In my last post “NSW bushfires spark a range of new laws” I reported on an article that said new provisions would be introduced to the Rural Fires Act. The relevant Bill, the Rural Fires Amendment Bill 2013 (NSW) is now available online.
Significantly the Bill will, when passed:
1. Add another function on the rural fire service – the service is now charged with “the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,”
2. Allow the rural fire service may to “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” in order to make premises safe. The cost of these actions is to be borne by the property owner.
3. The Rural Fire Service already has the power to take water for the purposes of fighting a fire. With the amendments, “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.” It’s hard to know why that section is required, if the taking of water requires ‘arrangement with the owner or occupier’ then it’s really saying the Commissioner can take water if the owner, occupier or person in control of the water gives permission. It’s not clear why specific authority is required to take that which the owner allows the Commissioner to take.
4. It is currently an offence to obstruct or hinder “the Commissioner, a fire control officer or an officer of a rural fire brigade or group of rural fire brigades… or any other person acting under the direction of any such person”. With the passage of this bill it will also be an offence to obstruct or hinder a volunteer rural fire fighter.
5. The Commissioner will be allowed to carry out hazard reduction work on land:
if the Commissioner serves a notice addressed (by the description of “Owner” or “Occupier”) to the owner or occupier of the land specifying:
(i) the circumstances in which, conditions under which and manner and time within which the bush fire hazard reduction work is to be carried out, and
(ii) any means by which the bush fire hazard reduction work is to be carried out and alternative means other than fire by which the work should, if practicable, be carried out,
and after reasonable inquiry conducted over a period of not less than 7 days, the Commissioner cannot ascertain the identity and location of the owner or occupier.
If you look at the comments made after my original posting you will see the discussion there about methods of service. Section 130 of the Act says: “Except as otherwise expressly provided by this Act, a notice or direction required by or under this Act to be served on a person may be served as provided by the regulations.” The regulations provide for methods of service (regulation 38) which include delivery in person, leaving the notice at the premises with any person apparently over the age of 14; post by prepaid letter to the last known address; “by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person” and in some cases “by advertisement in the approved form published in a newspaper circulating in the district in which the land, building or premises are situated”. If the Commissioner uses one of these methods to bring the notice to the attention of the owner or occupier he may then undertake the hazard reduction work. It should be noted however that the right to do the work does not arise after the time set out in the notice, the Commissioner would have to demonstrate (should anyone object) that he conducted reasonable inquiries “over a period of not less than 7 days” to “ascertain the identity and location of the owner or occupier”.
6. It will be an offence to “discard a lighted tobacco product or match or any incandescent material on any land.” The maximum penalty during a total fire ban will be $11000 and at other times, $5500.
7. The State Emergency and Rescue Management Act 1989 (NSW) will be amended to create a new offence. The new s63B(2A) will say:
A person who:
(a) impersonates an emergency services organisation officer with the intention to deceive and purports to exercise a function of such an officer, or
(b) impersonates an emergency services organisation officer with the intention to deceive in order to facilitate the commission of an offence, is guilty of an offence.
The maximum penalty will be a fine of $11,000.
There is already an offence to impersonate an emergency services organisation officer (s 63B(2)) punishable by a maximum fine of $5500. The difference between the existing offence and the new, aggravated, offence is the requirement that the Crown would have to prove that the accused intended to deceive and purported to ‘exercise a function of such an officer’ or intended to use the deception to commit an offence. So, for example, a person who was attempting to impersonate an emergency services officer to get into a restricted area for a better view of the New Years Eve Fireworks or to get a 50% discount at McDonalds would commit the current offence. To commit the new one, they would have to attempt to exercise the powers of an emergency services officer or use their apparent authority to commit an offence.
It’s interesting that this offence will carry a maximum penalty of $11000. Compare this to the offence under the Crimes Act 1900 (NSW) s 93Q. That section says:
(1) A person who conveys information:
(a) that the person knows to be false or misleading, and
(b) that is likely to make the person to whom the information is conveyed fear for the safety of a person or of property, or both,
is guilty of an offence.
The maximum penalty for this offence is imprisonment for 5 years.
This offence has been applied following allegations that two people “were misleading local residents and asking them to evacuate their homes, due to fires burning in the area” (see NSW Police Media “Two people charged after misleading public during bushfires – Bowen Mountain”, 24 October 2013). There’s no suggestion that these alleged offenders were impersonating an emergency services officer nor do the police speculate on their motive for their actions.
The offences under the State Emergency and Rescue Management Act 1989 (NSW) s 63B and the Crimes Act 1900 (NSW) s 93Q are not mutually exclusive. If the accused discussed in the above case were wearing an emergency services uniform they could be guilty of both offences.