RURAL FIRES ACT 1997 - SCHEDULE 3

RURAL FIRES ACT 1997 - SCHEDULE 3

SCHEDULE 3 – Savings, transitional and other provisions

(Section 137)

Part 1 - General

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--

this Act

Fire Services Legislation Amendment Act 1998

Rural Fires Amendment Act 2000

Rural Fires and Environmental Assessment Legislation Amendment Act 2002 , to the extent that it amends this Act

State Revenue and Other Legislation Amendment (Budget Measures) Act 2008 , but only to the extent that it amends this Act

Rural Fires Amendment Act 2009

Emergency Services Legislation Amendment (Finance) Act 2009 , but only to the extent it amends this Act

any other Act that amends this Act

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 - Provisions consequent on this Act

2 Commissioner and other public service staff

The repeal of the Bush Fires Act 1949 does not affect the appointment of the person holding office as the Commissioner of Bush Fire Services at the time of the repeal or of any other staff under the Public Sector Management Act 1988 .

3 Dissolution of Bush Fire Council, Bush Fire Co-ordinating Committee and Finance Committee

(1) In this clause--


"replaced body" means--

(a) the Bush Fire Council, or

(b) the Bush Fire Co-ordinating Committee, or

(c) the Finance Committee,

within the meaning of the Bush Fires Act 1949 , as in force immediately before the commencement of this clause.

(2) On the commencement of this clause each replaced body is dissolved.

(3) A person who, immediately before the commencement of this clause held office as a member of a replaced body--

(a) ceases to hold that office, and

(b) is not entitled to any remuneration or compensation because of that loss of office,

but is entitled (if otherwise eligible) to hold the office on a replacing body.

4 Fire control officer

A person holding office as a fire control officer or deputy fire control officer for a bush fire district under the Bush Fires Act 1949 immediately before the commencement of section 34 is taken to have been appointed as the fire control officer or deputy fire control officer for that district as constituted as a rural fire district under this Act.

5 Bush fire brigades

(1) A bush fire brigade formed or organised for a bush fire district under the Bush Fires Act 1949 immediately before the commencement of section 15 is taken to be the rural fire brigade for the district as constituted as a rural fire district under this Act.

(2) A member or officer of a bush fire brigade formed or organised for a bush fire district under the Bush Fires Act 1949 immediately before the commencement of section 15 is taken to be a member or officer of the rural fire brigade for the district as constituted as a rural fire district under this Act.

6 Nomenclature

Despite clause 7, a bush fire brigade that by the operation of that clause is taken to be a rural fire brigade may resolve that it continue to be known as the "X bush fire brigade", X being the name of the rural fire brigade.

7 Reference to bodies

On and from the commencement of the relevant provision of this Act, a reference (however expressed) in any other Act (whether assented to before, on or after the commencement of this clause) or in any other instrument--

(a) to a bush fire district is to be read as a reference to a rural fire district under this Act,

(b) to a fire control officer for a bush fire district is to be read as a reference to a fire control officer for a rural fire district under this Act,

(c) to a bush fire brigade is to be read as a reference to a rural fire brigade under this Act,

(d) to a group of bush fire brigades is to be read as a reference to a group of rural fire brigades under this Act,

(e) to the New South Wales Bush Fire Fighting Fund is to be read as a reference to the New South Wales Rural Fire Fighting Fund,

(f) to a Bush Fire Management Committee within the meaning of the Bush Fires Act 1949 is to be read as a reference to a Bush Fire Management Committee constituted under Part 3,

(g) to a plan of operations or fuel management plan approved under section 41A of the Bush Fires Act 1949 is to be read as a reference to a plan of operations or bush fire risk management plan, respectively, within the meaning of this Act.

8 Bush fire management plans

A plan of operations or fuel management plan prepared and submitted to the Bush Fire Co-ordinating Committee by a Bush Fire Management Committee within the meaning of the Bush Fires Act 1949 is taken, until the day that is 2 years after the day it was approved under section 41A of that Act or unless it is sooner revoked, to be a plan of operations or bush fire risk management plan, respectively, that is in force under this Act.

9 Transfer of assets of Fire Prevention Associations

(1) In this clause--


"assets" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes choses in action and documents.


"Association" means Fire Prevention Association within the meaning of the Bush Fires Act 1949 .


"liabilities" means all liabilities, debts and obligations (whether present or future and whether vested or contingent).

(2) On the commencement of this clause--

(a) the assets and liabilities of an Association become assets and liabilities of the Crown, and

(b) all proceedings by or against an Association pending immediately before that day become proceedings pending by or against the Crown.

10 Certain fire control officers who are councillors to cease to hold office

(1) Despite section 36, a fire control officer or a deputy fire control officer who, immediately before the commencement of that section is a councillor, continues, subject to this Act, to be such an officer for the balance of his or her term of office as a councillor.

(2) Any such fire control officer or a deputy fire control officer does not, by virtue of holding that office, hold an office or place of profit for the purposes of section 275 (2) of the Local Government Act 1993 .

(3) In this clause--


"councillor" has the same meaning as it has in the Local Government Act 1993 .

11 Fire patrol officers

A person who, immediately before the commencement of this clause, held office as a fire patrol officer, or honorary fire patrol officer, under the Bush Fires Act 1949 --

(a) ceases to hold that office, and

(b) is not entitled to any remuneration or compensation because of that loss of office.

Part 3 - Provisions consequent on enactment of Fire Services Legislation Amendment Act 1998

12 Preparation of bush fire management plans

The amendment made to section 52 by the Fire Services Legislation Amendment Act 1998 extends to any Bush Fire Management Committee constituted before the commencement of that amendment.

13 Bush fire prevention--actions by fire control officers

Any act, matter or thing done by or with respect to a fire control officer of a local authority for the purposes of section 67 before the commencement of the amendments made to that section by the Fire Services Legislation Amendment Act 1998 is taken, to the extent that it has effect after those amendments commence, to have been done by or with respect to the local authority.

Part 4 - Provisions consequent on enactment of Rural Fires Amendment Act 2000

14 Definitions

In this Part--


"affected officer" means a person who, immediately before the commencement of this clause--

(a) was employed by the local authority responsible for a rural fire district as a fire control officer or deputy fire control officer for the district, or

(b) was employed by the local authority in a position exercising functions relating to fire control in the district that is designated for the purposes of this paragraph by the local authority and the Commissioner.

15 Transfer of existing fire control officers, deputy fire control officers and designated fire control officers to positions in Department of Rural Fire Service

(1) On the commencement of this clause, an affected officer is entitled to be appointed to a position in the Department of Rural Fire Service of the Public Service in accordance with this clause.

(2) The Governor may, on the recommendation of the Commissioner and with the consent of the affected officer concerned, by order published in the Gazette, appoint the affected officer to a position in the Department of Rural Fire Service of the Public Service.

(3) A person who is the subject of such an order is to be regarded for all purposes as having become an officer of the Public Service, in accordance with the terms of the order, on the transfer day.

16 Employment conditions of transferred officers

(1) This clause applies to a transferred officer.

(2) A transferred officer is entitled to be paid salary or wages, and allowances, at a rate not less than the rate that was payable to the transferred officer as a fire control officer, deputy fire control officer or designated fire control officer immediately before the transfer day, until the salary, wages or allowances is or are varied or altered--

(a) by a State industrial instrument, or

Note :
"State industrial instrument" is defined in the Interpretation Act 1987 .

(b) by or under the Public Sector Management Act 1988 , or

(c) otherwise in accordance with law.

(3) Except as provided by this Part and the regulations, if any condition of employment of the transferred officer was, immediately before the transfer day, regulated by an award of a State industrial instrument applicable to the person as an affected officer, the condition (so long as it does not conflict with any provision of the Public Sector Management Act 1988 or the regulations under that Act) is to continue to apply to the person until it is regulated--

(a) by a State industrial instrument, or

(b) by or under the Public Sector Management Act 1988 , or

(c) otherwise in accordance with law.

Note : An example of an entitlement preserved by clause 16 is the preservation of salary incremental scales payable to transferred officers.

17 Preservation of certain rights of existing fire control officers, deputy fire control officers and designated fire control officers

(1) This clause applies to a transferred officer.

(2) Such an officer is entitled to retain--

(a) an entitlement to accrued annual leave up to a maximum of 40 days, and

(b) an entitlement to accrued sick leave up to a maximum of 65 days, and

(c) accrued long service leave.

(3) Leave referred to in subclause (2) is in addition to any leave that accrues after the transfer day.

(4) Such an officer is entitled to have service with the local authority that employed the officer immediately before the transfer day recognised for the purpose of eligibility for sick leave, long service leave, maternity leave, paternity leave, adoption leave or any other leave for which a condition of eligibility is a minimum period of service.

(5) In this clause--


"accrued annual leave" means annual leave owing to an affected officer (but not taken) immediately before the transfer day.


"accrued long service leave" means long service leave accrued by an affected officer (but not taken) immediately before the transfer day.


"accrued sick leave" means the amount of sick leave to which an affected officer would have been entitled in the event of illness immediately before the transfer day, other than any such sick leave not taken by the officer that the local authority employing the officer would be permitted or required under an award or agreement to pay out to the officer on resignation or termination.

18 Funding of leave entitlements

A local authority that, immediately before the transfer day, employed a transferred officer must, in accordance with any directions given or guidelines issued by the Treasurer, pay to the Commissioner such amount as is necessary to fund the liabilities incurred by the Department of Rural Fire Service with respect to the annual leave and long service entitlements of the transferred officer under clause 17 (2) (a) and (c).

19 Contributions to New South Wales Rural Fire Fighting Fund

The amendments made by Schedule 1 [25[#93] and [26[#93] to the amending Act apply to the financial year beginning on 1 July 2001.

Part 5 - Provisions consequent on enactment of Rural Fires and Environmental Assessment Legislation Amendment Act 2002

20 Definition

In this Part--


"amending Act" means the Rural Fires and Environmental Assessment Legislation Amendment Act 2002 .

21 Savings in respect of planning matters

(1) The amendment made by Schedule 3 [11[#93] to the amending Act does not affect--

(a) any development consent granted under the Environmental Planning and Assessment Act 1979 before the commencement of that amendment or any development carried out in accordance with such a consent, or

(b) any activity to which Part 5 of that Act applies (or any approval for the carrying out of such activity) if the provisions of that Part were complied with for that activity before the commencement of that amendment.

(2) If an application for development consent has been made but not been finally determined on the commencement of Schedule 3 [11[#93] to the amending Act, the amendment made by Schedule 3 [11[#93] does not apply to the determination of the application or to any development carried out in accordance with a development consent granted on the determination of the application.

(3) Despite subclause (2), the Minister for Planning may, by notice served on the consent authority, direct that all or any provisions inserted by the amendment apply to the determination of the application.

(4) Despite subclause (2), if an appeal relating to an application referred to in that subclause has been made to the Land and Environment Court, the Court may, by order, direct that all or any provisions inserted by the amendment apply to the determination of the application.

22 Agreements about review of incidence of bush fire hazards

Any agreement entered into by the Commissioner under section 12A in relation to the functions of a local authority under section 74 (1), as in force before the commencement of Schedule 3 [4[#93] to the amending Act, ceases to have effect on that commencement.

23 Fire permits

A fire permit issued by the council of a local government area and in force immediately before the commencement of the amendments made to section 88 by the Rural Fires and Environmental Assessment Legislation Amendment Act 2002 is taken to be a fire permit issued by the Commissioner.

Part 6 - Provisions consequent on enactment of Rural Fires Amendment Act 2009

24 Definition

In this Part--


"amending Act" means the Rural Fires Amendment Act 2009 .

25 Bush fire hazard reduction

Any action taken or commenced under Division 2 or 2A of Part 4 of this Act before the commencement of section 65A (as inserted by the amending Act) is not affected by the amending Act, and any such action may be continued or completed as if the amending Act had not been enacted.

26 Existing Bush Fire Co-ordinating Committee

The amendment of section 47 by the amending Act does not affect the appointment of a person holding office as a member of the Bush Fire Co-ordinating Committee immediately before the commencement of that amendment.

Part 7 - Provisions consequent on enactment of Rural Fires Amendment Act 2014

27 Definition

In this Part--


"amending Act" means the Rural Fires Amendment Act 2014 .

28 Application of amendments

(1) The amendments made to section 99A by the amending Act do not apply to an offence under that section committed before the commencement of the amending Act.

(2) Section 100 (1A) (as inserted by the amending Act) does not apply to an offence under section 100 (1) committed before the commencement of the amending Act.

Part 8 - Provisions consequent on enactment of Fire and Emergency Services Levy Act 2017

29 Definitions

In this Part--


"amending Act" means the Fire and Emergency Services Levy Act 2017 .


"final contribution" --see clause 32.


"final return" --see clause 31.


"final year of the scheme" means the financial year commencing on 1 July 2016.


"insurance company" means any body corporate, partnership, association, underwriter or person that or who--

(a) issues or undertakes liability under policies of insurance against loss of or damage to any property situated in New South Wales, or

(b) receives premiums in respect of such policies of insurance on behalf of or for transmission to any body corporate, partnership, association, underwriter or person outside New South Wales.

(a) the premiums, or

(b) bonuses or return premiums allowed in respect of policies of insurance the subject of the premiums, or

(c) such part of the premiums received by or due to the company as is paid or due to be paid by way of reinsurance by the company to another insurance company in the State,

30 Amendments have effect from 1 July 2017

(1) The amendments to Part 5 of this Act made by the amending Act apply in respect of the financial year commencing on 1 July 2017 and subsequent financial years.

(2) Subject to this Part, the amendments do not affect any liability for a rural fire brigade contribution for a financial year commencing before 1 July 2017 and Part 5, and Schedule 2, as in force immediately before the amendments made to this Act by the amending Act, continue to apply in respect of any such financial year as if the amendments had not been made.

31 Final returns to be provided by insurance companies

(1) An insurance company must, by 30 September 2017 or another date specified by the Commissioner by notice published in the Gazette, give to the Commissioner--

(a) a return in the form approved by the Commissioner showing the total amount of premiums received by or due to the company for the previous financial year for relevant insurance (a
"final return" ), and

(b) a certificate from an auditor that relates to the return and complies with subclause (2).

(2) The certificate from the auditor must--

(a) be in the form approved by the Commissioner, and

(b) be from an auditor who is--

(i) a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth, or

(ii) a person not resident in the State who has qualifications that, in the Commissioner's opinion, are appropriate for the giving of the certificate.

(3) An insurance company is guilty of an offence if it--

(a) fails to give the Commissioner a return and certificate as required by this clause, or

(b) gives the Commissioner a return that is false or misleading in a material particular.

: Maximum penalty--20 penalty units.

32 Calculation of final contribution

(1) The Commissioner must, by the end of 30 November 2017, calculate a final contribution for each liable insurance company.

(2) A
"final contribution" is the total rural fire brigade contribution that would have been payable by the insurance company for the final year of the scheme if the contribution had been calculated on the basis of--

(a) the premium total provided by the insurance company in its final return, and

(b) the premium totals provided by all insurance companies in their final returns.

(3) If an insurance company fails to provide a final return to the Commissioner within the time required under clause 31, or any further time (not exceeding 30 days) allowed by the Commissioner--

(a) the Commissioner may estimate the premium total for that insurance company using any information available to the Commissioner (including information from previous returns, if any), and

(b) that estimate is taken to be the premium total provided by the insurance company in its final return.

(4) If the Commissioner estimates the premium total for an insurance company under subclause (3), the final contribution payable by that insurance company is that estimate plus an insurer loading of 50% of that estimate.

(5) In this clause--


"liable insurance company" means an insurance company liable for a rural fire brigade contribution in the final year of the scheme.


"premium total" means the total amount of premiums of an insurance company that are subject to a rural fire brigade contribution.

33 Final assessment

(1) The Commissioner must give to each insurance company that made or is required to make a rural fire brigade contribution for the final year of the scheme a final assessment notice for that year.

(2) The final assessment notice must state the following--

(a) the final contribution payable by the insurance company for the final year of the scheme,

(b) the amount of any rural fire brigade contribution already paid by the insurance company for that financial year including, if paid in instalments, the total of all instalments already paid (the
"total contribution already paid" ),

(c) if the final contribution payable by the insurance company exceeds the total contribution already paid--

(i) the difference between those amounts (a
"contribution deficit" ), and

(ii) the date by which the contribution deficit must be paid to the Commissioner (being a date that is no earlier than 30 days after the assessment notice is given to the insurance company),

(d) if the total contribution already paid exceeds the final contribution payable by the insurance company--the difference between those amounts (a
"contribution surplus" ).

(3) If the assessment notice specifies a contribution deficit, the insurance company must pay the contribution deficit to the Commissioner.

(4) The contribution deficit is payable to the Commissioner by the date for payment specified in the assessment notice or any later date permitted by the Commissioner.

(5) If an insurance company fails to pay a contribution deficit in full by the date on which it is payable to the Commissioner, the applied provisions of the Taxation Administration Act 1996 apply to the unpaid amount as if the unpaid amount were a tax and this Act were a taxation law.

(6) The
"applied provisions" of the Taxation Administration Act 1996 are the following provisions of that Act--

(a) Division 1 (Interest) of Part 5,

(b) Division 2 (Penalty tax) of Part 5 (except sections 28- 30),

(c) any provisions that are relevant to the interpretation of the above provisions.

(7) For the purpose of the applied provisions of the Taxation Administration Act 1996 --

(a) a tax default is taken to occur if the contribution deficit is not paid in full by the date on which it is payable, and

(b) a reference to the Chief Commissioner is to be read as a reference to the Commissioner under this Act.

(8) If a contribution deficit, or any part of a contribution deficit, is not paid in full by an insurance company to the Commissioner by the date on which it is payable, the unpaid amount and any interest and penalty tax payable on the unpaid amount--

(a) constitutes a debt due and payable to the Commissioner, and

(b) may be recovered in a court of competent jurisdiction by the Commissioner.

(9) A contribution deficit is to be paid into the Fund.

(10) If the assessment notice specifies a contribution surplus, the Commissioner is to refund the amount of the contribution surplus to the insurance company no later than 30 June 2018.

(11) A refund is to be paid from the Fund.

34 Liability of owner where foreign insurer involved

(1) The Commissioner may notify a relevant owner that the owner is responsible for an appropriate proportion of any contribution deficit that is required to be paid by a foreign insurance company that holds a risk in respect of the owner's property.

(2) The appropriate proportion is the proportion that the premiums paid by the relevant owner for the final year of the scheme bears to the premium total provided (or taken under this Part to have been provided) by the insurance company in its final return.

(3) Any insurer loading is not to be included in the calculation of the contribution deficit under this clause.

(4) If the relevant owner fails to pay the appropriate proportion of the final contribution within 30 days after it is due, the owner is guilty of an offence.

: Maximum penalty--10 penalty units.

(5) An amount paid by a person under this clause may be deducted from any premium recoverable in the State by or on behalf of the foreign insurance company on the issue or renewal of an insurance policy on the property or may be recovered from the foreign insurance company as a debt by the person making the payment.

(6) This clause applies whether the premium concerned was received in or outside the State.

(7) In this clause--


"relevant owner" means a person who is the owner of property in respect of which a foreign insurance company has received a premium subject to a rural fire brigade contribution.

35 Commissioner to make final 2-year assessment

(1) The Commissioner must make an assessment, in relation to each insurance company that was required to make rural fire brigade contributions in the final year of the scheme or the previous financial year, of the total amount of rural fire brigade contributions payable by the insurance company for the final 2 years of the scheme (a
"final 2-year assessment" ).

(2) The final 2-year assessment is to consist of the total of the following amounts, as assessed by the Commissioner--

(a) the final contribution payable by the insurance company for the final year of the scheme (excluding any insurer loading payable by the insurance company),

(b) the total of rural fire brigade contributions payable by the insurance company for the financial year commencing on 1 July 2015.

(3) The Commissioner is to give the final 2-year assessment to the Monitor.

(4) The Commissioner must give to the Monitor a final 2-year assessment in relation to an insurance company within 30 days after making an assessment of the final contribution payable by the insurance company for the final year of the scheme.

36 Certificate evidence

A certificate signed by the Commissioner that states any of the following matters is admissible in proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate--

(a) the final contribution payable by an insurance company,

(b) the final 2-year assessment for an insurance company,

(c) the amount of any contribution deficit,

(d) the amount of any contribution surplus.

37 Transitional provision for adjusted estimates by Minister

A reference in Part 5 of this Act, as amended by the amending Act, to contributions made to the New South Wales Rural Fire Fighting Fund by the Treasurer includes a reference to rural fire brigade contributions made for the financial year commencing on 1 July 2016 or a previous financial year.

Part 9 - Provisions consequent on enactment of Rural Fires Amendment (Fire Trails) Act 2016

38 Definition

In this Part--


"amending Act" means the Rural Fires Amendment (Fire Trails) Act 2016 .

39 Application of amendments to existing agreements relating to private land

The amendments made by the amending Act (other than this clause) do not apply to agreements entered into by the Commissioner before the commencement of this clause in relation to fire trails on private land, unless the owner consents.

40 Timetable for first draft fire access and fire trail plans

The original period referred to in section 52 (4) (a) (as inserted by an amendment made by the amending Act) must be within 3 years after the commencement of that amendment.