22 October, 2013 8:17AM AEDT

Craig Lapsley: Why Victorian firefighters can't force evacuations during bushfire

Victorian Fire Services Commissioner Craig Lapsley says the policies implemented by NSW during a state of emergency don't take into account the issue of pecuniary interest. Hear why Victorian firefighters can't force people to leave properties threatened by bushfire.

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NSW Premier Barry O'Farrell declared a state of emergency across NSW on Sunday giving emergency services the power to arrest people who refuse to leave their property as bushfire conditions worsen in NSW.

As of Monday morning, a total of 56 bushfires were burning across the state and 12 are out of control.

The NSW Rural Fire Service fears that three large fires burning in the Blue Mountains at Lithgow, Springwood and Mount Victoria could merge.

Lapsley says the difference of models between NSW and Victoria stems from past legislation.

"It goes back decades in legislation where NSW have always had this, they haven't necessarily built into the legislation the issue of pecuniary interest, now we have in all of our legislation where people have the right to stay even after being strongly recommended by police or fire to leave."

Lapsley says the Victorian model displays a different mindset where it is the individual's responsibilty as to whether they evacuate or defend their property during an emergency.

"It's also interesting Jon, in the declaration of NSW it empowers down to the firefighter on the truck to make that observation and start to tell people not to be there, we haven't got it to that extent here, it would be very much the police, the police would lead that and have the powers to do so."

Lapsley says the power to arrest in Victoria would only arise from a situation prompted by an event of civil unrest.

"It certainly wouldn't be delegated down to the firefighter and the power to arrest would be something...the community member took other steps to be abusive, or destructive or showed some level of physical towards police, they might use other powers to then say it's time for you to leave and could arrest, but it's not because they've just simply said, I've got a pecuniary interest and I need to protect my home."

Lapsley says forcing mass evacuations has the potential to create complex situations for fire authority management.

"Once we move people, the onslaught of fire is of a moderate onslaught, the likelihood of losing properties is significantly increased, so if people aren't there to do, if they are well prepared and capable to do so, means we have got the potential to lose thousands and thousands of houses by that philosophy, it's a very difficult one but we should always put at the front of it, primacy of life."

ABC's Jon Faine spoke to Craig Lapsley.