The Law?


A large body of evidence shows that hazard reduction will prevent intense, unstoppable fires[iv]. It is reckless indifference when it is certain that intense, unstoppable fires from record fuel loads will cause death, injury or property or environmental damage[v]. For this reason, the NSW Rural Fire Service Commissioners’ history of claiming NSW has adequate hazard reduction[vi] raises questions. These questions arise from the law of reckless indifference under Section 18 of the Crimes Act 1900 (NSW), Section 3A of the Crimes Act 1938 (Vic) [vii] and Section of the Criminal Code 2002 (ACT)[viii]. Reckless indifference is not a mitigating factor in deciding the gravity of a homicide[ix].

In accordance with the common law principles of reckless indifference, The Rural Fires Act 1997 (NSW) states it aims to protect people and property from fire[x]. The NSW Rural Fires Act 1997 describes the RFS Commissioner’s role and responsibilities.

S.71.1 of the Rural Fires Act 1997 authorises the Commissioner to hazard reduce, stating the Commissioner may carry out bushfire hazard reduction on land failing to comply with a bushfire management plan.

Sections 65, 66, 67 and 74E of the Rural Fires Act describe how the Commissioner should manage bushfires:

1. The Commissioner is responsible for investigating the validity of written complaints of bushfire hazards in national parks and other government or private land.

2. The RFS is also responsible for monitoring non-compliance with bushfire management plans.

3. The RFS is responsible for enforcing landowners' requirements to hazard reduce either: to comply with specified bushfire management plans or after the Commissioner validates written complaints of a bushfire hazard.

4. Hazard management officers, RFS brigade officers, bushfire coordinating committee nominees, bushfire management plan authorities or authorized fire authority officers have the authority to hazard reduce.

S.67.8 imposes penalties of 50 units or 12 months in gaol for non-compliance with hazard reduction notices that a landowner or authority must hazard reduce within a specified timeframe of seven days or more. One penalty unit is a $110 fine in NSW.

The last time the Federal Government attempted to force bushfire services to comply with well proven science was after the 2003/4 NSW and ACT fires. A swathe of green rather than red tape made, and still makes it almost impossible to hazard reduce. The head of an inquiry into the ACT fires, former MP, Mr Gary Nairn threatened to cut off a bushfire service’s funding if it did not begin to adequately hazard reduce. Another bushfire season loomed and several bushfire services ignored Mr Nairn by refusing to hazard reduce. It was checkmate, Mr Nairn had to untie the purse strings or Australia faced a bushfire season with no protection, even if the protection ignored science that showed record fuel loads would worsen firestorms.

The current firestorm trend also raises questions of compliance with the Environment Protection and Biodiversity Conservation Act 1999[xi]. The Commonwealth Government is responsible for protecting areas with environmental and Heritage significance under this Act[xii]. This Act also gives the Commonwealth the power to protect threatened species, ecological communities and national heritage values.