)) has and may exercise such of the functions conferred on a fire control officer by or under this Act as may be necessary or convenient to be exercised for the purpose of carrying out the direction. 35 Acting fire control officer (1) If both the fire control officer and all the deputy fire control officers for a rural fire district are absent from duty, the Commissioner may appoint a person to be acting fire control officer during the absence. (2) An acting fire control officer has the functions of the fire control officer and anything done by the acting fire control officer in the exercise of those functions has effect as if it were done by the fire control officer. 36 Councillors not to be appointed as fire control officers, deputy fire control officers or acting fire control officers (1) A councillor within the meaning of the Local Government Act 1993 is not eligible to be appointed as a fire control officer, deputy fire control officer or acting fire control officer. (2) Any fire control officer, deputy fire control officer or acting fire control officer who becomes a councillor ceases to be such an officer on a date that is 3 months after the date on which his or her election as a councillor takes effect unless the officer otherwise vacates his or her office before that date. (3) Any such fire control officer, deputy fire control officer or acting fire control officer does not, by virtue of holding office as such an officer, hold an office or place of profit for the purposes of section 275 (2) of the Local Government Act 1993. 37 Responsibilities of fire control officers and local authorities (1) A fire control officer is, subject to any direction of the Commissioner, responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer. (2) (Repealed) (3) The local authority for the rural fire district for which a fire control officer is appointed must provide facilities and accommodation to enable the fire control officer to exercise his or her functions. (4) Any such facilities and accommodation are to be of a standard approved by the Commissioner in consultation with the local authority. 38 Functions of fire control officers (1) A fire control officer appointed under this Part has all the powers and immunities conferred on an officer in charge of a rural fire brigade. (2) A fire control officer— (a) has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and (b) has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, and (c) must inspect, or cause to be inspected, at least once each year all fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, and (d) must take or cause to be taken all necessary measures for suppressing fires in the rural fire district and protecting and saving life and property in case of fire, and (e) (Repealed) (3) (Repealed) (4) A fire control officer may exercise a function referred to in subsection (2) (d) only if the fire control officer (and any member of the Service assisting the fire control officer in the exercise of the function) complies with the conditions (if any) imposed on the exercise of the function specified in any relevant bush fire management plan or other relevant plan of the authority responsible for the managed land of which the fire control officer is aware. Division 5 Command structure 39 Commissioner may authorise officers and members of rural fire brigades to exercise functions (1) Any function conferred or imposed on the Commissioner by this Act may be exercised by any officer or member of a rural fire brigade or group of rural fire brigades authorised for the purpose by the Commissioner. (2) Such an authorisation need not be in writing and operates to authorise the exercise of the functions accordingly. However, the Commissioner must keep a record of all authorisations given under this section. 40 Officer in charge may authorise others to exercise functions (1) The officer in charge at a fire, incident or other emergency may authorise any officer or member of a rural fire brigade or group of rural fire brigades to exercise all or specified functions under this Act of the officer in charge at a fire, incident or other emergency. (2) Such an authorisation need not be in writing and operates to authorise the exercise of the functions accordingly. 41 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 rural fire brigade or group of rural fire brigades or fire control officer acting under the Commissioner's directions, and (b) the authority of the officer in charge at a fire, incident or other emergency at which a rural fire brigade is present or of an officer of a rural fire brigade directly assisting the person primarily responsible for responding to a fire, incident or other emergency. (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 directions 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 there is imminent danger of such a fire. 42 (Repealed) 43 Interstate assistance at fires (1) A person who is a member of an interstate fire brigade and is present at a fire within a rural fire district for the purpose of mitigating or suppressing that fire 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. (2) While there is no officer in charge at the fire, the member of the interstate fire brigade who has the charge of the members of that brigade present at the fire is, for the purposes of this Act, to be considered the officer in charge at the fire. (3) A member of an interstate fire brigade who is present at a fire within a rural fire district for the purpose of mitigating or suppressing that fire is taken to have and may exercise all the functions that, if the fire were in the area of a rural fire brigade, the officer in charge of that rural fire brigade would have and be capable of exercising and performing. (4) In this section— interstate fire brigade means a fire brigade (by whatever name called) established under a law of any place outside New South Wales. Part 3 Co-ordinated bush fire fighting Note. This Part charges the Commissioner with the responsibility of controlling and co-ordinating the action to be taken by persons and bodies involved in or associated with the prevention, mitigation or suppression of bush fires in dealing with fires requiring a response beyond the area or locality in which the fires are burning. The Commissioner is authorised to give directions to persons, members of the Service, officers of other emergency services organisations and others in relation to the prevention, mitigation and suppression of fires in these circumstances. The Part also provides for the establishment of the Bush Fire Co-ordinating Committee, the principal responsibility of which is to plan for bush fire prevention and for co-ordinated bush fire fighting. The Bush Fire Co-ordinating Committee is required to constitute Bush Fire Management Committees for rural fire districts and may constitute them for other parts of the State. These committees are responsible for the preparation of bush fire management plans for the areas for which they are constituted. Division 1 Co-ordination of bush fire fighting by Commissioner 44 Commissioner's responsibility (1) The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner— (a) a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or (b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or (c) a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or (d) a bush fire is burning in a place that is not the responsibility of any fire fighting authority. (2) (Repealed) (3) The Commissioner is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner's functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware. 45 Power to give directions etc (1) The Commissioner may give such directions as the Commissioner considers necessary to fire control officers, deputy fire control officers, officers of rural fire brigades, local authorities, officers or members of Fire and Rescue NSW, members of the NSW Police Force and other persons in connection with the prevention, control or suppression of any bush fire in the area or locality in which the Commissioner has taken charge or is taking measures under this Division. (2) Without limiting the powers conferred on the Commissioner, the Commissioner may exercise, in any part of the State, any functions conferred by section 21 on an officer in charge of a rural fire brigade or group of rural fire brigades in respect of the rural fire district for which the brigade is formed. (3) Any person (other than a police officer) who fails to observe any direction given under this section by the Commissioner is guilty of an offence. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. (4) The provisions of this section have effect despite anything contained in this or any other Act to the contrary. (5) Nothing in this Division enables the Commissioner to commandeer equipment or resources (human or otherwise). 45A Delegation of functions under Division (1) The Commissioner may delegate the Commissioner's functions under this Division (other than this power of delegation) to any person including an officer or member of a rural fire brigade, a person employed in Fire and Rescue NSW, a person employed in the Department of Industry or a person employed in the Office of Environment and Heritage. (2) A delegate may subdelegate any function delegated to the delegate by the Commissioner, if authorised to do so by the Commissioner, by instrument in writing. (3) A delegate cannot subdelegate a function to a person if the Commissioner does not have the power to delegate that function to the person. (4) If the Commissioner delegates functions subject to conditions or limitations, any subdelegation by the delegate is taken to be subject to the same conditions and limitations, and any further conditions or limitations imposed by the delegate. Division 2 Bush Fire Co-ordinating Committee 46 Constitution of Bush Fire Co-ordinating Committee (1) There is constituted by this Act a corporation with the corporate name of the Bush Fire Co-ordinating Committee. (2) The Bush Fire Co-ordinating Committee is a statutory body representing the Crown. 47 Membership and procedure of Bush Fire Co-ordinating Committee (1) The Bush Fire Co-ordinating Committee is to consist of 20 members as follows— (a) the Commissioner, who is to be the Chairperson of the Committee, (b) a person employed in Fire and Rescue NSW nominated by the Commissioner of Fire and Rescue NSW, (c) 3 persons nominated by the Secretary of the Department of Planning, Industry and Environment— (i) 1 of whom is a person employed in the Energy, Climate Change and Sustainability Division of the Department, and (ii) 1 of whom is a person employed in the Catchment and Lands—NSW Crown Lands Division of the Department, and (iii) 1 of whom is a person employed in the National Parks and Wildlife Service, (d) (Repealed) (e) 2 persons appointed by the Minister on the recommendation of Local Government NSW, (f) a fire control officer appointed by the Minister on the recommendation of the NSW Rural Fire Service Association Inc, (g) a person appointed by the Minister on the recommendation of the Commissioner of Police, (h) a person appointed by the Minister on the recommendation of the Minister for Energy and Environment, (i) a person nominated by the Nature Conservation Council of New South Wales, (j) a person appointed by the Minister on the recommendation of the NSW Farmers' Association, (k) a person employed in Resilience NSW nominated by the Minister for Police and Emergency Services, (l) a person employed in the Forestry Corporation of New South Wales nominated by the chief executive officer of that Corporation, (m) a person appointed by the Minister on the recommendation of the New South Wales Aboriginal Land Council, (n) a person employed in Fire and Rescue NSW nominated by the Fire Brigade Employees Union, (o) a person nominated by NTSCorp Limited (ACN 098 971 209), (p) a person nominated by the Minister to promote the integrity of cultural burning, (q) a volunteer rural fire fighter nominated by the NSW Rural Fire Service Association Inc, (r) a fire fighter nominated by the Public Service Association. (2) Schedule 1 has effect with respect to the members and procedures of the Bush Fire Co-ordinating Committee. 48 Functions of Bush Fire Co-ordinating Committee (1) The Bush Fire Co-ordinating Committee— (a) is responsible for planning in relation to bush fire prevention and co-ordinated bush fire fighting, and (b) is responsible for advising the Commissioner on bush fire prevention, mitigation and co-ordinated bush fire suppression, and (c) has such other functions as are conferred or imposed on it by or under this or any other Act. (2) Without limiting subsection (1), the Bush Fire Co-ordinating Committee— (a) must report to the Minister on any matter referred by the Minister to it and may report on any matter relating to the prevention and suppression of bush fires whether referred to it or not, and (b) may enter into arrangements with a Minister or any public authority with respect to the reduction of bush fire hazards. (2A) The Bush Fire Co-ordinating Committee may request the Commissioner to conduct an audit under section 62A of bush fire management plans generally or for a specified rural fire district or other part of the State. (3) The Bush Fire Co-ordinating Committee 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. 49 Delegation The Bush Fire Co-ordinating Committee may delegate to the Commissioner any function (other than this power of delegation) conferred or imposed on it by or under this Act. Division 3 Bush Fire Management Committees 50 Bush Fire Management Committees (1) The Bush Fire Co-ordinating Committee must constitute a Bush Fire Management Committee for the whole of the area of any local authority for which a rural fire district is constituted. (1A) The Bush Fire Co-ordinating Committee must constitute a Bush Fire Management Committee for the area of a local authority for which a fire district is constituted if there is a reasonable risk of bush fires in that area. (2) The Bush Fire Co-ordinating Committee may constitute a Bush Fire Management Committee for a part of the State other than a rural fire district or a fire district. (3) Committees may be constituted for separate rural fire districts or groups of rural fire districts and for separate fire districts or groups of fire districts. (4) A Bush Fire Management Committee is to be constituted in accordance with the regulations. 51 Functions of Bush Fire Management Committees (1) A Bush Fire Management Committee has such functions as are conferred or imposed on it by or under this or any other Act. (1A) A Bush Fire Management Committee must, within 2 months after the end of each financial year, report to the Bush Fire Co-ordinating Committee on implementation of each bush fire risk management plan and fire access and fire trail plan in force for the rural fire district or other part of the State for which the Bush Fire Management Committee is constituted. (2) A Bush Fire Management Committee 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. Division 4 Preparation of draft bush fire management plans 52 Bush Fire Management Committees to prepare plans (1) Each Bush Fire Management Committee must, in accordance with this Division, prepare and submit to the Bush Fire Co-ordinating Committee a draft of each of the following kinds of bush fire management plans for the rural fire district or other part of the State for which it is constituted— (a) a plan of operations, and (b) a bush fire risk management plan. (2) Draft bush fire management plans of both kinds must be prepared and submitted to the Bush Fire Co-ordinating Committee by a Bush Fire Management Committee within 12 months after the constitution of the Bush Fire Management Committee and— (a) in the case of a plan of operations—within each successive 2 year period following the constitution of the Committee, and (b) in the case of a bush fire risk management plan—within each successive 5 year period following the constitution of the Committee. (3) Each Bush Fire Management Committee must, in accordance with this Division, prepare and submit to the Bush Fire Co-ordinating Committee a draft fire access and fire trail plan for the rural fire district or other part of the State for which it is constituted. (4) A draft fire access and fire trail plan must be prepared and submitted to the Bush Fire Co-ordinating Committee by a Bush Fire Management Committee— (a) within the period (the original period) notified to it by the Bush Fire Co-ordinating Committee, and (b) thereafter within each successive 5 year period following the end of the original period. 53 Content of draft plan of operations A draft plan of operations for a rural fire district or other part of the State is to set out the procedures to be followed if— (a) a bush fire breaks out in the rural fire district or other part of the State and assumes or is likely to assume such proportions as to be incapable of suppression by the fire fighting authority or authorities in that part of the State, or (b) the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions. 54 Content of draft bush fire risk management plan (1) A draft bush fire risk management plan for a rural fire district or other part of the State is to set out schemes for the reduction of bush fire hazards in the rural fire district or other part of the State. (2) Without limiting the matters that may be contained in a draft bush fire risk management plan, it may restrict or prohibit the use of fire or other particular fire hazard reduction activities in all or specified circumstances or places to which the plan applies. (3) The Bush Fire Management Committee must, when preparing a draft bush fire risk management plan for a rural fire district or other part of the State, consider the number and location of neighbourhood safer places in the rural fire district or other part of the State. (4) The Commissioner may direct a Bush Fire Management Committee to amend a draft bush fire risk management plan prepared and submitted by it. Note. A plan might, for example, prohibit the use of fire because of its effect on fauna or flora in, or the cultural heritage of, a particular place. 54A Content of draft fire access and fire trail plan (1) A draft fire access and fire trail plan is to provide schemes for appropriate means of accessing land to prevent, fight, manage or contain bush fires, and in particular may do so by identifying or providing for the identification of suitable existing or proposed fire trails. (2) A draft fire access and fire trail plan is to set out matters in conformity with the Fire Trail Standards. (3) The Commissioner may direct a Bush Fire Management Committee to amend a draft fire access and fire trail plan prepared and submitted by it. 55 General content (1) A draft bush fire management plan may— (a) include schemes for the exercise in the rural fire district or other part of the State to which it applies of functions conferred or imposed by this Act, and (b) confer or impose functions on the Commissioner, the Commissioner of Fire and Rescue NSW, the Forestry Corporation, the Chief Executive of the Office of Environment and Heritage or any other person or body associated with the prevention, mitigation or suppression of bush fires in that part of the State. (2) A draft bush fire management plan must include any provisions that the Bush Fire Co-ordinating Committee has advised the Bush Fire Management Committee concerned to include in the plan. 56 Failure of Management Committee The Commissioner may exercise the functions of a Bush Fire Management Committee under this Division if the Committee has failed to submit a draft bush fire management plan in accordance with the Division or has submitted a draft plan that, in the opinion of the Commissioner, is inadequate. Division 5 Public participation in preparation of plans 57 Public notice of draft bush fire risk management plans (1) The Bush Fire Management Committee or Commissioner must— (a) in accordance with the regulations, give public notice of and exhibit, for the purpose of receiving submissions from any interested persons, any draft bush fire risk management plan for a rural fire district or other part of the State prepared by the Committee or Commissioner, and (b) concurrently display for information any draft plan of operations or plan of operations for that rural fire district or part of the State. (2) The Bush Fire Management Committee or Commissioner is to ensure that no addresses or telephone numbers of fire control officers or other operational contact information is displayed. 58 Adoption of bush fire risk management plans (1) After considering all submissions received concerning the draft bush fire risk management plan, the Bush Fire Management Committee or the Commissioner (if the Commissioner is exercising the functions of the Committee under section 56) may decide to amend the draft plan or to submit it to the Bush Fire Co-ordinating Committee without amendment as the proposed bush fire risk management plan for the rural fire district or part of the State concerned. (2) When a draft bush fire risk management plan for a rural fire district or any other part of the State is submitted to the Bush Fire Co-ordinating Committee it must— (a) consider all submissions received by it concerning the draft plan, and (b) review the provisions of the draft plan and of any current bush fire risk management plan for that part of the State. (3) After considering the submissions and the review, the Bush Fire Co-ordinating Committee may— (a) approve the draft plan (as submitted or after amendment by the Bush Fire Co-ordinating Committee) and revoke any other bush fire risk management plan to the extent that it makes corresponding provisions for that part of the State, or (b) vary another bush fire risk management plan for some or all of the same part of the State so as to incorporate in the other plan some or all of the provisions of the draft plan (as submitted or after amendment by the Bush Fire Co-ordinating Committee). (4) If the Bush Fire Management Committee, the Commissioner (if the Commissioner is exercising the functions of the Committee under section 56) or the Bush Fire Co-ordinating Committee decides to amend the draft plan— (a) they may publicly exhibit the amended draft plan in accordance with this Division, or (b) if of the opinion that the amendments are not substantial, the Bush Fire Management Committee or Commissioner may submit, or the Bush Fire Co-ordinating Committee may adopt, the amended draft plan without public exhibition as the bush fire risk management plan for the area concerned. 59 Adoption of bush fire plans of operation (1) After preparing a draft plan of operations for the rural fire district or other part of the State for which it is constituted, the Bush Fire Management Committee is to submit the plan to the Bush Fire Co-ordinating Committee. (2) When a draft plan of operations is submitted to the Bush Fire Co-ordinating Committee, it must review the provisions of the draft plan and of any current plan of operations. (3) After the review, the Bush Fire Co-ordinating Committee may— (a) approve the draft plan (as submitted or after amendment by the Bush Fire Co-ordinating Committee) and revoke any other plan of operations to the extent that it makes corresponding provisions for that part of the State, or (b) vary another plan of operations for some or all of the same part of the State so as to incorporate in the other plan some or all of the provisions of the draft plan (as submitted or after amendment by the Bush Fire Co-ordinating Committee). 59A Adoption of fire access and fire trail plan (1) After preparing a draft fire access and fire trail plan for the rural fire district or other part of the State for which it is constituted, the Bush Fire Management Committee is to submit the plan to the Bush Fire Co-ordinating Committee. (2) When a draft fire access and fire trail plan is submitted to the Bush Fire Co-ordinating Committee, it must review the provisions of the draft plan and of any current fire access and fire trail plan. (3) After the review, the Bush Fire Co-ordinating Committee may— (a) approve the draft plan (as submitted or after amendment by the Bush Fire Co-ordinating Committee) and revoke any other fire access and fire trail plan to the extent that it makes corr