Today’s correspondent comes from NSW and asks
I was wondering if you could define the meaning of an Emergency Service as opposed to an essential service.
And if you could research which the Neonatal & Paediatric Emergency Transport Service in NSW would fall under.
In New South Wales, there is the Essential Services Act 1988 (NSW). This Act is intended to give the government special powers to ensure the continued supply of essential services particularly during periods of industrial action. Fort the purposes of that Act an essential service is (s 4) that consists of any of the following (emphasis added):
(a) the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources,
(b) the public transportation of persons or the transportation of freight (including the provision of rail infrastructure for those purposes),
(c) the provision of fire-fighting services,
(d) the provision of public health services (including hospital or medical services),
(e) the provision of ambulance services,
(f) the production, supply or distribution of pharmaceutical products,
(g) the provision of garbage, sanitary cleaning or sewerage services,
(h) the supply or distribution of water,
(i) the conduct of a welfare institution,
(j) the conduct of a prison,
(k) a service declared to be an essential service under subsection (2),
(l) a service comprising the supply of goods or services necessary for providing any service referred to in paragraphs (a)-(k).
According to the State Emergency and Rescue Management Act 1989 (NSW) s 3 an emergency services organisation is:
… the NSW Police Force, Fire and Rescue NSW, Rural Fire Brigades, Ambulance Service of NSW, State Emergency Service, Volunteer Rescue Association or any other agency which manages or controls an accredited rescue unit.
We know from the Road Rules 2014 that an emergency vehicle is a vehicle operated by an emergency worker. An emergency worker is
(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or
(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or
(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or
(c) a person (or a person belonging to a class of persons) approved by the Authority.
If the organisations that an emergency worker works for is an emergency service, then that definition also captures Fire and Rescue NSW, NSW Rural Fire Service, Ambulance Service of NSW and the State Emergency Service.
Finally, each piece of legislation is assigned to a minister. One might think that an emergency service is a service that reports to the Minister for Emergency Services. The Administrative Arrangements (Administration of Acts—General) Order 2017 (NSW) says that the Minister for Emergency Services is responsible for the following legislation:
Community Welfare Act 1987 No 52, Part 5 and any other provisions of that Act so far as they relate to functions under Part 5 (remainder, jointly the Minister for Disability Services and the Minister for Family and Community Services)
Fire Brigades Act 1989 No 192
Fire Services Joint Standing Committee Act 1998 No 18
Rock Fishing Safety Act 2016 No 66
Rural Fires Act 1997 No 65
State Emergency and Rescue Management Act 1989 No 165
State Emergency Service Act 1989 No 164
That would imply that the emergency services are Fire and Rescue NSW, NSW Rural Fire Service, Ambulance Service of NSW, the State Emergency Service, operators of accredited rescue units, the Fire Services Joint Standing Committee and the Department of Family and Community Services to the extent that it is engaged in the provision of Disaster Welfare Assistance. It does not appear that the Rock Fishing Safety Act 2016 (NSW) creates a service that could be described as an emergency service.
If that is one’s definition of an emergency service then what is missing is the Ambulance Service of NSW. That service is a health service created by the Health Services Act 1997 (NSW) and under the authority of the Minister for Health.
The reason for giving those various definitions is to point out that largely the answer depends on why you want to know, that is the context of the question. The question that my correspondent really wants answered is what is the status of the Neonatal & Paediatric Emergency Transport Service in NSW.
The Health Services Act 1997 (NSW) s 67E(1) says that it is an offence to
(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or
(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,
without the consent of the Health Secretary …
That rule does not apply to (s 67E(3); emphasis added):
(a) the St John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this section commences, or
(b) the Royal Flying Doctor Service of Australia (NSW Section), or
(c) the mines rescue company, within the meaning of the Coal Industry Act 2001 , (or a member, director or employee of that company) in the exercise of mines rescue functions under Division 3 of Part 3, or Part 4, of that Act, or
(d) a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001 , or
(e) any person (or class of persons) prescribed by the regulations.
Clause 26 of the Health Services Regulation 2013 (NSW) says that NSW Newborn & Paediatric Emergency Transport Service (NETS) operated by the Sydney Children’s Hospitals Network (Randwick and Westmead) is a prescribed service for the purposes of s 67E(3). (I note my correspondent refers to the Neonatal & Paediatric Emergency Transport Service in NSW and the regulation refers to the NSW Newborn & Paediatric Emergency Transport Service but I infer that they are the same service and that my correspondent made an understandable error referring to it as ‘Neonatal’ rather than ‘Newborn’).
Ambulance services are ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW) Dictionary). Given the NSW Newborn & Paediatric Emergency Transport Service is an emergency transport service I infer it is transporting ‘sick and injured’ babies and children which explains why it needed an exemption from s 67E(1) of the Health Services Act. That is a very long way of concluding that theNSW Newborn & Paediatric Emergency Transport Service is an ambulance service.
That makes it an essential service (Essential Services Act 1988 (NSW) s 4(1)(e)). It is not an emergency service as defined by the State Emergency and Rescue Management Act 1989 as that Act refers to the Ambulance Service of NSW and the NSW Newborn & Paediatric Emergency Transport Service is not part of the Ambulance Service of NSW (if it was, it wouldn’t need an exemption from s 67E(1)). The Road Rules 2014 say that an emergency worker is ‘a member of the Ambulance Service’ (emphasis added). It does not say ‘an’ ambulance service so I infer that ‘the Ambulance Service’ means the Ambulance Service of NSW, again that is not the NSW Newborn & Paediatric Emergency Transport Service. The employees could be emergency workers for the purposes of the road rules if the Roads and Maritime Services have given approval for that purpose.
Finally, the NSW Newborn & Paediatric Emergency Transport Service does not report to the Minister for Emergency Services so on that definition, too, it is not an emergency service.
On the other hand, it is the NSW Newborn & Paediatric Emergency Transport Service (emphasis added) so it is providing an emergency service even if it is not ‘an’ emergency service for the purposes of those other Acts.
The answer to the question ‘is the NSW Newborn & Paediatric Emergency Transport Service legally an emergency service?’ really depends on why you want to know and what issue you are trying to address.
I confess that I suspect that the issue might be ‘are they allowed to have red/blue lights and enjoy an exemption from the road rules’. If that is the reason the question is being asked then the answer is ‘it depends on whether or not the RMS has given approval’.