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Rural Fires Amendment Bill 2009 No , 2009 A Bill for An Act to amend the Rural Fires Act 1997 to make further provision in relation to the management of bush fire hazard reduction work, the investigation of rural fires and the functions of the NSW Rural Fire Service; to increase the penalty notice amounts for certain fire-related offences; and for other purposes.
Clause 1 Rural Fires Amendment Bill 2009 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Rural Fires Amendment Act 2009. 3 2 Commencement 4 This Act commences on a day or days to be appointed by proclamation. 5 Page 2
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 Schedule 1 Amendment of Rural Fires Act 1997 1 No 65 2 [1] Section 14 Delegation by Commissioner 3 Insert before section 14 (2) (a): 4 (a1) section 70 (Bush fire hazard reduction work in default of 5 compliance with notice), 6 [2] Section 22A 7 Insert after section 22: 8 22A Power to remove persons or obstacles 9 An officer of a rural fire brigade or group of rural fire brigades 10 may cause to be removed any person, vehicle, vessel or thing the 11 presence of whom or which at or near a fire, incident or other 12 emergency might, in the officer's opinion, interfere with the work 13 of any rural fire brigade or the exercise of any of the officer's 14 functions. 15 [3] Part 2, Division 3A 16 Insert after Division 3: 17 Division 3A Power to enter land to investigate fires 18 33A Object of Division 19 The object of this Division is to assist in the prevention of fires 20 by expressly authorising entry onto land to investigate the cause 21 or origin of a fire. 22 33B Power to enter land up to 24 hours after fire 23 (1) The Commissioner may enter and inspect any land for the 24 purposes of investigating the cause or origin of any fire that has 25 occurred on that land or any adjacent land, but only for a period 26 of up to 24 hours after the fire has been put out. 27 (2) The power conferred on the Commissioner under subsection (1) 28 may be exercised with or without the consent of the owner or 29 occupier of the land concerned. 30 (3) This section does not authorise the Commissioner to enter any 31 part of land used only for residential purposes without the 32 authority of a search warrant under section 33C or the consent of 33 the owner or occupier of the land concerned. 34 Page 3
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 (4) In this section and in section 33C, land includes any building on 1 the land. 2 33C Search warrants 3 (1) The Commissioner may apply to an authorised officer for a 4 search warrant for any land if the Commissioner reasonably 5 believes that entry onto the land is necessary for the purposes of 6 the investigation of the cause or origin of any fire that has 7 occurred on that land or any adjacent land. 8 (2) An authorised officer to whom an application is made may, if 9 satisfied that there are reasonable grounds for doing so, issue a 10 search warrant authorising the Commissioner or any other person 11 named in the warrant to enter land for the purposes of the 12 investigation of the cause or origin of any fire that has occurred 13 on that land or any adjacent land. 14 (3) Division 4 of Part 5 of the Law Enforcement (Powers and 15 Responsibilities) Act 2002 applies to a search warrant issued 16 under this section. 17 (4) In this section: 18 authorised officer has the same meaning as in the Law 19 Enforcement (Powers and Responsibilities) Act 2002. 20 33D Functions of Commissioner that may be exercised by others 21 (1) Any function conferred or imposed on the Commissioner under 22 section 33B or 33C may be exercised by the Commissioner of 23 NSW Fire Brigades, but only to the extent that the function is 24 exercisable in respect of land within a fire district. 25 (2) Without limiting section 14 (1), the Commissioner may delegate 26 any function conferred or imposed on the Commissioner under 27 section 33B or 33C to a fire fighting authority or a member of 28 staff of a fire fighting authority. 29 (3) Subsection (1) does not limit any of the functions of the 30 Commissioner of NSW Fire Brigades under the Fire Brigades 31 Act 1989. 32 [4] Section 44 Commissioner's responsibility 33 Omit "officers of the Forestry Commission, officers of the National Parks and 34 Wildlife Service" from section 44 (2). 35 Insert instead "a member of staff of the Department of Industry and 36 Investment, a member of staff of the Department of Environment, Climate 37 Change and Water". 38 Page 4
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 [5] Section 47 Membership and procedure of Bush Fire Co-ordinating 1 Committee 2 Omit section 47 (1). Insert instead: 3 (1) The Bush Fire Co-ordinating Committee is to consist of 4 13 members as follows: 5 (a) the Commissioner, who is to be the Chairperson of the 6 Committee, 7 (b) a member of staff of New South Wales Fire Brigades 8 nominated by the Commissioner of NSW Fire Brigades, 9 (c) a member of staff of the Department of Industry and 10 Investment nominated by the Director-General of that 11 Department, 12 (d) a member of staff of the Department of Environment, 13 Climate Change and Water nominated by the 14 Director-General of that Department, 15 (e) a person appointed by the Minister on the recommendation 16 of the Local Government Association of New South 17 Wales, 18 (f) a person appointed by the Minister on the recommendation 19 of the Shires Association of New South Wales, 20 (g) a fire control officer appointed by the Minister on the 21 recommendation of the NSW Rural Fire Service 22 Association Inc, 23 (h) a person appointed by the Minister on the recommendation 24 of the Commissioner of Police, 25 (i) a person appointed by the Minister on the recommendation 26 of the Minister for Climate Change and the Environment, 27 (j) a person nominated by the Nature Conservation Council of 28 New South Wales, 29 (k) a person appointed by the Minister on the recommendation 30 of the NSW Farmers' Association, 31 (l) a member of staff of the Department of Human Services 32 nominated by the Minister for Community Services, 33 (m) a member of staff of the Land and Property Management 34 Authority nominated by the Chief Executive of the 35 Authority. 36 Page 5
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 [6] Section 48 Functions of Bush Fire Co-ordinating Committee 1 Omit "Minister for Land and Water Conservation" from section 48 (2) (b). 2 Insert instead "Minister for Climate Change and the Environment". 3 [7] Section 55 General content 4 Omit "National Parks and Wildlife" from section 55 (1) (b). 5 Insert instead "the Department of Environment, Climate Change and Water". 6 [8] Section 64 Occupiers to extinguish fires or notify fire fighting authorities 7 Omit section 64 (2) (b). Insert instead: 8 (b) if the fire is burning outside any such fire district--the 9 nearest available: 10 (i) officer or member of a rural fire brigade, or 11 (ii) fire control officer or deputy fire control officer, or 12 (iii) member of staff of the Department of Industry and 13 Investment, or 14 (iv) member of staff of the Department of Environment, 15 Climate Change and Water. 16 [9] Sections 65A and 6570 17 Omit sections 6570. Insert instead: 18 65A Hazard management officers 19 The Commissioner may nominate a member of the Service as a 20 hazard management officer for the purposes of this Division. 21 65 Reduction of fire hazards on unoccupied Crown land and 22 managed land 23 (1) In this section: 24 authorised person, in relation to land, means: 25 (a) a hazard management officer, or 26 (b) any officer of a rural fire brigade for the time being 27 nominated for the purposes of this section by the 28 Commissioner, or 29 (c) any person for the time being nominated for the purposes 30 of this section by the Bush Fire Co-ordinating Committee, 31 or 32 Page 6
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 (d) a person exercising functions under a bush fire risk 1 management plan, or 2 (e) an authorised officer of a fire fighting authority. 3 (2) An authorised person may, with the permission of the fire 4 fighting authority or other authority responsible for unoccupied 5 Crown land or managed land or a person nominated by the 6 authority to give such permission, enter the land and carry out 7 bush fire hazard reduction work with the assistance of such other 8 persons as the authorised person considers to be necessary for the 9 purpose. 10 (3) The authority responsible for unoccupied Crown land or 11 managed land is to be taken to have given the permission under 12 this section to the extent necessary to give effect to a bush fire 13 risk management plan. 14 (4) If permission under this section is given subject to conditions, the 15 conditions must be complied with. 16 66 Bush fire hazard reduction notices 17 (1) A hazard management officer may, by notice in writing, require 18 the owner or occupier (not being a public authority) of any land 19 to carry out bush fire hazard reduction work specified in the 20 notice on the land. 21 (2) A hazard management officer must serve a notice under this 22 section if required to do so by a bush fire risk management plan 23 applicable to the land that is in force. 24 (3) A hazard management officer must issue a bush fire hazard 25 reduction certificate in respect of any bush fire hazard reduction 26 work required by a notice issued in accordance with 27 subsection (2). 28 (4) A notice under this section may specify: 29 (a) the circumstances in which, conditions under which, 30 places at which and manner and time within which the 31 bush fire hazard reduction work is to be carried out, and 32 (b) any means by which the bush fire hazard reduction work is 33 to be carried out and alternative means other than fire by 34 which the work should, if practicable, be carried out. 35 (5) The time within which bush fire hazard reduction work is to be 36 carried out must not be less than 7 days after the notice is given. 37 (6) The requirements and conditions so specified must include any 38 requirements specified in a bush fire risk management plan that 39 Page 7
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 is applicable to the land and is in force and may include a 1 requirement or condition that the burning of fire breaks or of 2 combustible matter or other material: 3 (a) must, in a fire district constituted under the Fire Brigades 4 Act 1989, be carried out by or under the supervision of the 5 fire brigade in the district or the officer or fire fighter in 6 charge of the fire brigade, or 7 (b) must, outside a fire district, be carried out by or under the 8 supervision of the rural fire brigade specified in the notice 9 or an appropriate officer of the rural fire brigade or any 10 hazard management officer. 11 (7) A notice requiring the establishment of a fire break cannot 12 require an occupier or owner to kill or remove any trees that are 13 reasonably necessary: 14 (a) for shade, shelter, windbreak or fodder purposes, or 15 (b) for the protection of threatened species, populations, 16 ecological communities or critical habitats within the 17 meaning of the Threatened Species Conservation 18 Act 1995. 19 Note. See section 54 (2) for other possible limitations. 20 (8) An occupier or owner to whom a bush fire hazard reduction 21 notice is given must, despite the fact that a fire permit has not 22 been granted under Division 5, comply with the requirements 23 specified in the notice. 24 Maximum penalty: 50 penalty units or imprisonment for 25 12 months. 26 (9) A notice under this section that is the subject of an objection or 27 appeal under section 67 or 68 does not have effect until the 28 objection or appeal is finally determined. 29 67 Objection to notices 30 (1) The owner or occupier of land on whom a notice has been served 31 under section 66 may, within 7 days of the service of the notice, 32 lodge an objection with the hazard management officer who 33 served the notice stating the grounds of objection, or, if that 34 officer is not available, any other hazard management officer. 35 (2) If a person lodges an objection, the hazard management officer 36 and the person must genuinely attempt to resolve the matter by 37 consultation having regard to: 38 (a) the provisions of any bush fire risk management plan 39 applicable to the land that is in force, and 40 Page 8
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 (b) the matters referred to in section 66 (7), and 1 (c) the proper needs for conservation, and 2 (d) such other matters as may be prescribed by the regulations. 3 (3) Within 14 days of the lodging of an objection, the hazard 4 management officer must: 5 (a) confirm the notice, or 6 (b) vary the notice, if the hazard management officer is 7 satisfied that the variation will appropriately address the 8 threat of fire, or 9 (c) withdraw the notice, if the hazard management officer is 10 satisfied that there is no longer any need for the notice to 11 be served. 12 (4) If the hazard management officer confirms or varies the notice, 13 the officer must give the person who lodged the objection notice 14 of the decision and must specify a time after the notice is given 15 within which the person must comply with the notice as 16 confirmed or varied. 17 68 Appeal against notices 18 (1) If a person has lodged an objection under section 67 and: 19 (a) the hazard management officer has failed to confirm, vary 20 or withdraw the notice within 14 days, or 21 (b) the person is not satisfied with the confirmation or 22 variation of the notice, 23 the person may appeal in writing to the Commissioner within 24 7 days of the end of the 14 day period or the date of the 25 confirmation or variation, whichever is earlier, stating the 26 grounds of appeal. 27 (2) The Commissioner must: 28 (a) consider the appeal within a reasonable time, and 29 (b) take into account all relevant circumstances, including the 30 matters referred to in section 67 (2). 31 (3) After considering the appeal, the Commissioner must: 32 (a) confirm the notice, or 33 (b) vary the notice in any way the Commissioner thinks fit, or 34 (c) cancel the notice. 35 (4) If the Commissioner confirms or varies the notice, the 36 Commissioner must give the person who lodged the appeal notice 37 Page 9
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 of his or her decision and must specify a time after the notice is 1 given within which the person must comply with the notice as 2 confirmed or varied. 3 69 Powers and duties of hazard management officer 4 (1) A hazard management officer may, for the purpose of forming an 5 opinion as to: 6 (a) whether a notice under section 66 should be served on the 7 occupier or owner of any land, or 8 (b) whether or not such a notice has been complied with, 9 enter during the daytime any part of the land (other than a 10 dwelling-house) that it is necessary to inspect in order to form 11 that opinion. 12 (2) A hazard management officer who requires an occupier or owner 13 of land to take action under a bush fire hazard reduction notice 14 must give notice in the approved form to such persons or bodies 15 as may be prescribed by the regulations. 16 (3) It is a duty of a hazard management officer to keep a record of 17 whether or not bush fire hazard reduction work has been carried 18 out in accordance with a bush fire hazard reduction notice. 19 Note. The Land and Environment Court has jurisdiction to hear and 20 dispose of proceedings under this Act. See section 20 of the Land and 21 Environment Court Act 1979. 22 70 Bush fire hazard reduction work in default of compliance with 23 notice 24 (1) In this section: 25 relevant notice means: 26 (a) a bush fire hazard reduction notice, or 27 (b) if a bush fire hazard reduction notice is the subject of an 28 objection or appeal, a notice under section 67 (4) or 68 (4), 29 respectively. 30 (2) If within the time specified in the relevant notice the owner or 31 occupier to whom it is given fails to comply with any requirement 32 of the notice, the Commissioner may, without prejudice to the 33 liability of the owner or occupier, enter on the land and carry out 34 the bush fire hazard reduction work the owner or occupier was 35 required to do under the notice. 36 (3) Any costs incurred by the Commissioner in carrying out such 37 work (including costs incurred in obtaining the approval of any 38 local or public authority under any other law to carry out the 39 Page 10
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 work) may be recovered from the owner or occupier of the land 1 as a debt due to the Crown in a court of competent jurisdiction. 2 [10] Section 71 Defence to court proceedings 3 Omit "expenses" from section 71 (b). Insert instead "costs". 4 [11] Section 73 Bush fire hazard reduction by Commissioner 5 Omit "74F" from section 73 (1) (c). Insert instead "74E (2)". 6 [12] Section 74 7 Omit the section. Insert instead: 8 74 Bush fire hazard reduction reports 9 (1) Each public authority that is responsible for managed land must 10 report to the Commissioner not later than 3 months after the end 11 of the financial year on its activities to reduce bush fire hazards 12 on the managed land during the preceding financial year. 13 (2) The report must include: 14 (a) details of the extent of implementation of any scheme for 15 the reduction of bush fire hazards set out in a bush fire risk 16 management plan that applies to the land, and 17 (b) information about such other matters (if any) as are 18 prescribed by the regulations. 19 (3) The annual report of the Service prepared under the Annual 20 Reports (Departments) Act 1985 must include details of 21 information contained in a report under this section for the year 22 to which the annual report relates. 23 [13] Section 74C How and to whom are complaints to be made 24 Omit section 74C (3). Insert instead: 25 (3) A local authority must refer any complaint made to it under this 26 Division to the Commissioner within 14 days of receipt of the 27 complaint. 28 [14] Section 74D Investigation of complaint 29 Omit "or local authority" wherever occurring. 30 Page 11
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 [15] Section 74D (3) 1 Omit "or a local authority". 2 [16] Sections 74E and 74F 3 Omit sections 74E74H. Insert instead: 4 74E Action that may be taken by Commissioner if bush fire hazard 5 exists 6 (1) If the Commissioner finds that a bush fire hazard exists on land 7 (other than land for which a public authority is responsible) to 8 which a bush fire hazard complaint relates, the Commissioner: 9 (a) may direct a hazard management officer to serve a notice 10 under section 66 on the owner or occupier of the land if no 11 bush fire hazard reduction notice has been served on the 12 owner or occupier of the land, or 13 (b) may, subject to sections 67 and 68, exercise his or her 14 powers under section 70 in respect of the land if a bush fire 15 hazard reduction notice has been served on the owner or 16 occupier of the land. 17 (2) If the Commissioner finds that a bush fire hazard exists on land 18 to which a complaint made to the Commissioner relates because 19 a public authority has failed to take notified steps, or otherwise 20 perform a duty imposed on it as referred to in section 63, the 21 Commissioner may, by notice in writing served on the public 22 authority, require it to carry out such bush fire hazard reduction 23 work as is specified by the Commissioner. 24 (3) If the public authority fails to carry out the specified work within 25 a reasonable time after service of the notice, the Commissioner 26 may carry out bush fire hazard reduction work on the land under 27 section 73. 28 74F Complainant to be notified of action taken 29 If any action is taken by the Commissioner in relation to a bush 30 fire hazard complaint, the Commissioner must, as soon as 31 practicable after it is taken, advise the complainant of the action 32 taken. 33 [17] Section 100E Issuing and certifying authorities 34 Omit section 100E (1). Insert instead: 35 (1) The issuing authority for a bush fire hazard reduction certificate 36 in respect of bush fire hazard reduction work to be carried out on 37 Page 12
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 private land by a person other than the Commissioner or a local 1 authority is: 2 (a) the local authority of the area in which the land is situated, 3 or 4 (b) the Commissioner. 5 [18] Section 100F Issue of bush fire hazard reduction certificates 6 Omit "A local authority or public authority" from section 100F (9). 7 Insert instead "A public authority, a local authority or the Commissioner". 8 [19] Section 100K Consultation on draft codes 9 Omit section 100K (1). Insert instead: 10 (1) The Commissioner must, in preparing a draft bush fire 11 environmental assessment code, consult with, and take into 12 account any recommendations made by or on behalf of the 13 following: 14 (a) the Director-General of the Department of Planning, 15 (b) the Director-General of the Department of Environment, 16 Climate Change and Water, 17 (c) the Nature Conservation Council of New South Wales, 18 (d) the NSW Farmers' Association, 19 (e) the Local Government Association of New South Wales, 20 (f) the Shires Association of New South Wales, 21 (g) the Director-General of the Department of Industry and 22 Investment, 23 (h) the Commissioner of NSW Fire Brigades, 24 (i) the Chief Executive of the Land and Property Management 25 Authority. 26 [20] Section 100M Approval of code 27 Omit "Minister for the Environment". 28 Insert instead "Minister for Climate Change and the Environment". 29 [21] Section 123 Membership and procedure of Advisory Council 30 Omit "NSW Farmers Association" from section 123 (1) (f). 31 Insert instead "NSW Farmers' Association". 32 Page 13
Rural Fires Amendment Bill 2009 Schedule 1 Amendment of Rural Fires Act 1997 No 65 [22] Section 128 Protection from liability 1 Omit "National Parks and Wildlife" from paragraph (e) of the definition of 2 protected person or body in section 128 (2). 3 Insert instead "the Department of Environment, Climate Change and Water". 4 [23] Schedule 3 Savings, transitional and other provisions 5 Insert at the end of clause 1 (1): 6 Rural Fires Amendment Act 2009 7 [24] Schedule 3 8 Insert at the end of the Schedule with appropriate Part and clause numbering: 9 Part Provisions consequent on enactment of 10 Rural Fires Amendment Act 2009 11 Definition 12 In this Part: 13 amending Act means the Rural Fires Amendment Act 2009. 14 Bush fire hazard reduction 15 Any action taken or commenced under Division 2 or 2A of Part 4 16 of this Act before the commencement of section 65A (as inserted 17 by the amending Act) is not affected by the amending Act, and 18 any such action may be continued or completed as if the 19 amending Act had not been enacted. 20 Existing Bush Fire Co-ordinating Committee 21 The amendment of section 47 by the amending Act does not 22 affect the appointment of a person holding office as a member of 23 the Bush Fire Co-ordinating Committee immediately before the 24 commencement of that amendment. 25 [25] Dictionary 26 Omit "the National Parks and Wildlife Service" from paragraph (c) of the 27 definition of fire fighting authority. 28 Insert instead "the Department of Environment, Climate Change and Water". 29 Page 14
Rural Fires Amendment Bill 2009 Amendment of Rural Fires Act 1997 No 65 Schedule 1 [26] Dictionary, definition of "hazard management officer" 1 Insert in alphabetical order: 2 hazard management officer means a person nominated as a 3 hazard management officer under section 65A. 4 Page 15
Rural Fires Amendment Bill 2009 Schedule 2 Amendment of other legislation Schedule 2 Amendment of other legislation 1 2.1 Fire Brigades Act 1989 No 192 2 Section 83 Delegation 3 Insert "or any other" after "under this" in section 83 (1). 4 2.2 Rural Fires Regulation 2008 5 [1] Clauses 14 (b) (ii) and 41 (e) (iii) 6 Omit "the Department of Lands" wherever occurring. 7 Insert instead "the Land and Property Management Authority". 8 [2] Clauses 14 (c), 34 (1) and 47 (c) (iv) 9 Omit "Department of Environment and Climate Change" wherever occurring. 10 Insert instead "Department of Environment, Climate Change and Water". 11 [3] Clause 14 (d) 12 Omit "Department of Primary Industries". 13 Insert instead "Department of Industry and Investment". 14 [4] Clause 14 (h) 15 Omit "NSW Farmers Association". 16 Insert instead "NSW Farmers' Association". 17 [5] Clause 31 Bush fire hazard reduction work required by hazard 18 management officers 19 Omit clause 31 (1). Insert instead: 20 (1) For the purposes of section 69 (2) of the Act, a hazard 21 management officer who by a bush fire hazard reduction notice 22 requires the occupier or owner of any land to burn fire breaks or 23 combustible matter or other material on relevant land must send 24 a copy of the bush fire hazard reduction notice to the office of the 25 Department of Environment, Climate Change and Water or the 26 Forestry Commission nearest to the relevant land. 27 Page 16
Rural Fires Amendment Bill 2009 Amendment of other legislation Schedule 2 [6] Clause 32 Bush fire hazard reduction work in default of compliance with 1 notice 2 Omit clause 32 (1). Insert instead: 3 (1) If the Commissioner enters any land under section 70 of the Act 4 and lights any fire on relevant land, the Commissioner must 5 notify the office of the Department of Environment, Climate 6 Change and Water or the Forestry Commission nearest to the 7 relevant land. 8 [7] Clause 33 Notice of intention to burn off or burn firebreak 9 Omit clause 33 (1). Insert instead: 10 (1) For the purposes of section 86 (1) of the Act, notice may be given 11 in writing or orally and must include particulars of: 12 (a) the name of the person proposing to light the fire, and 13 (b) the location, purpose, period and time of the fire proposed 14 to be lit. 15 [8] Schedule 2 Penalty notice offences 16 Omit the matter relating to section 66 (7) from Part 1. Insert instead: 17 Section 66 (8) 1,100 [9] Schedule 2, Part 1 18 Omit "550" wherever occurring from the matter relating to sections 99 (6) and 19 100 (2). 20 Insert instead "1,100". 21 Page 17
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