A member of the NSW SES has some questions relating to entry powers and rescue. My correspondent says:
I am a member of a non-rescue accredited SES unit, meaning we are not accredited by the state rescue board to carry out general land rescue. This function is performed in our area by Fire and Rescue NSW (FRNSW). Recently, we were tasked by FRNSW to assist them with a job, a bird caught on wire in a tree.
Upon arriving at the job, we soon discovered the resident on who’s land the bird was stuck did not want us to be there and would not allow us to stay. The bird was visible to us and was in clear need of rescue.
I have several questions relating to this scenario.
- Do SES units not accredited to perform rescue work still have the same rescue powers as those units when in support of the primary rescue agency?
- In what circumstances can the SES (or any other agency) enter private property to affect a rescue or similar occurrence without permission from the owner?
- What qualifies as a ‘rescue’ under the legislation, and does a bird (in this case a magpie) allow for the use of rescue powers under the relevant act.
- Do other agencies, (e.g. the RSCPA or the police) have any entry powers here and can the SES exercise these powers in support of their role?
- Assuming this is deemed a ‘rescue’, what powers do the SES have here (if any) to establish an ‘incident scene’ and perform other functions, including any powers to break objects to affect the rescue (e.g. cutting a tree branch) or removing bystanders from the situation?
Rescue squads are accredited by the Minister on the advice of the State Rescue Board (State Emergency and Rescue Management Act 1989 (NSW) ss 42-60). For the purpose of the Act rescue means (s 3) ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’. Section 52(2) adds:
An organisation, such as the Royal Society for the Prevention of Cruelty to Animals, New South Wales or the Wildlife Information and Rescue Service, that specialises in animal welfare or animal rescue operations or both does not constitute a rescue unit for the purposes of this Division.
That answers question 3, above. Rescuing a magpie, assuming it’s a wild bird and not a pet, is not a rescue for the purposes of the Act.
There are no particular powers vested in rescue squads by the State Emergency and Rescue Management Act 1989 (NSW). Whatever powers the rescue operator has comes from the Act that establishes their agency or common law. The answer to question 1 is, therefore, the members of the SES have whatever powers the State Emergency Service Act 1989 (NSW), and the common law, gives them.
For the answer to question 2 see:
- Legal authority for police to enter a burning house – is it required? (March 25, 2018);
- Forcing entry to save a life (June 3, 2016);
- Forcing entry to perform a rescue (November 13, 2014); and
- Is there a right to refuse rescue? (December 12, 2011).
- Entering private land to extinguish a fire in Melbourne (July 2, 2014); and
- Entering private land to fight a bushfire in NSW (June 16, 2013).
The problem with this scenario is that it is not a rescue. Many would suggest that animals should be considered as entities that have rights, but that is not the law. They are at best property (see Compensation for a lost dog (December 9, 2018)). That means that this animal does not have a ‘right’ to be rescued. The doctrine of necessity would still justify actions to protect a bird but the decision to override a private property owners’ insistence that you not enter would be much harder to justify given that all that is at risk is ‘mere property’ and not even private property.
The answer to question four is that an inspector appointed under the Prevention of Cruelty to Animals Act 1979 (NSW) may (s 24I):
… examine an animal if the inspector suspects, on reasonable grounds, that:
(a) an offence against this Act or the regulations is being, has been or is about to be committed in respect of the animal, or…
(c) the animal is so severely injured, so diseased or in such a physical condition that it is necessary that the animal be provided with veterinary treatment and the animal is not being provided with that treatment, or
(d) the animal is so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive, and the animal is not about to be destroyed, or is about to be destroyed in a manner that will inflict unnecessary pain on the animal.
An inspector may enter land for the purposes of making that inspection (s 24E) and may take custody of the animal (s 24J). The SES could assist if they are asked to do so and provided they are not entering residential premises (s 24M). This bird was in a tree not ‘residential premises’. It could be argued that the garden of a house is part of the ‘residential premises’ but I would not expect s 24M to be read so widely as that would defeat the purpose of the Act and it is one thing to say that the inspector cannot invite anyone into a home, it is less invasive to enter just the garden.
The Prevention of Cruelty to Animals Act 1979 (NSW) does not mention the use of force so if it was going to be necessary to break open a gate or restrain the property owner one would want to ensure that the police were there and take their advice on what is permissible.
Finally, with respect to question 5 the SES have no particular powers to be used here. The various emergency powers vested in the SES apply when there is a flood, storm or tsunami (State Emergency Service Act 1989 (NSW) s 19). There are no specific rescue powers. The authority at a rescue comes from the common law. In the Kuru v State of New South Wales (2008) 236 CLR 1 Gleeson CJ, Gummow, Kirby And Hayne JJ said (at ):
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.
There are also powers vested in police (State Emergency and Rescue Management Act 1989 (NSW) ss 60L and 61) and they may be assisted in the performance of those functions (s 61AA). Calling the rescue squad is part of that assistance but it is the police powers that are being exercised.