The Fire Brigades Act 1989 (NSW) s 31 says
(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 volunteer 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.
But what is a fire brigade? According to the definitions section of the Act,
“fire brigade” means a permanent fire brigade or a volunteer fire brigade, but does not include a rural fire brigade.
“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.
“volunteer fire brigade” means any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade.
If we applied those definitions, s 31 would say:
It is unlawful for any persons to constitute or maintain a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9 for the purpose of extinguishing fire within any fire district except:
(a) as a permanent fire brigade established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner or an association of persons for which an approval as a volunteer fire brigade is in force under section 9…
And that is silly. It would be impossible for a person to maintain a brigade that is established and maintained by the Commissioner and it can hardly be an offence to maintain a volunteer brigade where there is an approval in force. And in any event it is a defence to maintain a brigade that is established by the Commissioner etc. Taken literally s 31 says ‘it’s an offence maintain a fire brigade except where the fire brigade is a fire brigade’. Clearly ‘fire brigade’ in s 31(1) does not have the same meaning as ‘fire brigade’ in the definition section.
So what is a fire brigade under s 31 and why is it important? It’s important because of a growth in private emergency service providers. Companies and event organisers have both statutory and common law obligation to ensure that, after an appropriate risks assessment, they have in place emergency procedures and personnel to provide first aid, rescue and where appropriate fire fighting resources. If they want to engage a contractor to provide those services is the contractor breaking the law?
Section 31(1)(b) allows for companies to establish their own industrial brigade, so a company can employ people as fire fighters, but would that extend to contractors? If company A needs to maintain fire fighting capacity at its factory, and it engages company Z to provide those services, company Z would employ the necessary staff. The fire fighting staff are employees of Z, not A so when they ‘stand by’ at A’s factory, or mine, or public event, they are not on property owned or used by their employer. But are they a fire brigade? One might think that if company Z is providing a range of services, of which fire fighting is just one, that they are not, but fire brigades also, increasingly provide a range of services.
Some history may help. It is understood that fire brigades, historically, were provided by local governments, insurance companies and groups of concerned citizens banding together to form a brigade in their common interest; (see Murray, Robert and White, Kate (1995), State of Fire: a history of volunteer fire fighting and the Country Fire Authority of Victoria (Hargreen, Melbourne); Ellis, Julie-Anne (2001), Tried by fire: the story of the South Australian Country Fire Service (South Australian Country Fire Service, Adelaide); Ruoff, Theo (1966), ‘Links with London’ The Australian Law Journal, vol 40, pp 211-213; Myer Stores Ltd v State Fire Commission  TASSC 54,  (Blow J)). Original moves to bring brigades together was not to bring them into a central organisation but just to provide some uniform training and coordination so they could operate together, but they still remained individual and independent brigades. Victoria’s first fire brigade legislation, the Fire Brigades Act 1890 (Vic) was an Act to improve the administration of fire brigades. This Act empowered the local municipalities that had an interest in providing fire protection to do so if they wished (Victoria, Parliamentary Debates, Legislative Assembly, 18 June 1890, 381 (Mr Deakin)), it did not require them to do so. It is still the case that in some states, the bushfire brigades are operated by councils (Western Australia) or are independent legal entities (Queensland). Organisations such as the NSW Rural Fire Service are relatively new, the RFS being created in 1997 when the Rural Fires Act 1997 (NSW) replaced the Bush Fires Act 1949 (NSW)
Let us then look at the history of s 31. This section was amended in 1993 but only to add a reference to hazardous materials incidents. Otherwise the section, and importantly s 31(1) has been in place since the Act was first passed in 1989.
The first fire brigades Act in NSW was the Fire Brigades Act 1884 (NSW). This Act created the Fire Brigades Board, the Board was made up of one representative from the council of the City of Sydney and one from all the other Councils that would have a fire brigade, as well as two representatives from the insurance industry and one representative from the volunteer fire brigades then operating in NSW. It was the duty of the Board to:
… establish and maintain an efficient Brigade for the extinction and suppression of fires and protecting life and property from loss and damage thereby and to furnish such Brigade with such fire engines hoses tools implements accoutrements horses and appliances as may be necessary … (s 4).
Further the Board could:
… enrol and take over the present Insurance Companies Fire Brigade and all property thereto belonging and the Colonial Treasurer shall out of the Consolidated Revenue Fund pay such sums as may be required equal to the aggregate amount of the valuation of such property … (s 5)
All Volunteer Fire Brigades … shall be registered at the office fo the Board and shall be subject to inspection by the Superintendent and at all fires shall be subject to his orders … (s 10).
(As an example of qualification creep it is interesting to see that in 1884 the Chief Officer was the Superintendent of Fire Brigades. Today a superintendent sits somewhere below the Commissioner, Deputy Commissioner, Assistant Commissioner, Chief Superintendent etc).
What is evident is the new Board was to take over insurance brigades and bring the volunteer brigades under their direction and control. As with today, the Brigade was to be funded from contributions made by the insurance sector and local governments (s 13). There was no specific offence of maintaining a brigade contrary to the Act but the governor could make regulations to give effect to the Act including creating offences. The old regulations are not readily available so one can’t see if there was an offence in the regulation.
The 1884 Act was replace by the Fire Brigades Act 1902 (NSW). The Board, established under the 1884 Act continued as the Board under the 1902 Act (s 2(4)). The Board had similar functions as it did under the 1884 Act but now it was also to fund the Brigade to obtain fire alarms and telephones (s 11). There is no mention of insurance company brigades, presumably there were none, but again volunteer brigades had to be ‘registered at the office of the Board’ (s 29) and:
All volunteer fire brigades established within the Metropolitan District [were] subject to inspection by the Superintendent, and shall at all fires be subject to his orders. (s 19)
This Act did not have a long life and was repealed and replace by the Fire Brigades Act 1909 (NSW). The 1909 Act created the Board of Fire Commissioners to replace the Fire Brigades Board. The new Board was to
… establish and maintain permanent fire brigades, and authorise the constitution of volunteer fire brigades, and [could] suspend or cancel any such authorisation. (s 20(a)).
The Chief Officer could
… inspect volunteer fire brigades and their premises and equipment, and enforce compliance with the by-laws made in respect of the same. (s 30(a)).
In this Act we see the forerunner of today’s s 31. Section 41 of the 1909 Act said:
It shall not be lawful for any persons to constitute or maintain a salvage corps or a fire brigade for the purpose of salvage of property at fires or of extinguishing fire within any municipality or shire, or any part thereof, to which this Act applies, outside premises or land owned or used by such persons or at or on which such persons are employed, unless such corps or brigade is constituted by the board or is authorised by the board to act as a salvage corps or fire brigade. Any person who acts in contravention of this section shall be liable to a penalty not exceeding twenty pounds.
The definition of ‘fire brigade’, ‘permanent fire brigade’ and ‘volunteer fire brigade’ were similar to those found today. The 1909 Act was replaced by the current Act of 1989.
It appears that today’s s 31 is largely a ‘cut and paste’ of the 1909 s 41, save that the modern Act does not refer to a salvage corps. What we can infer is that these prohibitions are aimed at stopping private brigades that provide the type of services that are offered today by Fire and Rescue NSW. We don’t want to return to municipal or insurance brigades providing an emergency fire fighting service and an undignified rush by various brigades to fires and perhaps competition or argument as to who is in charge.
Does that extend to private emergency service providers? On one view it would, a private company that sets itself up as a fire and emergency service and agrees to respond to their client, in return for a fee, would be exactly the sort of operation that I think the Act is aimed at. On the other hand, a contractor who attends a particular work site, whether its providing standing emergency services at a factory or mine, or an ad hoc service provider who’s attending a community or sporting event just for the few days in which its operating, seems very different. The emergency service provider in that case is providing the sort of service that a person conducting a business or undertaking (a PCBU) is required to provide under modern work health and safety law (see Work Health and Safety Act 2011 (NSW) and in particular Work Health and Safety Regulation (2011) regs 42 and 43).
We all have an image of what is a fire brigade, a crew of 4 in a fully equipped appliance that is standing by for the emergency call. A contractor’s response team may look like that, or may look very different but they are still there to respond to fires and other emergencies. It should be noted however, that there is no need for legal authority to fight a fire; anyone can fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810).
So I infer that a contractor who’s providing emergency services for a single client and who’s willing to accept the authority of Fire and Rescue NSW if and when they respond, is not operating a fire brigade. A contractor who establishes an offsite ‘station’ and who has a multiple client base and agrees to provide emergency services that would involve travelling from their station to their various clients in response to an emergency call, would be conducting a fire brigade and would certainly be doing so if they had some agreement or expectation, or promised their clients that they, and not Fire and Rescue NSW would take charge of operations at any particular fire.