Jervis Bay Territory Rural Fires Rules 2024

Replacement Explanatory Statement

Issued by the Authority of the Minister for Regional Development, Local Government and Territories

Jervis Bay Territory Acceptance Act 1915

Jervis Bay Territory Rural Fires Rules 2024

Authority

The Jervis Bay Territory Rural Fires Rules 2024 (the Rules) is made under subsection 98(1) of the Jervis Bay Territory Rural Fires Ordinance 2014.

Purpose

The purpose of the instrument is to make rules as permitted by the Jervis Bay Territory Rural Fires Ordinance 2014 (the Ordinance) to provide effective and efficient fire management services to the Jervis Bay Territory (JBT). The instrument replaces the Jervis Bay Territory Rural Fires Rule 2014 which sunsets on 1 October 2024.

Background

Note: The Service Standards, procedures and policies referred to in this Replacement Explanatory Statement are accurately referenced as at the time of publication, but may change during the period the Instrument is in effect.

The Ordinance provides the legislative framework for fire management services to the JBT. It establishes the JBT Rural Fire Service, the JBT Fire Management Committee (FMC) and deals with other matters relating to bushfire prevention, such as preparation of JBT Bush Fire Management Plans and issuing of notices and fire permits.

Section 98 of the Ordinance gives the Minister the power to make rules in relation to the issuing of fire permits, the classification of substances as combustible, the operation of committees, the service of notices or directions under the Ordinance, the conduct and discipline of members of the Rural Fire Service, and the operations of rural fire brigades. The rules may not:

• impose a tax; or
• directly amend the text of the Ordinance.

For practical reasons and to ensure consistency across jurisdictions in responding to emergencies, the Australian Government engages the New South Wales Rural Fire Service (NSWRFS) to provide day-to-day management of the Jervis Bay Territory Rural Fire Service and operational support in relation to fire management in the JBT.

Due to this cross-border delivery of fire services from New South Wales (NSW) to the JBT, the Ordinance and the Rules are modelled off the NSW Rural Fires Act 1997 and Rural Fires Regulations 2022 respectively, with modifications to reflect the JBT’s jurisdictional and administrative circumstances as appropriate. Many of the provisions in the Ordinance and the Rules are identical to the NSW legislation which gives emergency services personnel clarity as to their role and their rights and responsibilities regardless of whether they are operating in the JBT or in NSW on any given day.

The JBT Rural Fire Service is aligned as far as practical, with the services provided by the NSWRFS in the Shoalhaven Rural Fire District. Members of the JBT Rural Fire Service are all volunteers and JBT brigades are part of a local NSW group in the Shoalhaven district. In practice, this means that the Service Standards, policies and procedures applying to NSWRFS members are applied to JBT Rural Fire Service members.

Under the Jervis Bay Territory Rural Fires Ordinance 2014 (the Ordinance) and the Rules, new Service Standards can be made from time to time. Service Standards are policy documents that set out the policies and procedures to be followed by Rural Fire Service members in connection with the operation, management and control of the service.

The authority to make Service Standards has been delegated by the Minister to the Commissioner of the NSW RFS and is covered by the agreement between the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department) and NSWRFS.

As at the date of publishing this Replacement Explanatory Statement, Service Standards used as operational policies by the JBT RFS can be found on the NSWRFS website at https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards.

Review processes

Most membership decisions in the Rules specify an internal review process. The Rules provide a robust process involving reviews conducted at senior level either by a senior officer of the NSWRFS, at or above the rank of Assistant Commissioner, or by the Minister. These review provisions provide for review by a person other than the primary decision‑maker who may affirm or vary the original decision.

In other instances, such as in relation to probationary membership, the same informal review processes available to members of the NSWRFS local group are available to JBT Rural Fire Service members. That is, the person can request reconsideration of the decision.

This is consistent with the Australian Administrative Law Policy Guide 2011 (the Guide) which acknowledges some agencies may have ‘ad hoc systems’ rather than formal legislative review rights. It notes that these may be ‘simply available through administrative processes in the agency. Internal review can be sought by requesting reconsideration of a decision or by following the set procedures of more formal mechanisms.’ The Guide further acknowledges that ‘generally, internal review is easy for applicants to access, and enables a quicker and more inexpensive means of re-examining decisions where applicants believe a mistake has been made.’

Summary of the Rules

This instrument remakes the Jervis Bay Territory Rural Fires Rule 2014 and in summary it:

• Sets out definitions used in the Rules and prescribes a definition of managed land for the purposes of section 6 of the Ordinance.
• Sets out the requirements for the constitution of rural fire brigades, including the requirement for brigades to review their constitution annually.
• Prescribes the criteria and conditions for becoming a member of a rural fire brigade, including serving an initial six month probationary period.
• Sets out the circumstances and process for removing a person from a rural fire brigade.
• Sets out the process for review of decisions relating to membership, including decisions by the Minister refusing to include a person’s name on the brigade register and decisions to remove a person from a brigade register.
• Sets out the process for taking disciplinary action against a member of a rural fire brigade as well as the process for appeals against disciplinary decisions.
• Requires the officer in charge of the brigade to prepare and provide an incident report following attendance by the brigade at a fire, incident or other emergency.
• States that the FMC will meet in the manner and at the times determined by the FMC.
• Requires the FMC to display a draft bush fire risk management plan together with any information to help understand it for at least 42 days, during which interested parties may make submissions on the plan.
• Requires a hazard management officer appointed under the Ordinance to give notice of bush fire hazard reduction work to be undertaken on land within 8 kilometres of Commonwealth land.
• Requires notice be given to the relevant Commonwealth authority where a permit has been given to light a fire on Commonwealth land. 
• Prescribes the manner in which notices and directions should be served, including requirements when the person to be served is not in JBT at the time of service.
• Requires the Minister keep a register of commendation and long service awards given to rural fire brigade members, as well as awards for bravery or other forms of meritorious service.
• Specifies when rural fire brigade members are able to assist public authorities outside of the JBT, including assistance to NSW Fire and Rescue, the Australian Federal Police and NSW Ambulance in the circumstances listed.
• Prescribes several conditions for fire permits, including lighting the fire be consistent with the bushfire risk management plan and be in accordance with any direction from the Minister.

The instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is subject to the default sunsetting requirements and disallowance. The Rules commence on 1 October 2024.

Details of the instrument are set out in Attachment A.

Consultation

In preparing the Rules, the Department of Infrastructure Transport, Regional Development, Communications and the Arts (the Department) consulted Commonwealth, Australian Capital Territory and New South Wales agencies and organisations which are involved with and/or affected by these Rules.

The Department also consulted the JBT Emergency Management Committee (EMC) and FMC. Members of the EMC and FMC include representatives from:

Agencies and organisations consulted agreed the Rules were needed and that the 2014 Rules were meeting their objective and should be remade. No substantive changes to the 2014 Rules were proposed for the remade rules. 

In August 2023, the Department undertook an initial round of four weeks public consultation on an issues paper via the Department’s ‘Have Your Say’ public consultation platform. JBT community members were notified of the consultation in a Community Bulletin. One formal submission was received, which did not recommend any changes to the rules.

Between August and December 2023, the Department worked with stakeholders, in particular the NSWRFS to develop exposure draft Rules and explanatory material.

Between 14 December 2023 and 2 February 2024, the Department undertook a further round of public consultation on Exposure Draft Rules via the Department’s ‘Have Your Say’ consultation platform. The Department again informed the community of this consultation via a Community Bulletin which was delivered to homes in the local community. It also provided material for social media posts to the Wreck Bay Aboriginal Community Council. No submissions were received on the exposure draft material.

Office of Impact Analysis

The Office of Impact Analysis (OIA) advised (reference OIA23-05046) the instrument is unlikely to have a more than minor regulatory impact. This is on the basis the Rules will likely have low direct impact (governance and appointment arrangements for fire management operation, and notice requirements), noting the modest population of the Jervis Bay Territory (JBT) and the Rules are being remade with no substantive changes to Jervis Bay Territory Rural Fires Rule 2014. As such, OIA advised the preparation of an Impact Analysis (IA) is not required and neither is a letter certifying the efficient and effective operation of the Rules in lieu of an IA. 

Statement of Compatibility with Human Rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.

Attachment A

Details of the Jervis Bay Territory Rural Fires Rules 2024

Section 1 – Jervis Bay Territory Rural Fires Rules 2024

This section provides that the name of the instrument is the Jervis Bay Territory Rural Fires Rules 2024.

Section 2 – Commencement

This section provides for the instrument to commence on 1 October 2024.

Section 3 – Authority

This section provides that the instrument is made under subsection 98(1) of the Jervis Bay Territory Rural Fires Ordinance 2014.

Section 4 – Definitions

This section notes that a number of expressions used in the Rules such as such as ‘AFP’, ‘Fire Management Committee’ and ‘Service Standards’ are defined in the Ordinance. The section also defines ‘appropriate disciplinary authority’, ‘brigade register’, ‘hazardous material’ and ‘Ordinance’.

Section 5 – Schedules

This section provides that each instrument specified in the Schedule is amended or repealed as set out in the applicable item in the Schedule concerned, and that any other item in a Schedule to the instrument has effect according to its terms.

Part 2 – Rural fire brigades

Section 6 – Constitution of rural fire brigades

This section provides for the constitution of rural fire brigades. It prescribes the constitution include the name of the brigade, the classification of members (other than officers), arrangements for brigade meetings and member voting rights. Brigade members must review the brigade’s constitution annually to determine whether it should be amended, having regard to any relevant Service Standards. Applicable Service Standards are made by the New South Wales Rural Fire Service (NSWRFS) Commissioner and can be found at https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards. At the time of publication, the Service Standard relevant to the constitution of brigades is Service Standard 2.1.2 Brigade Constitution.

Section 7 – Membership of rural fire brigades

This section prescribes the criteria and conditions for eligibility for membership to a rural fire brigade. A person is eligible for membership if they comply with membership rules set out in the brigade constitution and satisfy any membership requirements determined by the Minister. A copy of membership rules are provided to applicants electronically and in the case of the Code of Conduct and Ethics and Respectful and Inclusive Workplace Standards, in hard copy. Service Standards are also explained in the Member Induction module, which forms a part of the mandatory training for RFS members prior to moving from a probationary to an ordinary member.

Members of rural fire brigades perform an important role in managing and preventing fires and other areas of emergency response. It is critical therefore that members have the requisite qualities, skills and training to keep themselves and the community safe when responding to an emergency. Given the porous border between Jervis Bay Territory (JBT) and New South Wales (NSW), and that JBT brigade members operate as part of the NSW RFS group structure, it is essential that members of the JBT Rural Fire Service (JBT RFS) operate under the same instructions and procedures as their NSW RFS counterparts.

Emergency situations are often fluid and may be unpredictable, therefore responders need to be able to act quickly, safely and according to standard operating procedures within an identified chain of command. Under the Ordinance, JBT RFS members hold extensive powers by virtue of their positions, including powers to remove or restrain a person or thing, to enter premises, close buildings and streets, direct traffic and to destroy parts of buildings or fences in certain circumstances.

Given this context, it is necessary and appropriate the Minister and their delegates have flexibility and broad discretion to determine initial suitability of applicants and to assess and determine their ongoing suitability. This protects the community, the JBT RFS and other volunteers, ensuring they can have confidence in the suitability of RFS members.

These initial and ongoing requirements are identical to those governing members of the NSW RFS and the discretionary powers of the NSW RFS Commissioner and their delegates.

Considerations include ensuring members have the requisite qualities (such as being of good character and having sound judgement), and that members attain and retain requisite competencies. Such considerations are, by their nature, difficult to exhaustively define, and so require a broad discretion to take all relevant matters into account.

In administering the JBT brigades, the NSW RFS assesses membership, including new applications, on the basis of published criteria including criminal history, working with children checks, previous service history, physical suitability for certain roles and health conditions. The criteria used to assess a person as fit and proper under subsections 7(2) and 9(2) are detailed in Service Standard 2.1.6 Volunteer Membership Applications.

It is necessary and appropriate that the Minister retain broad discretionary powers beyond these criteria in the event that an unforeseen adverse characteristic of a member could or does compromise the Minister’s confidence that the member can carry out their duties and appropriately wield the powers given to them.

The broad discretionary powers are similar to those held by entities that regulate membership of other professions and disciplines, such as professional firefighters, legal practitioners or police officers.

Under subsection 7(2), the Minister may refuse to list a person as a member of a rural fire brigade if the Minister considers the person is not a fit and proper person to be a member. In practice, this assessment will be made based on the person’s application and the outcome of administrative processes such as a Police Check. Where a member discloses a criminal history, the RFS can, after ordinary consideration of criminal history and other eligibility criteria, use its discretionary power to accept the applicant as a probationary member. Failure to disclose prior criminal history later identified may call into question an applicant’s suitability for membership.

If a person is refused membership, the Minister must notify the person in writing.

A person may seek an internal review of such a decision under subsection 10. Under subsection 7(4), the Minister may impose conditions on the person’s membership. In practice this may include such things as the types of duties the person is able to perform. 

Under subsection 7(4), a person’s listing on a brigade register may be subject to conditions.  The decision to impose conditions might be made on the basis of physical limitations or health conditions which might impact on the person’s ability to safely fulfil fundamental requirements of certain roles. Such assessments are informed by information provided by the applicant and their doctor, in response to statements of requirement for specific roles.

Conditions imposed will depend on the particular facts and context and role but may include conditions such as the person may not attend particular types of incidents, may not perform certain duties or must only perform certain duties (e.g. operational support duties). For example, a member with asthma might not be permitted to attend a bushfire incident where smoke could endanger their health but they could be assigned to operational administrative duties.

Persons applying to and joining the JBT RFS are informed of and participate in these assessments and are aware of potential for conditions through the Service Standard 2.1.6 Volunteer Membership Applications and associated application forms and processes.

Section 8 – Probationary membership

This section prescribes an initial six month probationary period for new members of rural fire brigades. The Minister may remove a person’s name from the brigade register if at the end of the probationary period the person has not achieved a satisfactory level of competency, or does not satisfy the membership requirements set out in the brigade’s constitution. The person must be notified if their name is removed from a brigade register.

Section 9 – Removal of membership

This section prescribes the criteria and conditions for removing a person from a rural fire brigade register. The Minister must remove a person’s name from the register if the person dies or asks for their name to be removed. Under subsection 9(2), the Minister may remove a person’s name where the person has become mentally incapacitated; been convicted inside or outside the JBT of an offence punishable by 12 months or more imprisonment; or where in the Minister’s opinion the person is no longer a fit and proper person to be a rural fire brigade member. A person can seek review of these decisions as set out in section 10.

The Minister may also remove the person’s name from the register where they are found to have committed a disciplinary breach under section 11 of the Rules. Appeal rights in relation to disciplinary breaches are set out in section 11.

Other than when a person has died or requested their name be removed from the register, the Minister must give the person 21 days’ notice before removing their name from the register. If the person seeks review of the decision, their name must not be removed until after the conclusion of any review against the decision.

It is essential the community and the brigade as a whole has trust and confidence in brigade members and their suitability. Determining whether a person is and remains a ‘fit and proper’ person may involve both objective and subjective considerations. It will also depend on the context in which the individual is operating. Not all brigade members attend fires and similar incidents. There are a number of different types of roles brigade members may occupy ranging from community engagement and brigade administration, operational support and communications, to frontline firefighting and emergency response.

A person may be considered to no longer be a fit and proper person to remain on the brigade where they, for example, fail to maintain or undertake relevant training; are physically unable to undertake duties with the brigade and cannot be assigned to other duties; fail to uphold the brigade’s Code of Conduct; repeatedly fail to attend or are late for rostered shifts; demonstrate reluctance or unwillingness to undertake assigned duties or responsibilities; are not fulfilling their duties to their full capacity; or are not fully cooperating or working as part of a team which is essential in emergency operations. A person found to have drug or alcohol problems which affects their capacity to perform their duties might also not be considered ‘fit and proper’ for continued brigade membership.

Section 10 – Review of decisions relating to membership

A person may apply to the Minister for review of the Minister’s decision to:

• refuse to include a person’s name on a brigade register under subsection 7(2), or
• remove a person’s name from a brigade register. under paragraphs 9(2)(b), (c), (d) or (e).

An application must be in writing, within 21 days of the decision and set out the reasons for seeking the review. Upon receiving an application, the Minister must appoint a review officer who is an officer of the NSW Rural Fire Service (NSWRFS) who holds the rank of Assistant Commissioner or above. Where a person applies for a review, their name must not be removed from the register until the application is decided by the review officer.

After considering all relevant information available to them, the review officer must either: confirm the Minister’s decision; include the applicant’s name on the brigade register (for a review of a decision under subsection 7(2)); or decide to retain the applicant’s name on the brigade register (for a review of a decision under paragraph 9(2)(b), (c), (d) or (e)).

The review officer must notify the applicant, in writing, of the review officer’s decision and the reasons for the decision.

Section 11 – Disciplinary action

This section prescribes the process for disciplinary action against a member of a rural fire brigade. This section also prescribes when an appropriate disciplinary authority may take disciplinary action against a member of a rural fire brigade, and what disciplinary action may be taken.

A rural fire brigade member commits a breach of discipline if they:

• contravene the Ordinance or a provision in the Rules
• are negligent, careless, inefficient or incompetent in discharging their duties; or
• fail to comply with a relevant service standard or a condition of their membership.

The Minister may appoint an officer of the NSWRFS at or above the rank of Superintendent to be the appropriate disciplinary authority for such an alleged breach of discipline. Alternatively, the appropriate disciplinary authority may be a disciplinary panel constituted as set out in the Service Standards. The Service Standards may also set out procedures for dealing with alleged disciplinary breaches. Applicable Service Standards are made by the NSW RFS Commissioner and can be found at https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards. All Service Standards are relevant when considering whether a member has failed to comply with a Service Standard.

When a member is found to have committed a disciplinary breach, the disciplinary authority may reprimand the member, suspend the member from service, recommend the Minister demote the member, disqualify the member from holding a rank in the rural fire brigade, or remove the member’s name from the JBT rural fire brigade register.

Any disciplinary action taken under section 11 would follow a documented process, currently detailed in Service Standard 1.1.2 Discipline. This Service Standard includes standard operating procedures establishing disciplinary panels, investigating allegations, disciplinary hearings and appeal procedures. A guide on natural justice accompanies this Service Standard and explains the hearing rule and the bias rule.

This Service Standard and related procedures and guides afford procedural fairness for the member including: a hearing appropriate to the circumstances; a hearing before a decision; full disclosure before the decision; a reasonable opportunity for the member to respond; genuine consideration of any submission by the member; the opportunity to appeal; and the avoidance of actual or apprehended bias.

The terms ‘careless’ and ‘inefficient’ are not further defined by the instrument or Ordinance or Service Standards, nor are they defined in the related NSW Act or Regulation where they are also used. These words are read with their ordinary meaning in line with the principles of statutory interpretation, and are read in context of the full phrase in which they appear in the Rules.

While rare, negligent, careless, inefficient or incompetent conduct may affect the operational capability of the RFS and the public’s confidence in the RFS. Non-exhaustive examples of conduct included within “negligent, careless, inefficient or incompetent” conduct may include:

• Where a member performs a task contrary to standard operating procedure, accepted practice or reasonable direction which could reasonably or did result in injury or damage.

• Where a member does not apply at least the minimum level of reasonable practice to the execution of their duties. Such examples may include where a member does not call for additional firefighting resources to combat a fire, while knowing (from experience and training) or it being reasonable to expect additional resources would be required to attempt to protect life, property and the environment.

Discipline for negligent, careless, inefficient or incompetent conduct may be more applicable to senior RFS members who voluntarily assume higher levels of responsibility and by virtue of their position and higher level of training are responsible for large groups of other volunteers during emergency operations or make decisions which may have major impacts on communities and the individuals who live within them.

Section 12 – Appeals concerning disciplinary action 

This section prescribes the process for appealing decisions or disciplinary actions taken under the Rules. Before taking disciplinary action under section 11, the disciplinary authority must investigate the alleged breach and give the member at least 14 days’ written notice of the investigation and the proposed action to be taken. The person may appeal to the Minister against the findings or the proposed action. On appeal, the Minister may confirm the disciplinary authority’s decision or determine that no action, or some other action, be taken against the member.

Section 13 – Incident reports

This section prescribes that if a rural fire brigade attends a fire, incident or other emergency, the officer in charge must ensure that the Minister receives a written report on the fire, incident or emergency. The Service Standards may specify the time period for providing the report and its content. The applicable Service Standards made by the NSW RFS Commissioner can be found at https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards.

Brigades are provided templates for the purpose of documenting incidents under section 13 and these contain fields to capture information relating to the incident. This may include matters such as the date, time and place of the incident, the type of incident, the action taken, particulars of fire-fighting appliances used and names of crew member attending the scene and remaining at the station.

Incident reports may include personal information such as the names of fire service members and the name and contact details of an informant where an incident is reported through Triple Zero (where information is collected through the RFS operational call centre). 

Service Standards currently prescribing how the brigade members collect, handle, retain, disclose, assess and use personal information currently include:

• 1.1.14 Personal Information and Privacy;
• 1.1.14A Privacy Management Plan; and
• 1.1.14B Data Breach Response Plan.

In addition, the Commonwealth Privacy Act 1988 applies to information collected under section 13 of the Rules, as the Minister, the Department and the JBT RFS are ‘agencies’ for the purposes of that Act. Further legislative safeguards also apply including the Australian Privacy Principles.

Part 3 – Fire Management Committee

Section 14 – Procedure for meetings of the Fire Management Committee

This section provides that the Fire Management Committee (FMC) will determine how and when meetings will be called, as well as how they will be conducted. 

Section 15 – Chair of the Fire Management Committee

This section provides the chair presides at meetings of the FMC. If the chair is absent, another member can be elected to chair the meeting.

Under the Ordinance, the Department’s nominated representative is the chair of the FMC.

Part 4 – Notices

Section 16 – Public notice and display of draft bush fire risk management plan

This section prescribes that the FMC must publicly display a draft bush fire risk management plan, together with any other material that assists with understanding the draft plan, for at least 42 days. Interested persons may make submissions on the draft plan during that period.

Section 17 – Notice for bush fire hazard reduction work

This section requires that where, under subsection 58(3) of the Ordinance, hazard reduction work is to be undertaken on land located within eight kilometres of Commonwealth land, a copy of the hazard reduction notice must be given to an officer of the responsible Commonwealth authority. The notice must be given to that officer within 24 hours of it being given to the occupier or owner of the land to which the notice relates.

Section 18 – Notice if Minister is to carry out bush fire hazard reduction work

This section requires the Minister to notify an officer an authority responsible for Commonwealth land if, under subsection 59(1) of the Ordinance (where there has been non‑compliance with a notice to undertake hazard reduction work), the Minister intends to undertake bush fire hazard reduction work on land within eight kilometres of Commonwealth land.

Section 19 – Notice of issue of fire permit

Under section 82 of the Ordinance, if the Minister issues a fire permit to light a fire on prescribed land, the Minister must give notice to the prescribed person or body. Under section 19 of the Rules, Commonwealth land is prescribed land and the prescribed body is the authority responsible for the Commonwealth land.

Section 20 – Giving of notices

This section sets out the ways in which notices and directions required or permitted to be served on a person must be served. This includes:

• Delivering it to the person personally.
• Delivering it to the person’s business or residence and leaving it with a person aged over 14 residing or working at the premises.
• Posting it by prepaid letter to the person’s last known place of residence, business or post office box.
• Faxing it to a number given by the person.
• Emailing it to an email address given by the person.
• Fixing it to a conspicuous part of land or building owned or occupied by the person.
• Attaching the notice or direction to the vehicle to which the notice relates if relevant.

The notice or direction does not need to name the person but can be addressed to ‘occupier’ or ‘owner’.

If the person to be served appears to be absent from the JBT, it may be served on the person’s agent personally, to their residence or place of business, by fax or email. If the land, building or premises of the person to be served are unoccupied and the owner’s address or place of residence is not known, notice may be served by publishing an advertisement in a newspaper circulating in the JBT.

Part 5 – Miscellaneous

Section 21 – Bravery and other awards

This section requires the Minister to keep a register of the name of each member of the Rural Fire Service who is given a commendation or award for long service, bravery or other forms of meritorious service and details of the commendation or award given to the member.

The Service Standards, the Privacy Act 1988 and Privacy Principles also apply to information collected and retained in maintaining this Register.

Section 22 – Voluntary work by rural fire brigades

Section 27 of the Ordinance allows the rural fire brigades, on consent from the Minister, to voluntarily cooperate with a prescribed public authority in undertaking prescribed functions.  Section 22 of the Rules prescribes the functions where a rural fire brigade may assist public authorities either within or outside the JBT. These are:

• functions that may be exercised under the Jervis Bay Territory Emergency Management Ordinance 2015
• a function that may be exercised by a public authority in relation to the prevention and suppression of bush or other fires
• cooperating with the Commissioner of Fire and Rescue NSW in relation to hazardous materials and similar matters or in assisting with an incident or emergency
• assisting the Australian Federal Police in relation to traffic control by a police officer or in assisting with an incident or emergency
• cooperating with the Ambulance Service of NSW in relation to patient care and similar matters; and
• assisting the Commissioner of the NSW State Emergency Service in relation to an incident or emergency.

Subsection 22(2) of the Rules prescribes public authorities as the Minister, the Commissioner of Fire and Rescue NSW, the NSW State Emergency Service and emergency service organisations as defined in section 4 of the Jervis Bay Territory Emergency Management Ordinance 2015.

Section 23 – Definition of managed land

This section prescribes the types of land that are defined as ‘managed land’ in section 6 (definitions section) of the Ordinance.

Section 24 – Conditions of fire permit

This section prescribes the conditions for a fire permit authorising the lighting of a fire on land. These are:

• lighting the fire must be consistent with the bush fire risk management plan; and
• at least one person must be present from the time the fire is lit until it is extinguished.

Schedule 1 - Repeals

The Schedule repeals the Jervis Bay Territory Rural Fires Rule 2014 following commencement of the Rules on 1 October 2024.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Jervis Bay Territory Rural Fires Rules 2024

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Background

The Jervis Bay Territory Rural Fires Rules 2024 (the Rules) is made under subsection 98(1) of the Jervis Bay Territory Rural Fires Ordinance 2014 (the Ordinance).

Section 98 of the Ordinance gives the Minister the power to make rules in relation to the issuing of fire permits, the classification of substances as combustible, the operation of committees, the service of notices or directions under the Ordinance, the conduct and discipline of members of the Rural Fire Service, and the operations of rural fire brigades.

The Ordinance and Rules together provide the legislative framework for fire management services to the Jervis Bay Territory (JBT). The Ordinance establishes the JBT Rural Fire Service, the JBT Fire Management Committee (FMC) and deals with other matters relating to bushfire prevention, such as preparation of JBT Bush Fire Management Plans and issuing of notices and fire permits.

Due to the cross-border delivery of fire services from New South Wales (NSW) to the JBT, the Ordinance and Rules are based on the NSW Rural Fires Act 1997 and Rural Fires Regulations 2022, modified to reflect the JBT’s jurisdictional and administrative circumstances.

For practical reasons and to ensure consistency across jurisdictions in responding to emergencies, the Commonwealth engages the NSW Rural Fire Service to provide day-to-day management of the JBT Rural Fire Service and operational support in relation to fire management in the JBT.

The JBT Rural Fire Service is aligned as far as practical, with the services provided by the NSW Rural Fire Service in the Shoalhaven Rural Fire District. Members of the JBT Rural Fire Service are all volunteers and JBT brigades are part of a local NSW group in the Shoalhaven district.

The Ordinance and the Rules allow for the making of Service Standards from time to time. The authority to make Service Standards has been delegated by the Minister to the Commissioner of the NSW RFS and is covered by the agreement between the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the Department) and NSWRFS.

Service Standards are policy documents that set out the policies and procedures to be followed by Rural Fire Service members in connection with the operation, management and control of the service.

As at the date of publishing this Replacement Explanatory Statement, Service Standards used as operational policies by the JBT RFS can be found on the NSWRFS website at https://www.rfs.nsw.gov.au/resources/publications/corporate-governance-and-planning/service-standards.

Overview of the Instrument

The Jervis Bay Territory Rural Fires Rules 2024 expand on and prescribe certain matters permitted under the Ordinance in relation to the JBT Rural Fire Service and fire management in the JBT. The Rules are largely procedural or administrative in nature, dealing with membership of fire brigades, administration of the JBT FMC and matters relating to notices and directions given under the Ordinance.

The aim of the overarching framework provided by the Ordinance and the Rules is the prevention, mitigation and suppression of bush and other fires in the Territory; the coordination of bush firefighting and bush fire prevention throughout the Territory; the protection of persons from injury or death, and property from damage, arising from fires; and the protection of the environment.

The Rules:

The Rules do not create offences or civil penalties. They do not provide powers of arrest or detention, or entry, search or seizure.

Human rights implications

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

This Disallowable Legislative Instrument potentially engages the following rights or freedoms:

• The right to work and rights in work as contained in articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
• The right to Privacy and Reputation under article 17 of the International Covenant on Civil and Political Rights (ICCPR).
• The rights of people with disability in the Convention on the Rights of Persons with Disabilities (CRPD).

The right to just and favourable conditions of work

Under section 9 of the Rules, a person may be removed from brigade membership if the person:

(a)   is found to have committed a breach of discipline under section 11; or

(b)   becomes mentally incapacitated; or

(c)   is convicted in the Territory of an offence punishable by imprisonment for 12 months or more; or

(d)   is convicted outside the Territory of an offence that, if committed in the Territory, would be an offence punishable by imprisonment for 12 months or more; or

(e)   in the Minister’s opinion, is no longer a fit and proper person to be a member of the rural fire brigade.

While members are volunteers and not remunerated, this may engage to the right to just and favourable conditions of work in Article 7. Under Article 7(b) this includes that workers be able to enjoy a safe and healthy workplace.

Under subsection 9(4) of the Rules, the Minister must notify a member before removing them from a brigade and the member has the right to review of the decision under section 10.

If the person is to be removed for a breach of discipline, the process is set out in section 11 and the relevant Service Standards.

Given the nature of their duty is to serve and protect the community, brigade members must be trusted individuals with the requisite qualities, knowledge, skills and training to instil confidence in the community and fellow brigade members. Any limitation of these worker rights by the circumstances for possible removal is justified by the broader policy need for the brigade to hold community trust to deliver their functions, and appeal rights available.

The rule will promote the right to favourable conditions of work as opportunities to remove members under certain conditions above will bolster the cohesiveness of brigade relations and reputation and ensure the brigade continues to represent its core values of service to the community. They also promote the right of fellow brigade members to enjoy a safe and healthy workplace.

The rule will promote the right to just conditions of work as there are robust avenues for appeal available for workers who may be subject to removal under section 9.

Under subsection 9(4) of the Rules, the Minister must notify a member before removing them from a brigade and the member has the right to review of the decision under section 10. If the person is to be removed for a breach of discipline, the process is set out in section 11 and the relevant Service Standards.

The rule is considered compatible with human rights given the purpose and context of the Rules and the safeguards for individuals impacted by it.

The right of persons with disability

The Minister’s ability to remove a person from a brigade under paragraph 9(2)(b) of the Rules, if they become lacking in mental capacity may engage the rights of people with disability such as the right to participate in all aspects of life, including vocational and in this context, volunteering (for example Articles 5, 9(1), 19 and 26(1)).

As brigade members operate in emergency situations, it is essential that they have the mental and physical capability to undertake the roles and duties to which they are assigned. This is both for their protection and that of the community. If a brigade member is found to have become incapable of performing the inherent requirements of their role and performing their duties safely, the Minister has the discretion to remove that member but is not required to do so.

Engagement in the fire brigade is governed by workplace health and safety legislation as well as anti-discrimination legislation, disability legislation, Service Standards (such as Service Standard 1.1.42 Respectful and Inclusive Workplace) and standard operating policies. These ensure the RFS is a safe and inclusive workplace and that processes are in place to guard against and address bully, harassment and discrimination and workplace injury. Disability and Mental Health employment strategies developed by the NSWRFS are also applicable to JBT RFS members.

In applying and complying with these policies and legislative requirements, to the extent possible, consideration would first be given to what reasonable adjustments can be made to the person’s duties to enable them to continue in their role. Depending on the particular facts and circumstances of the person’s incapacity, rather than removal from the brigade, the individual might be offered or assigned to different duties.

The person must be notified of any intention to remove them from the brigade and has review rights. State and Commonwealth legislation as well as RFS service standards, policies, procedures and other employment strategies also apply to protect the person’s rights.

Given the discretionary nature of the Rule, the available safeguards to the individual’s rights and the need to keep the community and other brigade members safe, the Rules are considered to be compatible with this human right. Any limitation on this human right is considered reasonable, necessary and proportionate.

The right to privacy and reputation

Brigade registers and registers for recording details of awards received by members may engage the right relating to privacy and reputation under Article 17 of the ICCPR. These registers are intended to operate as an administrative record and collection and use of the information is governed by privacy protocols including NSWRFS Service Standards and the Commonwealth Privacy Act 1988.

Details of incidents such as fires are captured in incident reports and these may include personal information such as the name of the person who reported the incident and the brigade members who attended. Templates completed for this purpose ensure that only necessary information is captured. Collection and use of the information is governed by privacy protocols including NSWRFS Service Standards and the Commonwealth Privacy Act 1988.

Service Standards prescribing how the brigade members collect, handle, retain, disclose, assess and use personal information currently include:

• 1.1.14 Personal Information and Privacy;
• 1.1.14A Privacy Management Plan; and
• 1.1.14B Data Breach Response Plan.

This framework ensures appropriate safeguards are in place to ensure the information collected is necessary and appropriate, is only used for its intended purpose and is handled and stored in a manner that protects the person’s information. These ensure the information collected is not an arbitrary or unlawful interference with a person’s rights. The Rules are considered to be compatible with this human right.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.