The first question of 2018 deals with the application of New South Wales State Rescue Board policies to agencies that attend a rescue but are not accredited rescue units, in particular NSW Rural Fire Service brigades that attend motor vehicle accidents to provide fire protection rather than rescue.  My correspondent says:

In early December 2017, it appears … [a] Regional Emergency Management Officer (REMO) from the NSW Police has sent out to at least the NSW RFS, but also it would appear other agencies, the following;

“Colleagues,

Just a reminder please to ensure that all your Units/Stations/Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages.

Annex B – Taking of Photographic Images at and from a Rescue Incident states

“B.01 – The taking of photographic images or film at a rescue incident can result in considerable undue stress to those people involved as well as their friends and relatives. In addition the taking and use of such images may be in breach of the Privacy and Personal Information Protection Act 1998 or the Occupational Health and Safety Act 2000.”

It further enhances this around the Public Display of Images by stating

“B.08 The Board considers that it is not acceptable to publicly display any images of dead or injured people. The only exceptions are when such images are presented in court or with the written permission of the NSW Police Force Commissioner.

B.09 Public display includes:

1. publication in State Rescue Board or Emergency Service Organisations books, manuals, journals, videos, or other publications that can or could be accessible to the public;

2. publication in external publications such as newspapers, journals or conference papers;

3. use of images on display stands at events;

4. images displayed in premises used by Board accredited rescue units including notice boards, lockers, etc;

5. images on internet sites; and

6. any other use where the images would be accessible by the public. “

I do not want for any of your workforce to be compromised or have official action taken against them for breach of this policy.

Regards

However, it seems that the REMO has conveniently forgotten to include

 “B.02 Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.”

which of course would mean that the REMO’s statement “that all your Units / Stations / Brigades who have accredited Rescue Units or resources that attend Rescue Jobs are meeting with the State Rescue Board Policy regarding photos taken at Rescues” is in fact not correct in respect of the (non SRB accredited) “resources that attend Rescue Jobs”, a typical example being the RFS attending to provide fire protection.

Now, I’m not advancing any argument that non accredited units should in principle act any differently to SRB accredited units with regard to images and the publication of the same (although I contend the relevant policy in those circumstances is the RFS Service Standard 1.4.5 Social Media which you can find here; https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0007/8827/SS-1.4.5-Social-Media.pdf.

I’m also aware of the powers of NSW Police Officers to seize any still or video images of an incident scene as potential evidence.

I’m purely interested in the legal aspect of the REMO’s email and the applicability to non SRB rescue RFS units (currently all brigades except Mungindi RFB).

Therefore my questions are;

(1) Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

(2) What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

(3) Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

(4) Are there any other issues in connection with this you think of relevance?

The law and policy framework

The State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’)

When first enacted, s 26 said:

(1) The State Emergency Service is to provide executive support facilities for each District Emergency Management Committee and District Emergency Operations Controller in its area.

(2) The principal executive officer is to be known as the District Emergency Management Officer.

In 1995 the reference to the State Emergency Service was removed and instead it was the Police that were to provide the executive support and the District Emergency Management Officer (State Emergency Legislation Amendment Act 1995 (NSW), Sch 1 [13] [14]).  In 2012 the word ‘District’ was replaced by the word ‘Region’ and s 26(2), that is the definition of District Emergency Management Officer was repealed (Emergency Legislation Amendment Act 2012 (NSW), Sch 3 [12] [16] [24]).  Today s 26 says ‘The NSW Police Force is to provide executive support facilities for each Regional Emergency Management Committee and Regional Emergency Operations Controller in the region concerned’ but there is no specific title of Region Emergency Management Officer or REMO.

Today there is still reference to the office of REMO in the NSW State Emergency Arrangements.  Frequently Asked Questions on the Regional Emergency Management Planning Guideline say:

Who is responsible for the overall completion of the Regional EMPLANs?

The SERM Act 1989 requires the NSW Police Force to provide ‘executive support’ to the REMC and Regional Emergency Operations Controller (REOCON). This role is known as the Regional Emergency Management Officer (REMO). Within this planning process, the REMO is responsible for facilitating and collating the Regional EMPLAN for endorsement.

(See also the multiple references to the REMO in the Regional Emergency Management Planning Guideline, 2016).

It is not explained in the Minister’s second reading speech (NSW, Parliamentary Debates, Legislative Council, 22 August 2012, pp. 14161-2 (Michael Gallacher, Minister for Police and Emergency Services)) why the title was removed from the Act but we can infer (given that there a number of people who hold the office of REMO) that the position continues as an administrative position. The deletion of s 26(2) didn’t abolish the position or the role, it just removed the statutory requirement to use the title ‘Region Emergency Management Officer’ but that title does still remain and the REMOs continues to provide administrative support to the relevant Regional Emergency Management Committee (s 22) and the Regional Emergency Operations Controller (s 24).

The SERM Act 1989 (NSW) also creates the State Rescue Board (SRB) and provides for the accreditation of rescue units.   It is a function of the SRB to produce relevant policies ‘to promote the provision of comprehensive, balanced and co-ordinated rescue services throughout the State’ (s 48).

The establishment of Regional and Local Rescue Committees is provided for in s 48A.  Section 48A(4) says: ‘Rescue committees are to assist the State Rescue Board in the exercise of its functions within the region or local government area concerned.’

Finally, s 49 says:

(1) The agency which manages or controls any accredited rescue unit is required to implement (in accordance with law) the decisions of the SRB under this Part in connection with rescue operations carried out by that rescue unit.

(2) Except as provided by subsection (1), nothing in this Part affects the exercise by such an agency of its functions or the exercise of the management functions of the chief executive of the agency.

State Rescue Policy

The New South Wales State Rescue Policy (v 3.5, 13 December 2015) can be found at https://www.emergency.nsw.gov.au/Documents/publications/policies/State-Rescue-Policy.pdf.  Clause 5.08 says:

The Chairperson of each Regional Rescue Committee has the services of the Regional Emergency Management Officer (DEMO) to assist them with rescue matters; provide operational assistance; support Local Rescue Committees; and provide executive support to the Regional Rescue Committee.

Like other aspects of the Rescue Policy this appears to be out of date.  The fact that they have retained the DEMO (rather than REMO) acronym suggests that this clause is a holdover from before the 2012 amendments but as noted above, the office of REMO continues even if the title is no longer provided for in legislation.

Clause 1.55 of the policy says:

The Board’s policy in relation to the taking and use of photographic images by State Rescue Board registered rescue operators at any rescue incident is specified at Annex B.

Annex B (pp. 30-32) sets out the policy on Taking of Photographic Images at and from a Rescue Incident.   As my correspondent has noted, clause B.02 says:

Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident.

The conclusion so far

What this allows us to conclude is:

  1. The SRB is responsible for developing policies relevant to rescue and they have created the policy on Taking of Photographic Images at and from a Rescue Incident.
  2. Agencies which control accredited rescue units are required to comply with SRB policy ‘connection with rescue operations carried out by that rescue unit’.
  3. The REMO is to assist the Regional Rescue Committee in meeting its tasks.

By inference then it is appropriate for the REMO to remind agencies that operate accredited rescue units ‘to ensure that all your Units/Stations/Brigades who have accredited Rescue Units … are meeting with the State Rescue Board Policy regarding photos taken at Rescues and subsequently posting them on Facebook Sites or Internet pages’.

The controversial issue is whether that advice extends to ‘resources that attend Rescue Jobs’ eg NSW RFS units that are not accredited rescue units and who attend in order to provide fire protection.

Discussion

The obligation to comply with SRB policy is directed to the agency that operates an accredited rescue unit (which now includes the RFS) rather than particular rescue squads but the obligation to implement Board policy is only ‘in connection with rescue operations carried out by that rescue unit’ (s 49(1)). Further that obligation does not affect ‘the exercise by such an agency of its functions’.

It is a function of the NSW Rural Fire Service (‘the RFS’) ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a) and see s 9(4) for the definition of ‘rural fire services’).  An RFS appliance that attends an accident to provide fire protection is exercising a function under s 9(1)(a) and to that extent s 49(1) of the SERM Act and the obligation to comply with SRB policy would not apply.

On the other hand, the RFS may be called to assist in a rescue, eg to provide resources and labour that are not related to fire protection.  Assisting other emergency services is also a function of the RFS (Rural Fires Act 1997 (NSW) s 9(1)(b)). Where an RFS brigade is attending to assist the accredited rescue unit, rather than to provide fire protection, then it is appropriate to consider that they are acting under the control of the rescue unit. The obligation is upon the rescue unit to ensure that the SRB policy is applied so if the rescue squad became aware that someone they had asked to assist was taking photos or, later, displaying photos, then it would be incumbent on the squad, and ultimately the agency that operates the squad, to take steps to stop that behaviour.  Where the RFS is assisting a rescue squad (noting that they do not provide fire protection to assist a rescue squad) then the rescue squad has an obligation to ensure the policy is applied.  No doubt that would be made easier if, as suggested by the REMO, operators who might be called to assist are reminded of the terms of the policy.

Conclusions

I think the issue is really what is meant by ‘resources that attend Rescue Jobs’ and what is a rescue job.  A motor vehicle accident involves many ‘jobs’. There is the job of the paramedics to provide emergency medical care, the job of the fire brigade to provide fire protection, the job of police to coordinate the rescue, manage traffic and conduct investigations and the job of the rescue squad to effect the rescue.  I would suggest that an RFS unit that is attending the scene to provide fire protection is not attending a rescue job, even if a rescue is taking place.  The SRB policy won’t apply in those circumstances but the RFS service standard will.

On the other hand, the RFS may attend to assist the rescue squad, eg to provide labour to help carry a person out of the danger area. In that case they are attending a rescue job.

A way to see the difference may be to consider issues of ‘command’ and ‘control’.    When providing fire protection the RFS are not subject to direction from the rescue squad, they can stand-by with their fire hoses at the ready, but the rescue occurs independently of them. They are in ‘control’ of the fire operations if not the whole scene.  On the other hand when RFS members roll up their sleeves and are subject to direction by the rescue squad – hold this, go there, do that – then they are attending the rescue job.  They are not directly bound by the SRB policy but the rescue squad is, so it would be incumbent on the rescue squad commander to stop an RFS member taking photos and also to take it up with an RFS commander if there is a discovered breach of the policy with respect to images that are taken.

Let me then go to the specific questions:

1. Can a REMO lawfully interpret the SRB Rescue Policy with respect to Annex B which specifically states only “Members of accredited rescue units are to comply with the directions of this policy in relation to the taking of photographic images or film at a rescue incident” as having a wider application than the policy explicitly states to include non SRB accredited units (“or resources that attend Rescue Jobs”)?

I think the REMO can if one takes a narrow view of what it is to attend a ‘rescue job’. Just because a rescue is taking place does not make it a ‘rescue job’ but if the crew are involved in the rescue, not merely being ‘near’ the rescue whilst performing their statutory function of fire protection then that does seem an appropriate extension.  But in that case the obligation is upon the rescue squad and the agency that operates the squad to ensure that those that are assisting in the rescue are not stopping to take photos.

What the REMO is doing, I suggest, is asking agencies to remind their staff that this does exist and to ask them to comply to assist the rescue squads in their task.

2. What sort of ‘official action’ could a REMO under State Rescue Policy take against a member of a non SRB accredited RFS brigade?

The REMO is an administrative officer.  He or she have no official ‘power’.  The REMO may bring an alleged breach to the attention of the relevant agencies but the resolution would be up to them and ultimately the SRB.  No doubt if there was an issue the rescue agency would take it up with their colleagues in the other agency for example if the rescue squad was operated by the SES and they asked RFS members to assist, the issue would be between the SES and the RFS and no doubt it would be dealt with by relevant officers in each agency rather than ‘official’ action by the REMO or the SRB.  The issue is not one of ‘official action’ between state operated emergency services but rather cooperation.  The non-accredited member can’t be stripped of accreditation as a rescue operator but that is hardly to the point.

The REMO doesn’t however say ‘I do not want for any of your workforce to be compromised or have official action taken against them, BY ME, for breach of this policy.’  The reference to office action could include action taken by the member’s own agency, which leads to the next question.

3. Could the NSW RFS legally use Annex B of the State Rescue Policy as opposed to state NSW RFS policy (SS1.4.5 etc) in any disciplinary action against a member of a non SRB accredited unit?

I don’t think they could directly, as a member of the RFS who is not a member of a rescue squad is not directly bound by the policy and certainly not if they are providing fire protection.  But whether they are providing fire protection only, or actually assisting the rescue squad, taking photos of the rescue and posting them on boards or on social media is likely to breach the RFS Service Standard, in particular it may:

a. bring the NSW RFS into disrepute [particularly where it embarrasses another agency by suggesting the rescue squad has failed to ensure that those assisting do not take inappropriate photos];

b. could reasonably be found to breach the NSW RFS Code of Conduct and Ethics;

c. are not consistent with the NSW RFS Organisational Values;

d. depicts the NSW RFS in an unprofessional light;…

g. portrays content of a confidential or sensitive nature such as serious or critical injury, fatalities or incidents that are under investigation;

h. could reasonably be found to cause distress to members of the community …

If I was advising the RFS and they were seeking to discipline a member for breach of the SRB Policy, I would indeed recommend that they phrased the alleged breach as a breach of the RFS Service Standard, but the fact that it was contrary to the SRB policy, particularly if that policy has, as suggested by the REMO been brought to their attention, would be part of the case to demonstrate that the conduct did indeed breach that Service Standard.

4. Are there any other issues in connection with this you think of relevance?

I think I have addressed them in the discussion of what it might mean to attend a ‘rescue job’.