NSW Bill to Implement Recommendations of NSW Independent Bushfire Inquiry

On 10 November 2020, the Bushfires Legislation Amendment Bill 2020 (NSW) (‘the Bill’) was introduced into the NSW Legislative Assembly by the Minister for Police and Emergency Services, Mr David Elliot. The Bill was passed by the Assembly on 11 November and is currently being considered by the Legislative Council.

Purpose of the Bill

The Bill is intended to enact the recommendations of the NSW Independent Bushfire Inquiry (‘the Inquiry’). The Inquiry was commissioned following the catastrophic 2019-2020 fire season. The Minister in his Second Reading Speech stated:

Simplification of Approval Processes for Vegetation Management

The Inquiry noted that landlords felt inadequately equipped to manage and prepare for bushfires because of the complexity of approval processes for vegetation management.

In response, the Bill proposes to amend the Rural Fires Act 1997 to enable owners and occupiers to clear vegetation on their property without the need for a licence, approval, consent or other authorisation under the Biodiversity Conservation Act 2016, the Environmental Planning and Assessment Act 1979 or any other Act or instrument, provided certain conditions are met.

The conditions require that vegetation clearing work is carried out:

1. Within 25 metres of their property boundary;
2. On land in a ‘rural zone’ (which is statutorily defined);
3. By or with the authority of the owner;
4. For the purposes of bushfire hazard reduction; and
5. In accordance with any rural boundary clearing code if such a code is in force.

If the Bill is assented, the Minister for Police and Emergency Services will have the power to develop rural boundary clearing codes with the agreement of the Minister for Agriculture and Western New South Wales, the Minister for Energy and Environment and the Minister for Planning and Public Spaces. Some examples of matters which rural clearing codes may address include the type of vegetation that can be cleared, the manner of clearing, the clearing of vegetation in habitats of threatened species, the management of soil erosion, and the protection of Aboriginal and other cultural heritage.

Consistency Between Public and Private Landholders

The Inquiry also noted the current double standards imposed on private and public landholders with regards to bushfire preparedness. In his Second Reading Speech, the Minister stated that the Bill will promote more consistent standards by:

1. Allowing a senior RFS officer to serve bushfire hazard reduction notices on public authorities; 
2. Introducing a penalty for public authorities and corporations for failure to comply with a bushfire hazard reduction notice of 100 penalty units, (the penalty for an individual is 50 penalty units); and
3. Providing that land cannot be excluded from statutory requirements to repair or replace dividing fences due to bushfire damage because ‘if we expect private landholders to take these actions, so too should we expect it of public landholders’.

Increased Hazard Reduction and Bushfire Preparedness

The Bill also proposes to close two issues regarding governance arrangements for hazard reduction and bushfire preparedness which were identified by the Inquiry. Firstly, under the4 current system, the Commissioner of the NSW Rural Fire Service ('the Commissioner') can review bushfire risk management plans but is limited to auditing plans of operations and fire access and fire trail plans. The Bill proposes to expand this power so the Commissioner may review bushfire management plans  generally, including their content, rather than just their implementation. 

Secondly, the current system requires bushfire hazard complaints to be directed to the Commissioner. However, the Inquiry noted that if these complaints are accidentally misdirected to other public authorities like public land managers, there is no obligation to forward these complaints to the Commissioner. The Bill proposes to close this loophole by imposing a positive obligation on public authorities in these circumstances.

Designated Industry Brigades

The Inquiry also noted that industry brigades were interested in assisting the RFS. To promote this continued cooperation, the Bill proposes to follow the Victorian model where industry brigades are incorporated into the Country Fire Authority under Victorian law. The Minister stated that Bill will provide regulation-making powers to ‘establish requirements for industry brigades, including deeming industry brigades to be rural fire brigades, as well as the functions and immunities of members of industry brigades and the delegation of functions to members of industry brigades by the commissioner.’

Other Amendments

The Bill also proposes to implement various amendments relating to biodiversity assessments. The primary intent of these amendments is to help support people attempting to rebuild bush-fire affected properties. Furthermore, several consequential amendments will be necessary for the Bill to operate, provided it receives assent.

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Bushfires Legislation Amendment Bill 2020 (NSW) and explanatory materials available from TimeBase’s LawOne Service