That’s the heading of an article in the Canberra Times of 26 October.   The gist of the story is that ACT Fire and Rescue were attending a very significant fire in central Canberra when the Commissioner of the Emergency Services Agency arrived on science and questioned the superintendent (who one can infer was the incident controller but that language is not used in the paper) ‘about the placement of the Bronto [aerial firefighting platform] as firefighters worked to bring the fire under control.

The paper says:

ACT law strictly limits the commissioner’s operational role and, in many cases, his power to issue directions to service chiefs on how they should respond to emergencies like the Sydney Building fire.

The relevant law is the Emergencies Act 2004 (ACT).  This Act is unique in Australia (and reflects the Territories small size) as it brings four emergency services; ACT Fire and Rescue, the ACT Rural Fire Service, ACT Ambulance and the State Emergency Service, under a single agency, the Emergency Services Agency, which is under the management of the Commissioner.  A Chief Officer is appointed for each service.   All of the Chief Officers have extensive powers to deal with an emergency under their control (s 34) and the Chief Officers of the two fire brigades are given further powers to deal with fires (ss 67 (fires in built up areas) and 68 (rural fires)).

The Commissioner ‘is responsible for the overall strategic direction and management of the emergency services’ (s 8).   During an emergency the Commissioner ‘may direct a chief officer to undertake response or recovery operations in relation to the emergency’ but he or she may not ‘direct the chief officer to undertake an operation in a particular way’ (s 8A).    Although the Act does not refer to ‘command’ and ‘control’ this section reflects that distinction: the Commissioner can assign a task to any of the Chief Officers (control) but it is up to the Chief Officer to determine how they will perform that task (command).

The paper does not say that the Commissioner was directing the superintendent but rather was asking questions.  One does not need lawful authority to ask a question: ‘The power of inquiry, of asking questions, is a power which every individual citizen possesses… (Clough v Leahy (1904) 2 CLR 139 (Griffith CJ)) so anyone could have asked the superintendent whether or not the Bronto was appropriately deployed.  Whether the superintendent would have chosen to answer, may well depend on whether the questioner was the Commissioner of the ACT Emergency Services Agency, one of the firefighters or a bystander, but anyone can, and more importantly, should ask questions if there is a perceived issue.

Failure to ask, because of concern about the chain of command, can lead to tragic outcomes.  If a subordinate sees a problem but fails to ask his or her superior ‘do you think that’s ok’ or a superior, even without lawful authority to give directions, fails to ask then mistakes may be made or continued.    Any sensible learning organisation would encourage anyone in the chain of command to speak up if they perceive that a mistake is being made.  The 2009 Victorian Bushfires Royal Commission was critical of the actions of the various Chief Officers for not asking questions of their incident controllers (see 2009 Victorian Bushfires Royal Commission, Final Report, Vol II, [2.3]).  Whilst the ESA Commissioner is in a different position to the officers in charge of Victoria’s response in 2009, it remains the case that if he or she observed something or wanted to make inquiries, either so he or she could better understand the response in order to report to the Minister, or to raise an issue with the incident controller, it would be remiss not to do so.  One can rest assured that any inquiry into a poor outcome would look unkindly on any Commissioner (or any fire fighter) who said ‘I thought that the Bronto was in the wrong place and not being used effectively but I didn’t say anything as the Act didn’t allow me to give directions’!

There is a clear distinction between giving directions on how a job is to be done; and asking questions.  Anyone should be prepared to ask questions if they think there is a safety or efficiency issue (ie that it wold be safer, or more effective, to take a different approach).  No incident controller should think that they have all the answers and having another person ask a question should at least flag that there may be an issue that needs to be considered.  Having a culture that discourages anyone from asking a question will only lead to tragedy.  The Commissioner, asking questions, was not a breach of the Emergencies Act 2004 (ACT) and is consistent with the Work Health and Safety Act 2011 (ACT), the Commissioner’s responsibility to report to the Minister and the common law.