It seems all my questions these days are coming from the NSW RFS.   I’m happy to field questions from other services and other states?  Until then this one is from the RFS and asks ‘How autonomous are NSW Rural Fire Brigades?’

This question has been troubling me since taking up appointment of President of my local RFB.  I can recall reading a past post in which you explained that the extent of control that the NSW Fire Commissioner could exercise over decisions taken by a local volunteer RFB about its constitution would depend on whether the RFB was formed by its Local Government Council or by the NSW RFS Commissioner.

Our Brigade, like many in its situation, was home-grown back in the 50’s.  Over the years it came under the umbrella of the NSW RFS and is grateful to be supplied by and have the active and daily support of the NSW RFS in its operational responsibilities.  It happily sees itself today as a volunteer organisation under the direct support and indirect control (but only in operational matters) of the NSW Rural Fire Commissioner.

The Brigade has no written Rules or Constitution (at least none ever made by it that I have been able to discover).  It will apparently soon have a template constitution to be mandated and imposed by the NSW RFS, but with a limited right for the Brigade to make local rules, provided they don’t contravene or conflict with the standard constitution.  None of this is yet of concern to the Brigade, but we wonder why we will soon have a constitution (not of our making) that will impose an umbrella control over how we will operate as an unincorporated volunteer emergency organisation into the future, but with a restricted capacity in a restricted time-frame to make rules (another word for constitution) provided they fit within this State-Government mandated constitution umbrella.  So, the question – How autonomous are NSW (volunteer) Rural Fire Brigades that have evolved as my local Brigade has?

I have said recently to others our brigade has the appearance of a QANGO (Quasi Autonomous Not Government Instrumentality) but is in reality today an indirect agency of the NSW Crown (NSW Executive Government) under the direction and control of the NSW Rural Fire Commissioner.  Am I correct in making this general assumption?  After all, in taking-up the offer by NSW RFS some years past to equip our Brigade with two new Cat 7’s in replacement for our old Cat 1 and to maintain the current fire-fighting vehicles at no cost to our volunteer members, how could we pretend otherwise!  That must be our operational status.  But how much freedom is left to us in all other matters, including for example the property on which we would base our operations and garage our fire-fighting vehicles and other equipment (not all of it supplied by NSW RFS)?

It would be helpful if our Brigade’s current legal status as an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act could be clarified by a more constructive legal analysis than by my current off-the-cuff remarks.

The earlier post that this correspondent referred to is ‘Constitutions for NSW RFS brigades’ (May 21, 2014).   In that post I said:

The issue of constitutions for NSW RFS brigades is dealt with in the Rural Fires Regulation 2013 (NSW) reg 4.  That regulation says ‘The constitution for a rural fire brigade is to be in a form approved by the responsible authority and is to make provision for’ amongst other things, ‘the voting rights of members of the brigade’.  Who or what is the responsible authority varies, if the brigade was formed by a local authority (under the Rural Fires Act 1997 (NSW) s 15) then the local authority is the responsible authority.  If the brigade was formed by two or more local authorities (Rural Fires Act 1997 (NSW) s 15(2)) then the responsible authority is the authority nominated in writing by the local authorities that formed the brigade.  If the brigade is formed by the Commissioner (Rural Fires Act 1997 (NSW) s 15(4)) then the responsible authority is the Commissioner (Rural Fires Regulation 2013 (NSW) reg 3, definition of ‘responsible authority’).

The Act refers to brigades formed by local authorities but, in reality, there are no such brigades.  RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:

Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).

The model where brigades were formed and then joined the state organisation no longer applies in NSW but it does still apply in Queensland where ‘Any group of persons may apply to the commissioner for registration as a rural fire brigade’ (Fire and Emergency Services Act 1990 (Qld) s 79).  In Western Australia bushfire brigades are still the responsibility of local government (Bush Fires Act 1954 (WA) s 41).

Today the Rural Fire Service is a public service agency within the NSW Government’s Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1).    As explained in the 2012 Discussion Paper – Review of Local Government Engagement with the RFS, p 4:

Under the Rural Fires Act (NSW) 1997 and the Rural Fires Regulation (NSW) 1997, the RFS was formed as a single state level/managed agency.

The Rural Fire Service consists of the Commissioner, staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8).  It is not the case that firefighters are a member of the brigade and the brigade is somehow a member of the RFS.  The volunteers are members of the RFS and the RFS operates the brigades.   A brigade is not an ‘unincorporated volunteer emergency organisation’ (and can I suggest it wouldn’t want to be) but is part of the very much incorporated RFS.    The problem with being an unincorporated association is that any liabilities would belong to the officer holders of that association.  Incorporation creates a fictitious legal person that can sue and be sued in its own right.    As part of the RFS a brigade can’t be sued but the State of New South Wales can be (Crown Proceedings Act (NSW) s 5).

As my correspondent has noted, a brigade constitution must comply with the terms set out by the ‘responsible authority’ which as noted, is for all practical purposes, the Commissioner (Rural Fires Regulation 2013 (NSW) reg 4).   Even if brigades were still part of local government they would have to comply with services standards (Rural Fires Act 1997 (NSW) s 13 and (Rural Fires Regulation 2013 (NSW) reg 9).    The Commissioner has set out the relevant ‘template’ constitution in RFS Service Standard 2.1.2 Brigade Constitution.

Conclusion

An RFS brigade is not a QANGO.  It is not an ‘an indirect agency of the NSW Crown’.  The RFS is an agency of the Crown and the brigade is part of the RFS.  The brigade has no legal standing in its own right.   The amount of freedom left to a brigade is determined by the Commissioner and is reflected by the standard constitution set out in the service standard.   There are clauses that the brigades may draft to suit their own requirements and conditions.

It is my view that the status of a brigade is not that of ‘an unincorporated association of emergency volunteers forming a Brigade under the NSW Rural Fires Act’ rather it is a brigade formed by and as part of the Rural Fire Service.  The RFS is not some separate agency that coordinates or manages disparate brigades, there is but one service and each brigade is part of it.