A correspondent with NSW SES asks questions that I am assured are entirely hypothetical rather than relating to actual event.   Perhaps an interesting training room discussion?

On conducting a Search Warrant on a private residence, the NSW Police find they are unable to access the ceiling space.  They call the SES for assistance.

  1. Can the SES refuse to help in this exercise?
  2. Can the home owner refuse access to SES personnel?
  3. If the SES helps and enters to property and damage walls or furniture whilst managing their ladder, who is responsible for damage? Particularly if nothing is found on the search.
  4. Can the Police just send SES personnel to search the ceiling space because they don’t want to get their suits dirty?
  5. What happens if something is found by SES?
  6. The home owner tells Police Asbestos dust is present in the ceiling space, the Police take this with a grain of salt and send SES up anyway (without informing them) but Asbestos dust is present and nothing else is found, who is responsible for any compensation claim? For SES or any Police who enter if they ignore the warning?
  7. Swap NSW Fire and Rescue for SES and are the answers the same?

What is a search warrant?

A search warrant is an authority to enter premises to conduct a search to find evidence.  A police officer may apply for a warrant if he or she ‘believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 47).  A warrant is issued by an ‘eligible issuing officer’, that is a Magistrate, the registrar of the Local Court or an authorised employee of the Attorney-General’s department (s 3).  The issuing officer must be satisfied, based on the information provided by the police, ‘that there are reasonable grounds’ to issue the warrant (ss 48 and 62(3)).  The warrant, once issued, gives the police officer who applied for the warrant the authority to enter the premises and to search for items related to the offence identified in the warrant (s 47A). Even though the warrant is issued to allow police to search for items related to a ‘searchable offence’ (ss 46A and 47) they can in fact seize anything that they find and which they suspect is related to any offence (s 49).

Before executing the warrant (other than a covert warrant and in some urgent circumstances) the police must announce their presence and their intention to enter the premises (s 68), they must show the occupier the warrant if asked to do so (s 69) and must serve a ‘Notice to occupier’ (s 67).   The police officer who obtains the warrant can’t be expected to act alone.  He or she will need assistance – ‘A person may execute a warrant with the aid of such assistants as the person considers necessary’ (s 71).   Further, ‘A person authorised to enter premises pursuant to a warrant may use such force as is reasonably necessary for the purpose of entering the premises’ (s 70(1)).    Further ‘It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function’ (s 230).

Let me now then turn to the other 6 questions.

  1. Can the SES refuse to help in this exercise?

It is a function of the SES 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’.    Incident is not defined.  An emergency, for the purposes of the State Emergency and Rescue Management Act 1989 (NSW) (s 4) is:

… 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.

Whilst one could argue that executing a warrant is an ‘incident’ in context I don’t think it is the sort of ‘incident’ for which the SES was created.  It follows that assisting police in this case is not a function of the SES, but that does not mean that they can’t do it.   But equally the SES could refuse to undertake the task. No-one is required to assist the police and if the SES volunteers don’t want to do it, or having completed a risk assessment think that the task is not appropriate or safe they could indeed refuse to assist.

  1. Can the home owner refuse access to SES personnel?

No.  The police are conducting the search and they are authorised to use ‘such assistants’ as the investigating officer thinks are required.  If that includes the SES then so be it.  The owner has no say in who the police use as their assistants, whether it’s the SES, a locksmith, a plumber, a dog handler etc.

  1. If the SES helps and enters to property and damage walls or furniture whilst managing their ladder, who is responsible for damage? Particularly if nothing is found on the search.

Whether anything is found or not is irrelevant, a search is looking for evidence, it doesn’t mean there is evidence to find.   As for who is responsible that depends.  Let us assume that the damage is caused by lack of care rather than a deliberate action to enter premises.  The first claim would be against the police.  It is their search; the SES are assisting them. The homeowner/occupier would look to the police to make good the damage.  The police (via their insurer) may look to the SES but that is extremely unlikely.  First it is a bad look for government agencies to sue each other (but not unheard of, see Metropolitan Ambulance Service v State of Victoria [2002] VSC 222).  Secondly both the SES and NSW Police are likely to be insured by the NSW Managed Fund that is a pool established to cover government liabilities, so it won’t matter whether the liability is said to belong to SES or police, it will be paid from the same fund (if the value of the damage is large enough to make a claim; see NSW Self Insurance Corporation Act 2004 (NSW)).    If the claim is small it would be up to the SES and police to work together to agree who’s going to pay the bill and again that would depend on what happened, why and at who’s direction.

  1. Can the Police just send SES personnel to search the ceiling space because they don’t want to get their suits dirty?

Well I suppose they could ask, but if that was their stated reason I suspect the SES would refuse.  Second the police can only use those assistants that the investigating officer ‘considers necessary’ and it must be necessary to conduct the search, not to protect their uniform.  In short the answer is ‘no’.

  1. What happens if something is found by SES?

The SES would have to tell the police who would deal with it as evidence. Hopefully the police would have briefed the SES on what they are looking for and what to do if they find something.  The critical answer is that the SES member can expect, should the matter to go to court, that he or she will be called to give evidence as to how they conducted the search and what they found and to confirm that neither they, nor the police, ‘planted’ the evidence.

  1. The home owner tells Police Asbestos dust is present in the ceiling space, the Police take this with a grain of salt and send SES up anyway (without informing them) but Asbestos dust is present and nothing else is found, who is responsible for any compensation claim? For SES or any Police who enter if they ignore the warning?

At first instance the SES member will be entitled to compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) so in short the responsible agency is the SES.  But that doesn’t mean that, again, the SES may not look to shift some of those losses to police (again recognising that it’s not ‘politic’ to let government agencies fight in public, and in either case, it’s probably the same insurer).

An injured SES volunteer could, if the damages were sufficiently serious, sue either or both the SES and the Police (actually, in both cases – the State of New South Wales) for negligence in the way both agencies handled the information and the search.     That would depend on who knew what, what information was given, what briefings there were, how the liaison was managed between police and SES etc.  There are too many variables there to say it would be ‘the police’ or ‘the SES’ that was liable.  How that might be split between the agencies would depend on all the facts.

  1. Swap NSW Fire and Rescue for SES and are the answers the same?

Yes, the answers would be the same.