Jervis Bay Territory Rural Fires Rules 2024 - New matters [2024] AUSStaCSDLM 19 (17 May 2024)

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Chapter 1 :

New and ongoing matters

1.1 This Chapter details the committee's significant new and ongoing scrutiny concerns in legislative instruments relating to the committee's technical legislative scrutiny principles in Senate standing order 23(3).

New matters

1.2 The committee has identified significant technical scrutiny concerns in relation to the instrument listed below.

Jervis Bay Territory Rural Fires Rules 2024^[1]

FRL No.	F2024L00347
Purpose	The purpose of the instrument is to make rules, as permitted by the Jervis Bay Territory Rural Fires Ordinance 2014, to provide effective and efficient fire management services to the Jervis Bay Territory. The instrument replaces the Jervis Bay Territory Rural Fires Rule 2014 which sunsets on 1 October 2024.
Authorising legislation	Jervis Bay Territory Rural Fires Ordinance 2014
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Disallowance	15 sitting days after tabling (tabled in the Senate on 21 March 2024). Notice of motion to disallow must be given by 12 August 2024.

Overview

1.3 The Jervis Bay Territory Rural Fires Rules 2024 (the instrument) are made under subsection 98(1) of the Jervis Bay Territory Rural Fires Ordinance 2014 (the Ordinance), to provide fire management services to the Jervis Bay Territory (JBT). 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 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.

1.4 Subsection 98(1) of the Ordinance enables the minister 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 (RFS), and the operations of rural fire brigades.

Scrutiny concerns

Conferral of discretionary powers;^[2] adequacy of explanatory materials^[3]

1.5 Senate standing order 23(3)(c) requires the committee to scrutinise each instrument as to whether it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers. This includes where instruments confer broad discretionary powers on a person. In addition, Senate standing order 23(3)(g) requires the committee to scrutinise each instrument as to whether its accompanying explanatory statement provides sufficient information to gain a clear understanding of the instrument.

1.6 The committee considers that instruments conferring broad discretionary powers on a person should set out the factors which the person must consider in exercising the discretion. The explanatory statement should also address the purpose and scope of the discretion, why it is necessary, and explain who will be exercising the discretion, including whether they possess the appropriate qualifications and necessary skills. The committee also expects the explanatory statement to outline the nature and source of any relevant limitations on the exercise of the powers.

1.7 The instrument contains a number of broad discretionary provisions, but neither the instrument nor its explanatory statement provides an adequate explanation of the factors that may be considered in exercising the discretion.

1.8 Specifically, subsection 7(2) enables the minister to refuse to list a person's name on a brigade register if, 'in the Minister's opinion' the person is not a 'fit and proper person' to be a member. The explanatory statement provides that, 'in practice', this assessment will be made based on the person's application and the outcome of 'administrative processes such as a Police Check'. However, it is unclear to the committee what specific factors in the application or other documents the minister will take into account in forming this opinion. It is also unclear what other 'administrative processes' might include and the weight to be given to each factor that is taken into account in forming the relevant opinion.

1.9 Similarly, paragraph 9(2)(e) enables the minister to remove a person's name from the brigade register if 'in the Minister's opinion' they are no longer a 'fit and proper person' to be a member of the brigade. In contrast with a refusal to list a person's name on the register on the basis that they are 'not' a fit and proper person, subsection 9(3) provides that 'without limiting paragraph (2)(e)', the minister may form an opinion that a person is 'no longer' a fit and proper person to be a member if they (a) have not been an active member for at least 12 months, or (b) have not paid their annual subscription in accordance with the brigade's constitution. However, while subsection 9(3) provides a non-exhaustive list of factors that may be taken into account, it is not clear from either the instrument or its explanatory statement what other factors may be taken into account in exercising this discretion. In this regard, the explanatory statement restates the grounds for removal under subsection 9(2) of the instrument, which include where, in the Minister's opinion the person is no longer a fit and proper person to be a rural fire brigade member.

1.10 Finally, subsection 7(4) provides that a person's listing on a brigade register is subject to 'such conditions as may be imposed by the Minister'. Subparagraph 11(4)(c)(iv) allows the 'appropriate disciplinary authority' to recommend that the minister impose conditions under subsection 7(4) in relation to a breach of discipline. However, it is unclear from the instrument or its explanatory statement what such conditions, including in relation to a breach of discipline, may include or what specific factors the minister would take into account in deciding whether to impose any such conditions.

1.11 In light of the above, the committee requests the minister’s advice as to:

• why it is considered necessary and appropriate for the minister to have broad discretionary powers under the instrument, including in particular those provided under subsections 7(2), 7(4) and 9(2);

• whether further detail can be provided regarding the factors the minister may take into account in determining that a person is not, or is no longer, a 'fit and proper person' under subsections 7(2) and 9(2) of the instrument and the weight given to each of those factors; and

• what factors the minister may take into account in deciding whether to impose any conditions on a person's listing on a brigade register under section 7(4) and what such conditions are likely to include.

Compliance with the Legislation Act 2003 - incorporation; ^[4] incorporated materials freely accessible;^[5] adequacy of explanatory materials^[6]

1.12 Senate standing order 23(3)(a) requires the committee to scrutinise each instrument as to whether it is in accordance with its enabling Act and otherwise complies with all legislative requirements. This includes the requirement in paragraph 15J(2)(c) of the Legislation Act 2003 (the Legislation Act) that the explanatory statement to an instrument that incorporates a document describe that document, the manner in which it is incorporated and how it may be obtained. In addition, under Senate standing order 23(3)(f), the committee expects that any incorporated documents may be freely accessed and used.

1.13 The instrument makes provision in relation to 'Service Standards' and 'relevant Service Standards'; however, it is unclear whether and which specific standards have been incorporated by reference, or where they may be freely accessed and used.

1.14 Notably, subsection 6(3) requires that in determining whether the constitution for a rural fire brigade should be amended, members must take into consideration 'any relevant Service Standards'. Under subsection 8(2), the minister may remove a person's name from the register if, at the end of their probationary period, they have not achieved a 'satisfactory level of competency required by the Service Standards'. Under paragraph 11(1)(c), it is a breach of discipline if a member fails to comply with 'the Service Standards' and, under paragraph 11(3)(a), the appropriate disciplinary authority may take disciplinary action if ‘an alleged breach of discipline is dealt with in accordance with the procedure set out in the Service Standards’. In addition, the 'appropriate disciplinary authority' is defined in paragraph 11(5)(b) with reference to ‘the procedure set out in the Service Standards’. Finally, under subsection 13(2), written reports of relevant fires, incidents or emergencies must be given to the minister within the time required by, and include any matters required to be covered by, the Service Standards.

1.15 The 'Service Standards' are defined under section 11 of the Ordinance as the written Service Standards in connection with operation, management and control of the RFS that may be issued by the minister, as they exist from time to time.^[7] Relevantly, paragraph 14(1)(b) of the Legislation Act provides that if enabling legislation authorises or requires provision to be made in relation to any matter by a legislative instrument, the instrument may (unless a contrary intention appears) make provision in relation to that matter by applying, adopting or incorporating any matter contained in an instrument or other writing but may not do so from time to time, unless the contrary intention appears (subsection 14(2)). In this case, the explanatory statement to the instrument indicates that, in practice, the Service Standards applying to New South Wales Rural Fire Service members apply to JBT Rural Fire Service members.

1.16 However, while section 11 of the Ordinance appears to enable the incorporation into the instrument of any such standards by reference, as they exist from time to time, it is unclear whether the Service Standards applying to the New South Wales Rural Fire Service standards have been formally incorporated under this provision. In addition, neither the instrument nor the explanatory statement describes the specific standard/s referred to in each of the above-noted provisions, their manner of incorporation, or where they can be freely accessed and used.

1.16

1.17 In light of the above, the committee requests the minister’s advice as to:

• whether the Service Standards defined under the Ordinance have been incorporated into the instrument; and, if so,

• which specific Standard or Standards are incorporated in relation to subsection 6(3), subsection 8(2), section 11 and subsection 13(2) of the instrument; and

• whether the instrument's explanatory statement can be amended to specify the specific Standards that have been incorporated under each of the above provisions, their manner of incorporation and where they can be freely accessed and used.

Privacy^[8]

1.18 Senate standing order 23(3)(h) requires the committee to scrutinise each instrument as to whether it trespasses unduly on personal rights and liberties, including the right to privacy.

1.19 The committee considers that provisions which enable the collection, use and disclosure of personal information may trespass on an individual's right to privacy, and should generally be included in primary, rather than delegated, legislation. Where an instrument nevertheless contains such provisions, the explanatory statement should explain the nature and scope of the provisions (including the nature and extent of the information that may be disclosed and the persons and/or entities to whom disclosure is permitted). The explanatory statement should also address why the provisions are considered necessary and appropriate, what safeguards are in place to protect the personal information, and whether these are set out in law or in policy (including whether the Privacy Act 1988 (the Privacy Act) applies).

1.20 Under section 13 of the instrument, 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. Section 21 of the instrument also requires the minister to keep a register of the name of each member of the RFS who is given a commendation or award for long service, bravery or other forms of meritorious service and details of the commendation or award.

1.21 However, the explanatory statement does not explain the nature and scope of information that may be collected in a report under section 13, including whether it might contain personal information. Nor does it explain whether and how any personal information collected under sections 13 or 21 may be used or disclosed, or whether there are any safeguards in place to protect the use, collection or disclosure of such personal information.

1.22 In light of the above, the committee requests the minister’s advice as to:

• the nature and scope of the information that may be collected, used or disclosed under section 13 of the instrument and whether this is likely to include personal information; and

• whether any safeguards apply to protect any personal information collected, used or disclosed under either section 13 or section 21 of the instrument and whether these are set out in law or policy, including whether the Privacy Act applies.

Procedural fairness;^[9] clarity of drafting;^[10] adequacy of explanatory materials^[11]

1.23 Senate standing order 23(3)(h) requires the committee to scrutinise each legislative instrument as to whether it trespasses unduly on personal rights and liberties, including whether the instrument abrogates procedural fairness. In relation to procedural fairness, the common law right to procedural fairness is underpinned by the fair hearing rule and the rule against bias. The fair hearing rule requires a person who may be adversely affected by a decision to be given an adequate opportunity to state their case before the decision is made.

1.24 Further, Senate standing order 23(3)(g) requires the committee to scrutinise each instrument as to whether its explanatory statement provides sufficient information to gain a clear understanding of the instrument. Senate standing order 23(3)(e) requires the committee to scrutinise each instrument as to whether its drafting contains an error or is unclear.

1.25 Section 11 enables the 'appropriate disciplinary authority' to take disciplinary action, as set out in subsection 11(4), if a member of a rural fire brigade commits a breach of discipline on the grounds set out in subsection 11(1). One of these grounds (paragraph 11(1)(b)) relates to a member who is 'negligent, careless, inefficient or incompetent' in the discharge of their duties. Subsection 12(1) requires that, before taking disciplinary action, the appropriate disciplinary authority investigates the alleged breach of discipline and gives the member at least 14 days' notice of their findings and proposed disciplinary action. Although subsection 12(2) enables the member to appeal, within 14 days of receiving the notice, the findings of the authority or any proposed disciplinary action, it is not clear on the face of the instrument or the explanatory statement whether the member has an adequate opportunity to state their case prior to the appropriate disciplinary authority making a decision to take disciplinary action. The committee also notes the limited 14-day time frame for making an appeal.

1.26 Where an instrument limits or otherwise does not provide for procedural fairness in relation to a decision adversely affecting a person, the committee expects its explanatory statement to provide a comprehensive justification for the relevant limitation or exclusion. In this regard, the instrument and the explanatory statement do not clarify whether procedural fairness is provided for in relation to decisions to take disciplinary action under section 11 or seek to justify its exclusion. This is particularly important, noting that disciplinary action – such as the suspension, demotion or removal of a member from the brigade register – will adversely affect the member.

1.27 In addition, it is unclear what is meant by the terms 'careless' and 'inefficient' in paragraph 11(1)(b). The committee notes the importance of enabling individuals to understand the law to which they are subject, particularly where disciplinary action may affect rights, obligations or interests.

1.28 In light of the above, the committee requests the minister’s advice as to:

• whether procedural fairness is provided for in relation to decisions to take disciplinary action under section 11 of the instrument and, if not, why its exclusion is considered necessary and appropriate;

• if procedural fairness is not provided for, whether any additional safeguards apply, noting the limited 14 day period for seeking appeal; and

• what is meant by the terms 'careless' and 'inefficient' under paragraph 11(1)(b) of the instrument and whether the instrument or the explanatory statement can be amended to define these terms.

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^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Delegated Legislation, Jervis Bay Territory Rural Fires Rules 2024, Delegated Legislation Monitor 5 of 2024; [2024] AUSStaCSDLM 19.

^[2] Senate standing order 23(3)(c).

^[3] Senate standing order 23(3)(g).

^[4] Senate standing order 23(3)(a).

^[5] Senate standing order 23(3)(f).

^[6] Senate standing order 23(3)(g).

^[7] See a note to section 4 of the Jervis Bay Territory Rural Fires Rules 2024, and section 6 of the Jervis Bay Territory Rural Fires Ordinance 2014.

^[8] Senate standing order 23(3)(h).

^[9] Senate standing order 23(3)(h).

^[10] Senate standing order 23(3)(e).

^[11] Senate standing order 23(3)(g).