Following the 2013 Tasmania fires, the post event inquiry was critical of the command and control arrangements that were put in place. The final report said (p 66) “The 2009 Victorian Bushfires Royal Commission examined the role of leadership and was concerned about divided responsibility and the need to identify a single individual who had clear responsibility for the control of the response to major bushfires.” The Tasmania Special Investigator agreed and said, at p 69, “Emergencies are not the occasion for disputes or uncertainty about who is in charge of command, control or coordination to occur.”
In my last post on authorised emergency service officers, I referred to an Authorisation of Powers issued by the Commissioner of the NSW Rural Fire Service who in turn, was acting as the Minister’s delegate under the State Emergency and Rescue Management Act 1997. That got me to thinking ‘who is actually in charge of this event’?
To recap the event is the current NSW bushfire emergency. On 20 October 2013 the Premier, the Hon. Barry O’Farrell declared a State of Emergency pursuant to s 33 of the State Emergency and Rescue Management Act 1989 (NSW) (http://www.austlii.edu.au/au/legis/nsw/num_reg/searma1989odsoeirobf2013603l20o2013936.pdf). That declaration would have remained in force for 30 days, but it was in fact revoked on 30 October (http://www.austlii.edu.au/au/legis/nsw/num_reg/searma1989ordosoeirobf2013629l31o20131075.pdf).
During the period of the declaration, the Minister for Police and Emergency Services had extensive powers to direct government agencies (s 36); order evacuations and other safety measures (State Emergency and Rescue Management Act 1989 (NSW) ss 37 and 37A); enter premises (s 37B), including with the use of force (s 37E) and commandeer private property (s 38). Not surprisingly the Minister may not be able to do all those things personally so he could authorise others, in particular emergency services officers, to do those things and he could delegate his own decision making powers to others (s 10(4)). According to the authorisation issued by the RFS Commissioner the Minister had delegated his authority to the Commissioner.
So who’s in charge? The Premier has made the declaration but has no clear operational role but, as the Premier, is responsible for leading the government and its response. It is consistent with international best practice that the person making the declaration is not then empowered to exercise extraordinary emergency powers for fear that a declaration will be made for their benefit rather than the communities. It is therefore consistent with that practice that the Premier should make the declaration, but it is the Minister who is then given extraordinary emergency powers.
The Minister is responsible for ‘ensuring that adequate measures are taken by government agencies to … respond to and assist recovery from emergencies, and (b) [for] co-ordinating the activities of government agencies in taking those measures’. The Minister may have delegated his authority to the Commissioner but that does not represent a delegation of responsibility. The Minister remains responsible for ensuring that adequate measures are taken by his delegate.
The Commissioner as the delegate is also responsible for exercising the Minister’s powers to achieve those objectives. The Commissioner is also responsible for his functions under the Rural Fires Act, that is he ‘is responsible for managing and controlling the activities of the Service’. Assuming a declaration was made under s 44 of the Act (I can’t imagine that it was not, but I can’t find evidence of that declaration) the Commissioner is ‘is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State’.
At the same time, for each fire an incident controller is to be appointed (NSW State Bush Fire Plan, [60]). According to the Australian Inter-Agency Incident Management System (or AIIMS) the Incident Controller there should only be one incident controller and he or has “The ultimate responsibility for managing an incident always remains with the Controller whether or not an IMT has been established” (AIIMS, 4th ed, p 70). In my book, Emergency Law (4th ed, Federation Press, 2013) I argue:
During the 2009 Victorian Bushfires Royal Commission, the chief officer of the Country Fire Authority, the chief fire officer from the Department of Sustainability and Environment and the Chief Commissioner of Police were criticised for their failure to supervise their staff including the incident management teams. The Royal Commissioners said:
The Commission observed a disturbing tendency among senior fire agency personnel – including the Chief Officers – to consistently allocate responsibility further down the chain of command, most notably to the incident control centres.
That would be consistent with the view in AIIMS that, having appointed an incident controller it was up to that controller to exercise control over the response. The Royal Commission noted, however, that:
Although the Country Fire Authority Act 1958 vests responsibility for controlling the prevention and suppression of fires in country Victoria in the Country Fire Authority as an organisation, CFA standard operating procedures make it clear that within the agency ‘ultimate responsibility for the suppression of fires’ rests with the Chief Officer.
The right of the Chief Officer to control ‘all brigades’ is set out in statute. An incident controller has no similar, statutory authority. The incident controller is appointed by the Chief Officer to exercise the Chief Officer’s powers but such a delegation does not “amount to an abrogation of responsibility or a transfer of accountability”.
The situation is even clearer in other jurisdictions for example, in New South Wales, the State Emergency Service Act 1989 (NSW) provides that “… the Commissioner is to have overall control of operations in response to an emergency to which” the Act applies. In a bushfire it is the Commissioner, not an incident controller, who is to “take charge of bush fire fighting operations…”
It follows that absent any statutory authority, incident controllers appointed in accordance with AIIMS are subject to the direction and control of their senior officers. As employees they are subject to the reasonable direction of their employers. Further legislation that gives emergency powers to the chief officers and vests those chief officers with command of the fire brigades means that incident controllers remain subject to any direction that those senior officers may give on the exercise of the special emergency powers and authority.
It would be more accurate to say “The ultimate responsibility for managing an incident always remains with the Chief Officer/Commissioner whether or not an Incident Controller has been appointed; and an incident controller remains responsible to the Commissioner/Chief Officer for all operational decisions whether or not an IMT has been established”.
The Commissioner of Police is the State Emergency Operations Controller or SEOCON. The SEOCON is ‘responsible for controlling in accordance with this Act the response to an emergency’ but not ‘if there is a single combat agency primarily responsible under the State Emergency Management Plan for controlling the response to the emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 19). Under the NSW State Emergency Management Plan the NSW Rural Fire Service is responsible for managing a bushfire within a rural fire district and as noted the Commissioner is responsible for coordinated bushfire fighting under s 44. The SECON would not therefore exercise a controlling role unless directed to by the Minister or with the consent of the RFS Commissioner (s 19(1B)).
The ‘loose cannon’ is the police. The declaration of an emergency gave the Minister the power to exercise a variety of emergency powers including the power to evacuate. The police have those powers without the need for a declaration of a state of emergency and may exercise them on their own initiative (ie without reference to the Rural Fire Service, at local, regional or state level) (see State Emergency and Rescue Management Act 1997 (NSW) ss 60L to 61E). Those powers may be essential to ensure rapid, effective on the ground response to changing conditions, but could conflict with the ideal, in AIIMS, that the incident controller is to be in charge of local decisions such as the decision to evacuate.
Regardless of actual, on the ground experience, where communication may be difficult and responsibilities delegated, it does appear that ‘who is in charge’ was and is reasonably well answered in New South Wales. Given the declaration of the state of emergency, the person ultimately responsible for ensuring an effective response was the Minister. The person with practical responsibility, and with ultimate command responsibility was the Rural Fire Services Commissioner. The fact that the SEOCON does not have direct control responsibility unless directed to take that responsibility by the Minister, or at the request of the combat agency, means there is no room for confusion as to who is in command. This is quite different to other states where the police have more extensive command, control and/or supervision responsibility or where the provisions to transfer control from the designated combat agency to police are much more ambiguous.
Australian Emergency Law 
“The ‘loose cannon’ is the police. The declaration of an emergency gave the Minister the power to exercise a variety of emergency powers including the power to evacuate. The police have those powers without the need for a declaration of a state of emergency and may exercise them on their own initiative (ie without reference to the Rural Fire Service, at local, regional or state level)”
Indeed. Even though the issues regarding clear C&C in NSW are less than in other states. They are by no means perfect. Police, by nature of their profession, have the authority to act and assume control of an incident. Which would see the police assume the position of incident control (IC) within a multi-agency response. Under AIIMS methodology.
Typical scenarios where this is seen would involve search and rescue. Where Police Rescue officers would quite effectively oversee a response involving VRA, SES, and FRNSW units.
Complexity arises when police units assume a controlling function, at a local level, without also assuming incident control. It should be understood that if the police haven’t assumed incident control. They have not assumed overall authority for the incident, and are therefore, a supporting agency. Which should appoint a liaison officer and communicate directly with the IC.
Benjamin, I agree. The police do have lots of powers that they can exercise without reference to the incident controller. NSW Police have built an entire position around the office of ‘site controller’. The State Emergency Management Plan defines the Site Controller as “a police officer appointed by and subject to the direction of an emergency operations controller to be responsible for determining the site, establishing site control and controlling on the ground response to an emergency. Until the Emergency Operations Controller appoints a Site Controller, the Senior Police Officer will assume control”. That text appears in the definitions associated with the plan, but gets no further mention in the plan nor is the position supported by the Act. It is my view that this position is quite inconsistent with the rest of the Act and AIIMS. At the risk of personal self promotion, I discuss the conflicts between the role of police and other services in some detail in my book, Emergency Law.
If I’ve understood the Police Site Controller to be similar to a Liaison Officer. Then this is potentially consistent with AIIMS. Where Police units would carry out functions such as:
– evacuation;
– traffic control;
– or public access.
Where such units are under the direction of the Police Site Controller. Who is in turn taking directions from the Incident Controller (IC).
Perhaps, I could illustrate the issues by siting actual instances during operations. The first such instance was where a dangerous tree was found by RFS crews, adjacent to a major highway. The RFS IC then called for the road to be closed, in both directions, to two RFS units. While an RFS chainsaw operator set about felling the tree. During which time a police patrol unit arrived and ordered one of the RFS units to re-open the road. Without consultation with the IC. Placing public traffic under a tree which was in the process of being felled.
Of course the preferred police action would have been to consult with the IC, and assess the need for the road closure. Then relieve the RFS crews and assume traffic control themselves. Another acceptable option would be for police to relieve the RFS IC and assume control of both the tree felling and traffic control. Although there were no negative outcomes from this incident. It does highlight the potential issues which arise when authority is exercised without full situational awareness.
Other such instances are when police units are re-tasking fire crews on-scene. It should be understood that while such communication is often helpful. Such as: “There is a fire over there, I think you need to put that out first”. It should be considered advisory, not authoritative. Police are functioning (quite effectively mind you) in that situation as a lookout. But still don’t have a control function. Authoritative communication needs to go through the IC, Operations Officer (if required), or the Liaison Officer (if it is a secondary agency), then Divisional or Sector Control (if required), then to the Crew Leader. Who directs the individual firefighters.
The problem is that the police, according to their own documents, see the site controller quite differently. If the incident is under the control of LEOCON then the site controller is representing their authority, but otherwise the Emergency Management Plan (and AIIMS) have no detail. The position of site controller is in the definition section only. There is no reason to think a police site controller is taking direction from an IC and their manual doesn’t say they will.
With respect to the RFS attending to a dangerous tree, you could close the road (s 24 says “The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.” Incident is defined in the Emergency Management Plan “a localised event, either accidental or deliberate, which may result in death or injury, or damage to property, which requires a normal response from an agency, or agencies.” An emergency, on the other hand, is:
“an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:
(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or
(b) destroys or damages, or threatens to destroy or damage, property in the State,
being an emergency which requires a significant and co-ordinated response.” (SERM Act s 4).
So the RFS discovering and taking action to remove a tree that ‘endangers, or threatens to endanger, the safety or health of persons’ is dealing with an incident – but not an emergency. But the police also deal with an incident. The problem here is that neither the RFS nor the police are the ‘combat’ agency for a dangerous tree, unless it has been made dangerous by a fire that is still burning in the vicinity. Otherwise it’s got to be a job for the relevant roads authority, the tree owner, the council or the SES (depending on where it is, who owns it, why is it dangerous etc).
Do the police have the power to order the RFS to open the road? Not really; they have lots of power over roads, but so to does the RFS (see s 24) why would one state Act override another? The reality is that most volunteers aren’t going to refuse to do what the police tell them to do, and even if you could argue that the police had no more authority than the RFS, you don’t want to have to go through the process of being arrested, charged and then turning up in court to argue the point, so (sensible) people tend to do what the police tell them to do.
The problem is that this whole idea that there is one incident controller, that everyone’s going to recognise; that control is formally handed over etc is simply not reflected in the law. The position of incident controller does not exist except in internal procedures (such as AIIMS) – there is no statutory authority. There is no obligation upon police to consult the IC (and police have huge powers under all sorts of legislation) or for the IC to consult the police (compare that with say the Fire Service Act 1979 (Tas) s 29 – which allows a brigade chief to close the road, but not when a police officer is present – at that time it’s a matter for the police).
One might consider the RFS Act s 41 which requires police to support and help give effect to the orders of the RFS but that only applies where there is a fire (hence my question, why was the tree dangerous?).
The reality is that if members of the RFS observe a dangerous tree and stop to do something about it, they’re exercising no more authority than I would be. I could stop and attend to the tree – I could even ‘close the road’ (but if the police told me to move off, I would have no counter authority, I would have to do what they said).
Unless the operation has been transferred to the police under the SERM Act, police have no authority to retask a fire crew on the fire ground.
Michael
The Commisioner of the NSW RFS certainly does make S44 declarations and they are sent out by email to all agencies so it is very clear who is in charge. The declartion states the Local Govt area or areas affected by the declaration and lists the Incident Controller and his or her deputies. There can be and often is multiple declarations on any given day as there are multiple fires in different locations across the state.
Sometimes there are pre-emptive declarations….no fire at all but if there is one the control function and IMT are already set up. For a land managment agency this means basically all of their fire fighting capability and staff are no longer working for thier agency but for the RFS.
I believe this is unique to NSW and in my 20 years of working in such a system looking from all sides (RFS staff, RFS volo, Land Managment Staff) I think the state is fortunate to have such legislation.
I’m not exactly sure why a State of Emergency was declared as the powers suposedly enabled by such a declaration were already in place under the police and fire service acts.
Great Article …thanks
Cameron W
Thanks Cameron,
I’m aware that s 44 Declarations are made, the problem is that they are not made public, that is they do not appear to be published anywhere. I like to reference material on this blog (too long an academic not to) hence my statement that I assumed a s 44 declaration had been made, but “I can’t find evidence of that declaration” that is I can’t prove it as I can’t locate it.
It’s true that the emergency powers or something similar are available even without an emergency declaration but they are somewhat limited – under the RFS Act they can be exercised ‘near’ the fire (see my post on the ‘State of Emergency‘) and under the State Emergency and Rescue Management Act the police have broad powers, but not necessarily the RFS (see my discussion in this post). As also noted in my ‘State of Emergency’ post, both the 2009 Victorian Bushfires Royal Commission and the review of the 2013 Tasmanian fires recommended a formal declaration of emergency in order to communicate the urgency of the situation and to reassure the community that the government was taking the matter seriously, and that may well have also contributed to this declaration. Where the legislature provides for such a mechanism, it must intend that it will be used, and if not for this event, then for what?
Aren’t police subject to the direction of the RFS Commissioner under Section 45 of the Rural Fires Act? Also couldn’t constables also be considered to have a common law power to evacuate people where they are in imminent danger?
Though I think a more interesting question is whether the RFS should have it’s own evacuation powers in its own Act (similar to those of the SES). Do rural fire services in other jurisdictions have evacuation powers?
Section 45 is headed “Power to give directions etc” and it authorises the Commissioner to “give such directions as the Commissioner considers necessary to fire control officers, deputy fire control officers, officers of rural fire brigades, local authorities, officers or members of Fire and Rescue NSW, members of the NSW Police Force and other persons…” The Commissioner is authorised to give those directions, but the police do not have to obey them – s 45(3) says “(3) Any person (other than a police officer) who fails to observe any direction given under this section by the Commissioner is guilty of an offence.”
Now as with an earlier response it’s “probably of little significance” as during a coordinated emergency (at least in theory) the RFS is in control, they direct the other agencies (including police) who exercise command to perform their allocated tasks and so police will comply with the directions of the RFS Incident Controller. But I don’t think it’s beyond imagination that a police officer may reject being told what to do by the on scene captain of the volunteer Brigade even if he or she is communicating the IC’s intention.
Further, the provisions in the SERM Act ss 60L and 61 do not require the police to refer to anyone. The powers in those sections may be exercised by a senior police officer at any time the necessary conditions are met. That does allow prompt, on the ground decision making, but it may not be consistent with the combat agencies intention. As lawyers we also ask the worst case question – it may be that it doesn’t matter if the police and fire service are all ‘on the same page’ but one has to consider what could happen in less than ideal circumstances, and police have very extensive powers, not only under the SERM Act but under lots of legislation (eg the Law Enforcement (Powers and Responsibilities) Act that they can exercise on their own initiative.
Compare this situation with that in the ACT. The Emergencies Act 2004 (ACT) s 68(7) says, with respect to rural fires
(For a similar provision with respect to urban fires, see s 67(5)).
Although the police have an independent authority it is to be exercised in accordance with the Chief Officers directions and guidelines or subject to his or her authority unless that cannot be obtained.
All Australian fire services have the power to order evacuations thought the circumstances in which they can do that do vary. For a comparison of the RFS powers and powers under a state of emergency see my blog post ‘State of Emergency‘ or see http://casuscalamitas.com/2013/10/22/state-of-emergency-what-powers-does-it-add/ (but wait – that’s your blog!)
I can’t imagine where there is a common law power to order evacuations. The history of constables is that they are law enforcement officers not public safety officers. They may have common law powers to arrest and search; and there are common law authorities that can be relied upon by anyone to enter premises in urgent circumstances to rescue others from immediate harm, to fight a fire, or, dare I say it, to block traffic because of an accident. All that is covered by ‘necessity’ but I can’t imagine any common law power to forcibly require anyone to evacuate an area where they are lawfully entitled to be, even if it is dangerous. That is why such provisions need to be in legislation.
The State of Emergency declaration affords far more extensive powers than the Rural Fires Act. Under the latter, officers of the RFS are given authority to enter premises and extinguish fire. However, this power does not extend to forced evacuation of private citizens. There is no penalty for a private citizen who disregards the instructions of an RFS officer.
With the declaration of a State of Emergency. It was made a punishable offence for any citizen to disregard the instructions of an RFS officer (or that of any other emergency service). These powers are far more extensive than the Rural Fires Act. Which is more concerned about fire-fighter access. As well as the utilisation of water and equipment which are privately owned. Or the destruction of private property in the course of fire suppression.
On a practical note. The reason why this declaration might have been made, would be, because fire-fighters lives were being put at risk because they had to check burnt areas to ensure no people were left behind. People were, in some cases, salvaging belongings and defending their homes in an unsafe manner. The RFS doesn’t have to power to arbitrarily remove people in a pre-emptive fashion.
Michel might have more to say. But as a volunteer, that is my understanding.
The Rural Fires Act 1997 (NSW) s 22A says “An officer of a rural fire brigade or group of rural fire brigades may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.” As Benjamin notes that is to do with extinguishing the fire, that is you can require a person to leave if they are getting in the way, but not because it is in their best interests (or the best interests of later rescuers) for them to go. Further they have to present at or near a fire so pre-emptive evacuation is not anticipated.
Certainly the declaration of a state of emergency (see “State of Emergency declared in NSW“) gave the Minister the necessary powers to order an evacuation and he delegated that to the Commissioner of the RFS.
Even without the declaration the police had the necessary powers (State Emergency and Rescue Management Act 1997 (NSW) s 60L); the declaration extended that to all emergency service officers (except, perhaps, Regional Emergency Management Officers – see “Who is an authorised “emergency services officer” during the current NSW disaster?“.
I believe you’re correct with regard to the various powers – my question is whether the RFS should have access to stronger evacuation powers in their own act. The SES has (pretty much letter for letter) the same evacuation powers as are contained in the SERM Act under a State of Emergency.
The possible need to access these powers was a justified reason to declare a state of emergency, although to my knowledge the RFS did not order any evacuations whilst it was in place.
Declaration of a State of Emergency is a pretty serious undertaking as it not only infringes the rights of ciitzens, but also restricts their avenues to seek recompense for any infringements. It’s for this reason that I don’t support the concept of using a State of Emergency to ‘communicate the seriousness of a situation’ – Governments should use other tools (see inquiry recommendations about graded declarations) for community warning.
Given that other emergency services can access evacuation powers equivalent to those under a State of Emergency it would make sense that these are replicated across all emergency service legislation.
The police also have virtually the same evacuation powers without the need for a declaration. The declaration of a state of emergency does not infringe rights, but it does empower some to do that. The issue that concers me is anyone ever, really, going to enforce evacuations? Who wants to be bothered dragging someone who doesn’t want to go? Saying the evacuation is ‘compulsory’ adds some moral force but is, I think, not much more than symbolism.
“I believe you’re correct with regard to the various powers – my question is whether the RFS should have access to stronger evacuation powers in their own act. The SES has (pretty much letter for letter) the same evacuation powers as are contained in the SERM Act under a State of Emergency.”
As it currently stands the RFS don’t automatically have these powers under the Rural Fires Act. The issue of law change is separate to the discussion on the interpretation of existing laws. Perhaps you should consider writing a letter to the Minister for Emergency Services. Or to your local member in the NSW Parliament.
On a practical level, within the RFS, we are less likely to encounter members of the public as are rescue workers. As bushfires are typically environments devoid of public citizens. (That is, sensible public citizens). So the power to evacuate is usually not required or exercised. There is also a cultural history of property owners, in country regions, defending their own properties. Which is actually the culture from which the RFS originated. The RFS began as a “band of farmers”. Working together for mutual self protection. So the idea of forcibly removing someone from their property is contrary to the way in which most RFS firefighters think.
However, these days, with the increase of Urban Interface Firefighting. Where the general public are not safety conscious, or properly equipped to deal with bushfire. It is possible that this approach might need to be revisited. But we should allow the Parliament to make that determination.