This comes for a NSW SES Deputy Region Controller who asks:

1.         The SES act refers to the Emergency Officer and Senior Emergency Officer, for example in S22 there is reference to emergency officer, then in 22A it refers to Senior Emergency officer.  What is the difference?  I know in the SERM act they are called Emergency Officers but it the SES act there are both references.

2.         Under Section 22A it provides for a Senior Emergency Officer to direct the doing of various things.  I know the Commissioner appoints Emergency Officers (basically anyone at and or above Unit Controller rank, although it’s not really rank) is this the same as the Senior Emergency Officer?  Is the interpretation that the SEO would not need to be on scene to use their emergency powers?  In my interpretation however the exercise of this power only is conditional upon an area being declared an emergency area which we really don’t record anywhere internally that I’m aware of.

3.         Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?  I have been told that anyone working under the direction of an EO (appointed by Commissioner in writing) has the ability to exercise the EO powers but I’m not convinced.  What is your interpretation?

4.         Senior Emergency Officers under the SES act include other agency representative above a certain rank, do they each need to be appointed by the Commissioner to have the ability to exercise the powers during storms, floods and tsunamis?  Or is this covered in their respective acts already?  What powers does a fire fighter station officer from FRNSW have at a storm job where there is threat to life?

‘Emergency officers’ are appointed by the Commissioner of the SES. They may be appointed individually or as a class (eg all members who have completed a particular course or of a certain rank).  Emergency officers do not need to be members of the State Emergency Service (State Emergency Service Act 1989 (NSW) (‘the SES Act’) s 15).

Part 5 of the SES Act deals with ‘Emergencies and Emergency Powers’.  For the purpose of Part 5, a ‘Senior emergency officer’ is

(a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit controller,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer (SES Act s 18A).

These positions are defined by the Act, that is they do note need to be appointed by the Commissioner, they are senior emergency officers by virtue of their appointment to that office or rank.

The State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’) does not refer to ‘emergency officers’.    The Act used to refer to Local and Regional Emergency Management Officers (LEMO and REMO respectively) but those references were removed by the Emergency Legislation Amendment Act 2012 (NSW) (Schedule 3, page 11, paragraph [24] and Schedule 3, page 13, paragraph [31]).  The effective date of that change was 26 November 2012.

References to the REMO and LEMO are now contained in the State Emergency Management Plan (page 15, paragraph [412] (REMO); page 17, paragraph [422] (LEMO)).  The REMO/LEMO have no specific operational role, they are the officers providing executive support to the Regional and Local Emergency Management Committee and Regional and Local Emergency Operations Controller, respectively.  A Regional Emergency Management Officer is a Senior Emergency Officer but during the 2013 Blue Mountains Bushfires, when a State of Emergency was declared and specific authority to exercise emergency powers was granted, the REMO’s were specifically excluded from the grant of power to order an evacuation (see ‘Who is an authorised “emergency services officer” during the current NSW disaster?’ (3 November 2013).).

Part 5 of the SES Act provides for emergency powers when dealing with emergency caused by floods, storms, tsunami or any other emergency where the SES Commissioner has been directed by the State Operations Controller to take charge.  (The State Operations Controller is the Commissioner of Police or another person appointed to that officer under the SERM Act s 18).

During these emergencies the SES Commissioner is to ‘have overall control of operations’ (SES Act s 20) and:

(1) Every member of the NSW Police Force and all other members of emergency services organisations are to recognise, in connection with operations in response to an emergency to which this Part applies, the authority of the Commissioner and emergency officers acting under the Commissioner’s orders or the orders of the region controller or local controller.

(2) It is the duty of every such member to assist the Commissioner or other emergency officer in connection with those operations. (SES Act s 21).

The Commissioner can direct or authorise emergency officers to take various actions under s 22 (‘Power to evacuate or to take other steps concerning persons’) and may direct or authorise senior emergency officers to take various actions under s 22A (‘Power to take other safety measures’).   A senior emergency officer authorised to take action under s 22A can also authorise people to assist, so the senior emergency officer may authorise someone else to enter premises to give effect to his or her directions (see ss 22B-22F).

Let me return to the questions:

1.         The SES act refers to the Emergency Officer and Senior Emergency Officer, for example in S22 there is reference to emergency officer, then in 22A it refers to Senior Emergency officer.  What is the difference? 

Emergency officers are appointed by the Commissioner of the SES;

Senior emergency officers hold that office by virtue of their rank or appointment to a position listed in s 18A.

2.         Under Section 22A it provides for a Senior Emergency Officer to direct the doing of various things.  I know the Commissioner appoints Emergency Officers (basically anyone at and or above Unit Controller rank, although it’s not really rank) is this the same as the Senior Emergency Officer? 

No, senior emergency officers hold that office by virtue of their appointment BUT they are not allowed to exercise their authority under s 22A or ss 22B-22F unless they have been authorised by the Commissioner of the SES to do so.    Sections 22 and 22A both refer to an ‘emergency area’ being ‘the area affected by an emergency to which this Part applies’ but there is no formal process of ‘declaration’.

Is the interpretation that the SEO would not need to be on scene to use their emergency powers?  In my interpretation however the exercise of this power only is conditional upon an area being declared an emergency area which we really don’t record anywhere internally that I’m aware of.

The Senior Emergency Officer (SEO) doesn’t need to be on scene any more than the Commissioner does.  If we assume that the SEO has been authorised to take action under s 22A and the SEO decides to order that the electricity supply in the emergency area is to be cut off (s 22A(b)) then he or she can direct that to be taken.  The electricity supply authority must send someone to disconnect the power (s 22A(2)) but it would seem silly to expect the SEO also has to go to the sub-station or other area where the electrician is to do his or her work.

3.         Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?  I have been told that anyone working under the direction of an EO (appointed by Commissioner in writing) has the ability to exercise the EO powers but I’m not convinced.  What is your interpretation?

An emergency officer, appointed by the Commissioner and authorised to exercise powers under s 22 may order that people leave premises or an emergency area. Presumably the emergency officer could ask someone else, eg a member of the SES to communicate that message so for example the EO could arrange for SES members to door knock within the emergency area and tell people that they are required to evacuate.

A senior emergency officer, authorised by the Commissioner, may ‘direct’ other people to shut off utilities, disconnect gas and electricity and take possession of dangerous material (s 22A).  The section specifically says that the SEO may ‘direct’ others to do that for the obvious reason that the SEO cannot personally disconnect the gas or electricity or take possession of hazardous material.  Sections 22D-22F then give powers to various people directed by the SEO to do things.

So do “Team leaders working under the remote direction of an Incident Controller (who is an appointed EO) for a flood/storm operation, do they then have the ability to exercise the EO’s powers at a house (emergency area) that needs power cut off immediately?”  The answer has to be ‘no’; the EO or the SEO has the power to make decisions on certain actions.  They can then use others, so if the EO decides to order an evacuation he or she can get SES volunteers to communicate that message, but that is not the same as saying those volunteers can make the decision whether evacuation is or is not required.  Equally a SEO may order that electricity is disconnected but that does not allow an SES volunteer who is not an SEO to make that decision.  If that decision was required, presumably the SES volunteer would need to contact the operations centre to ask for them to arrange for the necessary services to come and the SEO could make the necessary decision so it’s hard to see that is a problem.

In any event there EO’s and SEO’s are not given a power to delegate their decision making and this makes sense as the Commissioner is the one who appoints EO’s and authorises action under ss 22 and 22A.  If EO’s and SEO’s could delegate then the Commissioner’s powers, and the quality control that they imply, would be irrelevant.

So it is my view that no, team leaders working under the remote direction of an Incident Controller (who is an appointed EO) do not have the ability to exercise the EO’s powers to make decisions about evacuations or the SEO’s powers with respect to utilities but they can be used to give effect to those decisions.

Finally question 4; Senior Emergency Officers under the SES act include other agency representative above a certain rank, do they each need to be appointed by the Commissioner to have the ability to exercise the powers during storms, floods and tsunamis?  Or is this covered in their respective acts already?  What powers does a fire fighter station officer from FRNSW have at a storm job where there is threat to life?

Yes, they do need to be authorized to exercise their powers under s 22A.  The Commissioner must be ‘satisfied that there are reasonable grounds for … the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency’ and he or she may then ‘direct, or authorise a senior emergency officer’ to exercise their powers.  Without that authorization, the SEO cannot exercise their powers under s 22A.

A fire brigade station officer has no specific authority at an emergency caused by a flood or storm, and in the absence of hazardous materials.

My correspondent also wrote, when setting out why he thought these questions are important:

Flood Rescue operations see many of our senior volunteers (Deputy Local Controller and above) wrestle with taking control from another agency, particularly the NSW Police especially when they don’t recognise their authority.

That raises further issues.  As noted, s 20 says every police officer is to recognize the authority of the SES. The SERM Act says, at s 50:

The NSW Police Force is responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations.

But the section goes on to say:

(3) This section does not apply to a rescue operation if the control of the rescue operation is vested by law in another agency, such as:

(a) a rescue operation in which the person or property is endangered by fire and at which a member of a Fire Brigade is in charge, or

(b) a rescue operation which results from an emergency and which is subject to the control of another agency in accordance with Part 2.

Part 2 deals with the State emergency management arrangements and the State Emergency management plan (s 13).   The SES is to

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities (SES Act s 8; see also Emergency Management Plan [202] and Annexure 3).

So is ‘flood rescue’ a ‘rescue’ or a response to an emergency from a flood?  The matter is not really open for debate in part because the State Rescue Board says, ‘The NSW State Emergency Service is the legislated combat agency for dealing with floods, which includes flood rescue’ (State Rescue Board, State Rescue Policy (3rd ed, 2013), [1.36]).   The Flood Rescue Policy also says.

The SES is responsible for Flood Rescue Operations as per Displan arrangements in NSW. SRB Policy at Section 1.34 affirms the SES as ‘the combat agency for floods, which includes flood rescue. (State Rescue Board, Flood Rescue Policy (2009), [4]).

The policy goes on to say:

The SES will utilise the RCO within NSW Police VKG Centres to provide an initial coordinated response to flood rescue operations in NSW. Such flood rescue operations are to be conducted in accordance with priorities established by the SES Operations Controller.

Flood rescue responses post the initial coordination provided by the RCO are to be managed in accordance with the SES Controller’s direction, which may include the establishment of a specific Flood Rescue coordination mechanism. The SES controller will control all assigned flood rescue assets from all Agencies.  (State Rescue Board, Flood Rescue Policy (2009), [9] and [10]).

There can’t really be any doubt that the appropriate SES member in charge is in charge of relevant flood rescue operations.  As my correspondent has noted however, convincing a career police officer that they are required to ‘recognise … the authority of [volunteer] … emergency officers … or local controller’ may not be easy.