[A version of this post originally appeared on 2 December and dealt with questions (1) and (3), below. After that original post my correspondent got back to me with some more details and further questions so I have rewritten the post from the original and now deal with those extra issues and the further questions (2) and (4)].
I am asked about potential role conflict when a serving NSW Police officer joins the SES as a volunteer.
A couple of weeks ago a few of the members were having a chat and one of them, who is a NSW police officer, pointed out that off duty police were required to intervene if they saw something that violated the law to the point it couldn’t reasonably be ignored. A senior unit member told him that the service (SES) has a policy preventing off duty police from taking action as a police officer whilst active with the SES. This led to an interesting discussion as to the right and wrong of such a policy, and potential risk to SES team members who may be present in various hypothetical scenarios.
Afterwards I decided to find out if there was such a policy. I spoke with several people including both the Region Controller and my Local Controller and received different answers.
While the law enforcement officers in our unit know what their duties are, the grey area is how the SES views them going about their duties whilst active and clearly identifiable as SES members.
The duty of care question came up in one of the hypothetical scenarios discussed.
A team is attending a job and witnesses an assault across the road, the off duty officer goes over and attempts to stop it and both the people involved attack the officer. As the team leader and other members of the team have a duty of care to ensure the well being and safety of each other would they be required to go to the officers aid, thus endangering themselves.
For this or a similar scenario, or even a more general question like the officer needs assistance in his duties – does their team help, I have received a variety of responses from yes, whatever is needed to no, their on their own.
So my questions are,
- Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,
- Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?
- What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?
- If the officer needs assistance as described in the above scenario is the team required to assist?
This is all purely hypothetical, in close to ten years as a volunteer I have never encountered any situation like this in real life.
Sworn police officers carry on the traditions from the ancient office of constable (Police Act 1990 (NSW) s 14(1)). The office of constable is one of the oldest offices known to law and well predates organised policing. The critical aspect is that appointment to the office is personal, that is a person who is appointed a constable holds that office from the Crown, he or she carries the authority, discretion and obligation to uphold the law and keep the peace. In R v. Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118 Lord Denning said:
I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace.
He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.
No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.
The Police Federation of England and Wales (The Office of Constable: The bedrock of modern day British policing (2008)) say:
With the Office of Constable comes personal accountability and responsibility for the protection of life and property, the prevention and detection of crime, the maintenance of law and order and the detection and prosecution of offenders.
Police officers exercise their law enforcement duties and powers, not because they are members of a police force but because they are constables. People other than police officers can also be constables (Police Act 1990 (NSW) s 82L (note that the Police (Special Provisions) Act 1901 (NSW) discussed in an earlier post – Lifesavers as law enforcers? (July 6, 2014) – was repealed on 30 November 2014) and we can recall the security officers involved in the shooting at Parramatta Police Station earlier this year were identified as ‘special constables’ (ABC News Online, 4 October 2015)).
The fact that police officers exercise powers that are personal to them, that they have as individuals not because they are employees, has given rise to complex issues when it comes to vicarious liability, workers compensation and superannuation (see Are police employees? (August 11, 2014) and Law Reform (Vicarious Liability) Act 1983 (NSW)).
Today, a NSW police officer swears (Police Regulation 2015 (NSW) r 7) to:
… well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty’s peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God.
Even when off-duty(Police Regulation 2015 (NSW) r 9) a police officer
(a) is subject to the provisions of this Regulation and the Police Code of Conduct, and
(b) will be held responsible for any misconduct by the officer while off-duty, and
(c) unless on sick leave, may be recalled to duty as if the officer were on duty.
What constitutes misconduct is not clearly defined (Police Integrity Commission Act 1996 (NSW) s 5). Although not specifically mentioned, failure to perform one’s duties (including the duties of an off duty officer) must be misconduct.
Discussion
We can now return to the questions asked.
- Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,
Yes, but within limits. Police have a discretion to ‘enforce’ the law, sometimes they don’t take steps, sometimes they issue a caution or have a ‘chat’ to set people straight. It is not the case that every officer has to prosecute every offence he or she observes. “He must decide whether or not suspected persons are to be prosecuted” not he must prosecute every offender he observes. [I’ll use ‘he’ as my correspondent refers to this person as a ‘he’ and to avoid the complexity of writing ‘he or she’ constantly, but recognising of course the many women in policing]. The officer in question has to consider issues such as the seriousness of the offence, conflicting duties (such as the fact they are a member of the SES team and safety may be compromised if they take on a policing role and step out of the SES team), that if he tries to exercise policing powers people are unlikely to recognise that he is a police officer (given he’ll be wearing Orange not Blue) and if people think an SES volunteer is trying to big note himself that may well lead to more, rather than less conflict etc. But if he detects a serious offence and in particular observes a serious offence being committed then he may well determine that he must act immediately.
We can give that all some flavour. Assume the SES are called to help with flooding at a home and whilst there the officer observes that there is a hydroponic drug farm in operation. He might decide that given he’s the only police officer there, that discretion is the better part of valour and that he will make a statement to record what he observes and either contact police and ask them to attend (as any SES operator might do) or return later, on duty and with a search warrant, to enforce the law. This may be reasonable if there is no suggestion that the offenders or evidence are likely to be removed and if the people involved have no reason to think, at that stage, they have been observed by police.
On the other hand, if when attending an SES task he observes that a person is committing an offence, perhaps they are engaged in act of violence or at a road crash the driver is obviously intoxicated and attempting to run away, then the officer may well have to put himself back ‘on duty’ and make an arrest.
- Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?
I’m not aware of such a policy but I don’t need to go and look for it because such a policy, if it did exist, would be meaningless and unenforceable. The SES can’t tell a police officer to ignore his or her sworn and statutory duty any more than it could tell a doctor not to treat a person who needs medical care or tell a driver, or anyone else, that they are not required or allowed to comply with the law.
- If so, what responsibilities does this place on his team leader and other team members in such an event, re: duty of care, etc?
Like anything it means you have to plan for such an eventuality. I suspect the issue is largely theoretical (ie it won’t happen often if at all) but clearly you need to think about ‘what are we going to do if…’ and have a plan. Speak to the officer involved about what he thinks could happen and what is an appropriate response. What circumstances does he envisage that will compel him to step out of his SES role and back into his police role? What will you do if that happens? Is there any limitation that his policing role puts on his volunteering?
- If the officer needs assistance as described in the above scenario is the team required to assist?
That’s a more complex question – but I think ‘required’ is the problem.
One of the functions of the SES is to ‘to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency’ (State Emergency Service Act 1989 (NSW) s 8(1)(g)). That can’t be seen as a clear obligation, police (or the other emergency services) could ask the SES to assist and the SES could reasonably say they are unable to do so if they don’t have the resources or the task they are being asked to do is beyond the training or capacity of the members or is too dangerous. Fire and Rescue NSW could ask the SES to send members into a burning building to rescue people and the SES could rightly refuse. Police could ask the SES to provide members for an armed response team and again the SES could rightly refuse. It follows that if the police officer decides to intervene in a violent incident he could request SES assistance and the SES could assist, but they would not be ‘required’ to given such an action is well outside SES roles and responsibilities. It would, however, be a ‘bad look’ if the SES refused to assist not only a police officer but a fellow member if that member required assistance and if the members were reasonably capable of providing such assistance. The idea that one SES member, albeit a police officer, is struggling to make an arrest whilst his colleagues, also dressed in Orange, did nothing, cannot really be imagined. If they did assist the members would certainly be performing an SES function.
Putting aside that the people are members of the SES anyone can go to assist police should the police require it but there is no obligation to do so. Equally anyone can make an arrest if they observe a person ‘in the act of committing an offence’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100).
Certainly there would be a WHS issue to ensure so far as is practicable the health and safety of the members. There would not be a duty to protect the police officer who at that point is acting as a police officer/constable not a member of the SES and one would have to consider the risk to the other members but as always the obligation is not to ensure no risk (if it was the SES wouldn’t turn out to do anything). Going to help a police officer to make an arrest in times of risk to the officer and oneself is the sort of conduct that leads to a medal, not a WHS prosecution!
Conclusion
- Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer?
Yes
- Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?
Not that I’m aware of, but if it did it would be meaningless and unenforceable.
- What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?
To plan for such things, as you must plan for many eventualities such as where members leave a team due to injury, or some other emergency occurs in the vicinity of the team and takes them away from their original task.
- If the officer needs assistance as described in the above scenario is the team required to assist?
Required? No; able to? Yes. Should do? Depends on all the circumstances.
Australian Emergency Law 
Hi,
I was wondering if the answers to questions 1 and 2 would change in the situation of the police officer also being a volunteer ambulance officer?
The main difference being in respect to patient confidentiality.
Regards,
Maciej
The issue is complex because police need to be able to take themselves ‘off line’ simply to rest and recuperate (as we all do). Further when they are acting in another capacity they need to consider the standing, reputation and expectation of the service they are working for. So a police officer who is a member of the SES, a fire service or an ambulance service has to remember that people have different expectations and understanding of those services. That expectation may be damaged if they think that those services are now also ‘policing’ (and they may not recognise or understand that it is just this member is also a police officer).
That issue would be particularly true with the respect of ambulance services where people are asked to provide confidential information that may include information about law breaking, in order to get proper treatment. A person may be unwilling to reveal, say, that they have been self-administering a prohibited drug (an offence under the Drug Misuse and Trafficking Act 1985 (NSW) s 12) if they think that might lead to prosecution but that information is vital if they are to receive their appropriate health care.
That doesn’t change my answer to questions 1 and 2. A constable remains a constable and is duty bound by the relevant laws governing police in the state (and in the context of the original question that is the NSW law). But as also noted that doesn’t mean the police have to prosecute everyone and that the other issues have to be considered.
What is more relevant in the ambulance context is the issue of evidence. If a person makes an admission that is they say something that implicates them in a crime, then a person who hears that admission can repeat it in court and it is evidence of the person’s guilt (Evidence Act 1995 (NSW) s 81). The rationale is that a person is unlikely to say something that is against their own interests unless it is true. But not all admissions are admissible, depending on the circumstances. First there is a concept of ‘Professional confidential relationship privilege’. The idea here is that evidence of what a person says in the course of a confidential relationship can be excluded from court. A confidential relationship arises where the person receiving the information is ‘acting in a professional capacity’ (eg a doctor, nurse, counsellor and, arguably, a paramedic) and the person receiving the information is ‘under an express or implied obligation not to disclose its contents’ of the discussion (Evidence Act 1995 (NSW) s 126A). There are circumstances when the evidence can be used and that depends on many factors that I won’t go through here, but one can see the issue. The officer has received information about an offence that on one hand he’s duty bound to investigate but on another he’s duty bound to keep confidential. What’s to happen?
The first step is to consider the nature of the information and the offence. If the person is disclosing past offending and it’s relevant to the provision of ambulance care (eg I’ve taken three tabs of ecstasy) protecting the confidence is probably the most important. If on the other hand, it’s a serious offence and the information isn’t really relevant (eg at the scene of a fatal assault the patient admits that it was him who struck the deceased and that at the time he was trying to kill her) then giving that evidence to help secure a conviction for murder is probably more important.
The issue is made more complicated by the fact that the ambulance officer is a police officer. That is if a person made that admission to any paramedic the paramedic could give evidence of that admission. But an admission made to a police officer is not admissible if it is made in response to a question and the question is asked by a person ‘who was at the time empowered, because of the office that he or she held, to arrest the person’ unless the person has been cautioned that they do not need to say or do anything but anything they say or do may be used in evidence (Evidence Act 1995 (NSW) s 139).
The caution does not need to be given every time a police officer asks a question, only when he or she thinks that the person may have committed an offence and may be the subject of a prosecution. Assume then the ambulance are called to a violent incident and on arrival they see police have arrested someone. The ambulance collects the person believed to be the victim, at that point asking ‘what happened?’ wouldn’t require a caution as there is no suspicion falling upon that person. But if he or she says ‘actually I did it, I beat him up, the cops have the wrong guy’ the ambulance officer/police officer should, at that point, identify that they are police and issue the caution. If they don’t that admission and certainly any further, subsequent admission, could well be excluded from the trial.
I received this comment via email and I post it here with permission of the person who wrote it:
I am a sworn NSW Police officer and also a member of a retained Fire and Rescue NSW Brigade (also a volunteer unit even tho we are paid, hence why we are referee to as volunteers in the Fire Brigades Act 1989) when working with Fire and rescue and I do detect an offence, most of the time I do what any other Fire fighter would do and ask coms to contact police (on duty). The only softener is I make notes later (in my NSW Fire and Rescue issued notebook) and make it know to police in attendance I am a witness and off duty officer. This fulfills most of my duties.
If it is a limit offence I sometimes just make the notes and deal with it myself when next on duty just as if another fire fighter had seen something, recorded it and reported it to me later, only I am my own witness.
It would need to be very serious for me to step in when in Fire and Rescue clothing (even though I always carry my police badge) because Fire and Rescue as an organisation try to remain neutral to maintain public trust (hence why fire fighters won’t hose down rioters with a line of 70) and the public wouldn’t realise it’s a police officer in a fire fighters uniform wrestling with someone. I would step in if needed but by that stage I would have seen an offence committed in front of me and a non police officer would have grounds for arrest (sec 100 LEPRA [Law Enforcement (Powers and Responsibilities) Act]) so if they too were concerned my fellow hose bros could assist. (Although I always use my s 99 arrest powers [Note: s 99 of LEPRA deals with the arrest powers of police; s 100 deals with the powers of ‘citizen’s arrest’).
The only issue I have faced outside this is when I have seen a person wanted for a warrant. But in those cases I just have to weigh up the seriousness nature of the offender and offences and remember I don’t have arms or appointments.