A correspondent from the RFS writes:
I’m hoping you might be able to offer some input into what RFS Service Standard 1.3.2 Powers of Officers (http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0020/8804/1.3.2-Powers-of-Officers.pdf) actually means in sections 2.16.
What I’m currently wondering is that given sections 2.09 to 2.17 inclusive appear under the the general heading of ‘Entry of Premises’, what are we to make of section 2.16 with respect to other than entry to premises, for example closing a road, taking water from a private supply etc. Section 2.16 says:
An officer may direct a member of the NSW RFS to;
(a) exercise any function conferred on a brigade or group Officer by or under this Act, or
(b) take any action that is reasonably necessary or incidental to the effective exercise of such a function, for the purpose of protecting persons, property or environment from an existing or imminent danger arising out of a fire, incident or other emergency notwithstanding the fact that the officer is not physically present at the place where the function is to be exercised.
The ‘any function’, ‘any action’ directive appears to be much broader than ‘entry to premises’ and indeed would need to be in order for the directive to be effective in many cases.
Is it a case of a poor written and formatted Service Standard, ie are section 2.16 (and the associated 2.17) actually separate to sections 2.09 to 2.15 which more clearly relate to premises. Is it a case of the Service Standard meaning what it says (I’m not sure what that is), or meaning what it’s supposed to mean, what ever that meaning is supposed to be?
It’s true, the Service Standard appears to be poorly drafted. The Standard is trying to give effect to the law so let’s start there. The power of the RFS to enter premises is set out in the Rural Fires Act 1997 (NSW) s 23 which 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’. A member is an ‘officer’ if they hold a position that is designated as an ‘officer’ position by the Commissioner (s 4 and Dictionary, definition of ‘officer’).
Section 23 is misleading in its simplicity as it has to read in conjunction with:
- Section 27 – the permission of RailCorp, RIC or TIDC required when exercising powers on their property;
- Section 29 – notice must be given except in listed circumstances when seeking to enter premises;
- Section 30 – the person entering the premises must do as little damage as possible;
- Section 31 – force may only be used to enter premises if the Commissioner has authorised, in writing, the use of force either in this case or in particular circumstances and those circumstances apply; and
- Section 32 – the person intending to use force must be in possession of a written authority issued by the Commissioner (so it’s not any officer, but only those authorised by the Commissioner).
The service standard is really just reproducing the Act as follows:
|Service Standard paragraph||Is restating these sections of the Act|
|2.9||ss 23 and 29.|
|2.10||s 29 (where the Commissioner has in the Standard, set out in writing where entry may be made without notice).|
|2.11 and 2.12||s 31 (where the Commissioner has set out circumstances where force may be used).|
|2.13||s 31(2) (notice of the use of force must be given to the Commissioner)|
As my correspondent says, paragraphs 2.16 and 2.17 do not appear to be related to entry into premises, and it’s true, they are not. The officer can determine to enter premises, or remove obstacles (s 22A), close a road (s 24), make premises safe (s 25) etc but it cannot be intended that he or she must do those things personally. Section 22(2) that says ‘The officer may exercise such a function or take such an action with such persons as the officer considers necessary for the purpose.’ The officer determines what action to take and the fire fighters who give effect to that decision are, form part of the tools at his or her disposable to make that happen.
The Act does not say that what service standard 2.16 says but the Act does say the Commissioner can write relevant service standards (s 13) so if there is an ambiguity in the Act about whether the officer has to be personally present, it is resolved by the Service Standard.
None of that resolves the ambiguity that my correspondent has noted; that is paragraphs 2.16 and 2.17 are under the heading ‘Entry of Premises’ so do they only apply to a decision to enter premises or do they apply to the exercise of all the functions and powers that are the subject of the standard?
How could the issue arise? An officer directs a member to take water (s 26) and is not there at the time. The owner of the water later alleges that the action was not duly authorised. A court somehow has to deal with the matter. I think a court could resolve the issue without reference to the service standard. Secton 26 allows the taking of water and there is nothing that says the officer must be there at the time. The common sense answer has to be that the officer can’t be everywhere that is why there are brigades. Provided the officer had made the decision to take the water the fact that he or she authorised a brigade to do so would seem consistent with s 26. A court would take comfort from the service standard that the Commissioner intended that 2.16 and 2.17 applied generally.
So my conclusion is that it is ‘a case of a poor written and formatted Service Standard’. It would be better if 2.16 and 2.17 appeared in the more general provisions (say as paragraphs 2.9 and 2.10 and then start the section on Entry to Premises as 2.11) but if it came to a legal challenge, I don’t think a court would have any trouble finding that the paragraphs were not restricted to entry to premises but must apply generally.