Danger season: why NSW leads Australia in bushfire laws and policies

Dr Phillipa McCormack is a Fellow at the Environment Institute at Adelaide Law School and Director of the National Environmental Law Association. She tells LSJ that NSW is ahead of other Australian states and territories, and international jurisdictions, in terms of laws and policies to address fire risk, mitigation, prevention and emergency response.

LSJ spoke to Dr McCormack about why NSW is a leader in this area, why this is imperative at a time when climate change causes fires to be more frequent, intense and long-lasting, and where changes could tighten the holistic approach to fire management in NSW.

The primary legislation in discussion is the Rural Fires Act 1997 (NSW). The objects of the Act are to provide for “the prevention, mitigation and suppression of bush and other fires in local government areas (or parts of areas) and other parts of the State constituted as rural fire districts”, and “for the co-ordination of bush fire fighting and bush fire prevention throughout the State”, “the protection of persons from injury or death, and property from damage, arising from fires”, and “for the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from damage arising from fires.”

During the designated Bush Fire Danger Period, any burning activities in Rural Fire districts in NSW require a fire permit from the NSW Rural Fire Service. Any burning in Fire and Rescue districts requires a permit at all times of the year.  Those who breach the Rural Fires Act 1997 through failing to apply for, and hold, a valid permit for their use of burning are liable for heavy fines and prison terms of up to a year. Additionally, persons responsible for fire can be taken to civil court by those seeking compensation for any losses sustained as a result of the fire. Of all the councils in NSW, those not requiring a permit are the rare exception (Albury City, Berrigan, Coolamon, Federation, Greater Hume, Junee, Lockhart, Snowy Valleys, and Wagga Wagga).

Bushfire Prevention

While burning typically requires a permit, clearing trees and vegetation that provide fuel for bushfires in identified bushfire prone areas is permitted without a requisite approval. This includes areas around “high risk facilities” such as residences, tourist accommodation, schools, hospitals and childcare centres. The code of practice around bushfire prevention allows for vegetation and trees within 10 metres, and undergrowth within 50 metres, of specified bushfire-prone buildings.

NSW made a submission to the independent Australian Senate Inquiry, established in January 2020 by the NSW Premier, entitled “Lessons to be learned in relation to the Australian bush fire season 2019-20”. It referred to the 2019-2020 bush fires as “unprecedented in their impact on communities in NSW and across Australia”.

NSW also participated in the Royal Commission into National Natural Disaster Arrangements (Royal Commission) following the 2020 Black Summer. As a result of the Bushfire Inquiry, NSW Parliament passed legislation to include lessons management into the formulation and evaluation of emergency management, overseen by the State Emergency Management Committee (SEMC).

Part of the NSW submission to the inquiry addressed hazard reductions, resulting in amendments to the Rural Fire Act, including improvements to risk planning, reporting and audit responsibilities around bush fire risk management planning. An initial $192 million commitment by the NSW Government, with an overall five-year funding package of $30.87 million, was put toward these recommendations. New provisions were introduced to the Rural Fire Act to streamline public authorities and private corporations to better engage with their responsibilities to reduce bush fire hazard on their land, Senior Rural Fire Service officers were empowered to serve bush fire hazard reduction notices to public and private landholders, and penalties for failure to comply were increased. Further, public landholders were newly required to rebuild or cover the cost of rebuilding boundary fencing where fencing was destroyed due to a failure to clear combustible material on their land.

Australian expert in bushfire law focuses on NSW

McCormack emphasises the complex nature of prioritising both fire safety measures along with environmental conservation, requiring local community engagement with councils and government agencies to understand their obligations in hazard prevention, and better incentives for insurers to cover preventative burning practices.

This year, McCormack received Australian Research Council (ARC) funding via the Discovery Early Career Research Award (DECRA) to undertake the meaty three-year project ‘Preparing Australia for a fiery future: Five strategies to guide law reform’.

She accedes that bushfire management is complicated, traversing laws relating to insurance, building standards, development, roads and infrastructure, wildlife conservation and biodiversity. For example, all developments on land designated as bush fire prone has a legal obligation to consider and meet the requirements of Planning for Bush Fire Protection (PBP 2019) and AS3959. In January 2020, the NSW Bushfire Inquiry recommended moving to a risk-based strategic planning approach when planning for bushfires.

Following the inquiry recommendation, Planning NSW in partnership with the RFS and NSW Reconstruction Authority, developed a draft NSW Bush Fire Policy for Land Use Planning and supporting Bush Fire Prone Land Package.  Also newly introduced is Transport for NSW’s The Bushfire Corridor Resilience Project, dedicating $19.5 million towards the State Road network as planned by the Australian Road Research Board.

Following the bushfires in Sydney in 2019 and 2020, McCormack says, “In terms of legal reforms, it has been iterative. There’s been work over time to think about how NSW, across the state, but particularly outside the city of Sydney, might better engage with private landholders to manage the risk on their own land, and to facilitate what we commonly refer to as shared responsibility. It’s a concept that comes up in the emergency and disaster risk reduction conversation from a global scale all the way down to local governments.”

In a complex legal and policy environment for government, councils, business and private landowners alike, NSW is ahead of the curve in introducing the one stop shop that provides approvals with efficiency.

“The NSW Bushfire Environmental Assessment Code is a document managed by RFS that allows people to understand if they should or should not be clearing vegetation around their homes to improve resilience in a fire situation. It’s pretty clear-cut about what you’re allowed and not allowed to do,” McCormack says.

However, NSW is not keeping up with urban development and ensuring that development and building standards anticipate the risks of fire, and ensure adequate safety measures, for the present risk and the increasing risk over coming decades.

“We don’t have clear ways to manage urban development to protect people to exposure to fire in an anticipatory way, by identifying areas that are 100 per cent out of bounds,” McCormack says.

“We’re not thinking about developments at all appropriately. When you go to build a home, you have to apply for a building permit that requires that you build to a certain standard. It does include some stuff about fire, probably not enough, but we don’t then say ‘if you’re going to build a new series of houses, you have to make sure there’s two ways in and out. You have to make sure that in the centre of the town there’s a clear park area where people can shelter.

“This suite of laws needs to be working in concert: building laws, planning laws, the native vegetation management laws, biodiversity conservation laws, tenancy arrangements, insurance arrangements… we don’t have a coherent conversation happening across those at all, and that’s really challenging to do, but in its absence, we are extremely vulnerable to big impacts from these events.”

From a legal perspective, the protection of biodiversity versus the protection of people and their homes, and agricultural land will come into conflict more often, according to McCormack.

Fear of losing control of preventative burning is a major obstacle

Californian legislation addressed people’s fear of liability for preventative burning gone wild to great effect, points out McCormack.

In California, according to the Board of Forestry and Fire Prevention, “Generally speaking, strict liability laws are the least conducive to prescribed fire and gross negligence laws are the most conducive.”

While escape rates are very low, risk is inevitable when working with fire. In California, liability coverage protects qualified practitioners, property owners, and the public from the associated financial risk. However, many practitioners on private or tribal land are unable to obtain affordable private insurance for beneficial fire operations. To encourage private insurers to recognise the benefits of preventative burning, Governor Newsom signed into law SB 926 in September 2022, which established a pilot Prescribed Fire Claims Fund to the value of $USD20 million. This legislation authorises claims covering certain losses arising from prescribed fires and cultural burning until January 2028. Administered by CAL FIRE, the Prescribed Fire Liability Claims Fund Pilot will cover losses if a prescribed or cultural burn escapes control, providing up to $2 million in coverage for prescribed fire projects led by a qualified burn boss or cultural practitioner.

McCormack says, “California has done work to restrict the liability exposure for people burning to manage a hazard and fearing that the fire will get out of control. In Australia, many people say they can’t get insurance to light a fire and that if the fire gets away from them, they’ll be liable for damage costs. That deserves to be looked at closely.”

The role of cultural fire management

Cultural burning was also highlighted as an effective tool requiring cooperation between Traditional Owners and the RFS. In 2020, the NSW Government provided $1.3 million to the Department of Planning, Industry and Environment’s Cultural Fire Management Unit to co-design a sustainable cultural fire management strategy and business model with First Nations peoples. The Rural Fires Act was amended to recognise three Aboriginal representatives appointed to the Bush Fire Coordinating Committee, to promote the integrity of cultural burning and indigenous practices.

Established in 2020, Yarrabin Fire is a leading cultural burning consultancy in the traditional Aboriginal cultural practice of burning Country. ‘Yarrabin’ is derived from a place located in Wiradjuri Country near the junction of the Cudgegong and Meroo Rivers, 35km west of Mudgee in the NSW Central Tablelands.

Den Barber tells LSJ he has been a Cultural Fire Practitioner for the past 14 years, and has performed and led more than 120 Cultural burns, workshops presentations and consultations over this time for a range of Aboriginal community groups, government agencies and private landholders.

The current problems are in terms of the public and government attitude to fire prevention, risk management, and attitude to land management more generally prompt Barber to say, “regarding fire prevention alone, I can only offer that this issue is multi layered, highly complex and is variable depending upon time and place. For example, prescribed burning or hazard reduction [activities] conducted by NSW fire agencies in Sydney face huge challenges in burning within, and surrounding, the Sydney metropolitan area.

“Issues include ensuring that fire operations do not escape containment and then impact on vast city infrastructure and properties in a heavily urbanised environment. If it’s not the impact of the actual fire itself, it will be the heavy smoke layer that results from these burns affecting not only people’s washing, but more importantly, their health. Ministers. bureaucrats and bushfire agencies face heavy backlash from the public in a ‘damned if you do, damned if you don’t’ scenario.”