This question comes from a volunteer with NSW RFS:
I was deployed to SA riverland fires recently, as the captain of a brigade, one of the crew asked if our authority issued under sections 29 and 31 of the Rural Fires Act 1997 are valid when interstate. Our RFS issued authority card says we are authorised to:
• Enter premises without notice in circumstances specified in service standard 1.3.2;
• Use reasonable force to enter any premises in the circumstances as specified in service standard 1.3.2; and
• While on premises exercise the power conferred upon the bearer by sections 22 to 31 of the Rural fires Act and service standard 1.3.2
Thank you for opportunity to clarify this.
Section 23 of the Rural Fires Act says “An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act”. Sections 29 and 31 detail the process to be followed when exercising that power. Section 29 provides details of when notice must be given, or need not be given; section 31 allows, in prescribed circumstances, the use of ‘reasonable force’ to gain access to premises.
Do any of these authorities apply when fighting a fire in South Australia? The answer is ‘no; the NSW Act cannot give authority to enter premises in South Australia’ (well it can, a bit, but I’ll get back to that).
To keep the analysis simple, I’m going to assume that the Country Fire Service was the control agency (Emergency Management Act 2004 (SA) s 20) and that the fires were not a declared major incident, major emergency or disaster (ss 22-24; not that I think that would make any difference to the answer).
The answer to this question is found in the Fire and Emergency Services Act 2005 (SA) s 146. That section says, in full:
(1) A member of a recognised interstate organisation who is present at the scene of a fire or other emergency in this State may, if there is no officer of an emergency services organisation in control of operations to deal with the fire or other emergency, exercise any power vested in an officer of an emergency services organisation under this Act.
(2) In this section—
“recognised interstate organisation” means an organisation formed outside this State and declared by the Commission or a Chief Officer of an emergency services organisation, by notice published in the Gazette, to be a recognised interstate organisation.
The New South Wales Rural Fire Service is a ‘recognised interstate organisation’ (SA Government Gazette 17 January 2008, p 246). So an RFS crew, operating in South Australia without a member of the SA emergency services present, has the powers of a South Australian fire fighter. Those powers are set out in the Fire and Emergency Services Act 2005 (SA) s 97.
So what did I mean when I said ‘well it can, a bit’? The NSW Act still governs your operations to this extent. First you have to be a member of the RFS and so it’s the RFS Act and regulations etc that all determine that you are a member and what you can do; that is as a member of the RFS, even though your operating in South Australia, you’re still bound by the code of conduct and ethics and the other Service Standards. Further your membership will be limited by its limits in NSW, so for example, assume that the RFS does not allow you to use a chain saw unless you have completed the necessary training and you have not completed that training; just because s 97(2)(b) says you can ‘remove or destroy … any … vegetation’ that would not allow you to use a chain saw in SA when you are not trained in its use.
That doesn’t apply to s 29 of the NSW Act. Section 29 starts by saying ‘A person authorised to enter premises under this Division may enter the premises without giving notice…’ When operating in SA you are not ‘authorised to enter premises under this Division’, rather you are authorised by virtue of the Fire and Emergency Services Act 2005 (SA) ss 97 and 146. In that case s 29 doesn’t apply, rather s 97(6) of the South Australian Act applies; it says “A member of SACFS must, before taking any prescribed action with respect to private land … (a) consult with the owner or person in charge of the land or reserve if that person is in the presence of, or may be immediately contacted by, the member of SACFS…’
It is not so clear with respect to s 31. That sections says
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.
That could be applied in South Australia. There is the power to enter land (s 97(2)(1) and that is a power to use force. Is the requirement that the NSW Commissioner authorise his or her staff before they use force akin to saying they must be trained before they exercise a task? It is not inconsistent ie it is possible to comply with both provisions – an RFS member may use force (Fire and Emergency Services Act 2005 (SA) s 97(2)) but only if authorized by the RFS Commissioner (Rural Fires Act 1997 (NSW) s 31). Without being able to point to any linguistic necessity, or case law on the point, I would suggest that is not the interpretation that would or should apply. The NSW Commissioner is not in control of any aspect of the SA operations (though he remains, ultimately, ‘in command’ of the RFS members). The members of the RFS are not exercising any powers under the RFS Act, rather they are exercising powers under the South Australian Act.
Further, remember that s 146 only applies in the absence of a SA emergency services officer. That may be the case if, say, a brigade from Broken Hill has crossed the SA border but that is really unlikely. Where the RFS is proceeding to assist the CFS then they are acting under the command of the CFS officers, ultimately the incident controller. If there is a South Australian officer present, or the RFS are acting under their direction, then it is the SA officer who is exercising the power, so if for example, the incident controller directs the RFS brigade to break into land in order to fight the fire, then the relevant question is what authority did the IC have, and that authority is undoubted. Where a South Australian officer has power to enter the land, so does anyone ‘acting under the command of [the] officer’.
So, in short:
1. The power to enter premises, or do other things, lies in the legislation in the state in which you are operating, in this case the Fire and Emergency Services Act 2005 (SA) s 97.
2. Where the RFS are operating alone, that is in the absence of a South Australian emergency services officer, they can exercise those powers, not the powers contained in the RFS Act (Fire and Emergency Services Act 2005 (SA) s 146).
3. Where the RFS are operating with or under the command of a South Australian officer, the issue does not arise as it is the SA officer who will authorise entry or otherwise ‘exercise’ s 97 powers. Where there is a power the person who holds the power doesn’t have to personally attend to it (the IC has the power to direct the movement of persons (s 97(2)(f)) but that doesn’t mean he or she has to stand at every street corner, he can direct others, including the members of the RFS to do that task).
I hope that helps.