This question arises out of recent storm events across NSW. My correspondent received an email from a NSW SES Local Commander that said, in part (emphasis added by me):
… As the combat agency, we own all jobs that are called in or received until such time as they are completed. Jobs ARE NOT complete when we refer them to Essential Energy, our local council or Enviro Frontier. They are just referred to an organisation that is assisting us to complete the task – WE STILL OWN IT…
The important thing is that we (SES) still own the job and are liable and it CANNOT be marked as complete until such time as completion has been confirmed with the referee, i.e. council, Essential Energy, Enviro Frontier or whomever the job was referred to. In most instances that entails a return telephone call to the assisting organisation and obtaining confirmation of completion.
My correspondent says:
Hi Michael, I thought if a job is referred to, and accepted by, another agency then they have accepted the tasking. Is it then up to us to confirm that the job FRNSW, RFS, or Councils, have done what they said they would do?
On an initial point I do wish people did not use legal terms of art – such as ‘liable’ or ‘duty of care’ when that is never really the issue. Raising legal issues, in this case ‘we (SES) still own the job and are liable’ is in my view either misplaced or trying to scare people into compliance. Make the argument on what is good practice rather than raise issues of ‘liability’.
To now turn to the question. I did write about a similar issue in Clearing up storm damage and the role of the property owner in NSW (August 18, 2014). There the issue was whether there was a duty to follow up referral of jobs to local governments etc when the damage was on their land. That’s slightly different to the situation described here but I think the principles are going to be the same.
The starting point is the State Emergency and Rescue Management Act 1989 (NSW). That Act says (s 3) that the ‘combat agency’ is ‘the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency’. Control ‘means the overall direction of the activities, agencies or individuals concerned’ and controlling has to have the meaning of exercising ‘control’. The SES is the combat agency for the response to storms (State Emergency Service Act 1989 (NSW) s 8(1)(a); NSW Emergency Management Plan, Annexure 3).
I don’t know what it means to say the SES ‘own the job and are liable’. Liable for what? The SES role is to set the ‘overall direction of the activities, agencies or individuals concerned’. To set the priorities of the coordinated response. It doesn’t mean the SES have to do every job, hence the SES can and does make use of its own assets (SES units) as well as assets from the RFS, FRNSW, councils etc. How the SES choses to assign tasks and what procedures it has is a matter for the SES.
It makes sense that the SES wants to know when a team to which a task has been allocated has been completed. It would want to know because it is poor customer service if a person rings back in 48 hours and asks ‘where are you?’ when the coordinating team thought the job was done. Government agencies also want to keep statistics because it is important for accounting within the agency, for reporting to government on what they are doing and keeping the Minister informed and important for reporting to the public. It is also important for planning to know at any given time what jobs are still outstanding.
It also makes sense to me that the local coordinating team would want to know from everyone, whether it’s an SES unit, an RFS brigade, a power supply authority etc when the jobs they have tasked them with are complete. They could have SOP’s that say those agencies should report ‘job done’ but they have less interest than the SES has, so it makes sense that the SES may have a procedure that if the job hasn’t been reported as complete within a reasonable time frame, you may ring back to check its status.
There must also be times when the job is not an SES job. Someone may ring 132 500 to report a power line down in a storm and the SES may ring the electricity supply authority to report that. Is that really an ‘SES job’? The relevant authority own the poles and wires and it’s their job to go and make it safe and restore power. There’s nothing the SES is going to do to restore power if the power authority does not. R
I think the important thing to note, from the point of view of this blog, is there is no clear legal obligation to ring the agency that was tasked with the job to confirm that it is complete. That the SES choses to implement a policy to that affect in order to be able to ‘close the loop’ and report another job well done, that is a matter for them and does make some sense.
If a job is referred to, and accepted by, another agency then it is up to the SES to confirm that the agency (FRNSW, RFS, or Councils) have done what they said they would do if that is the way the SES choses to manage its business. As I said in my earlier post:
The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20). If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)).