This question comes from a NSW SES volunteer so I’ll answer it with an SES focus. The question is:

A few of us were wonder about the powers of an Emergency Officer in NSW as per the SERM Act, but more so the appointment.

As per the Act

An emergency services officer is (s 32A):

(a) a police officer,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit commander,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer,

(f) a member of the Ambulance Service of NSW of or above the rank of station officer.

If in ongoing incident, that may only be a “Level 2” size incident, under AIIMS, often I would assume the role of Incident Controller if it was a storm/flood etc. When I go off shift or not available, generally one of the Unit Deputies would become the Incident Controller.

So technically, that Deputy does not have the power of an Emergency Services Officer, so I would assume that any issue that requires that authority, that person would have to raise the issue back to me or another Unit Commander or above. Would that be the case?

I don’t really see it as an issue as if it is a large operation, it would generally be ramped up and I would only be called a Divisional Commander for my LGA and SES would run the IC at a Zone level. But, I thought it may have been wise for the SES to have Deputy Unit Commanders (like Deputy Captains are in the RFS) appointed as Emergency Officers.

There are two confusingly similar concepts here.  Emergency Services Officer is defined, as my correspondent has noted, in s 32A of the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).   The role of the emergency services officer is only relevant during a declared state of emergency when the Minister can authorise those officers to take various measures to combat the emergency or ensure public safety (see SERM Act ss 37 and 37A).

Confusingly, the State Emergency Service Act 1989 (NSW) (the SES Act) s 15 refers to emergency officers.  An emergency officer is any person appointed by the Commissioner of the SES as an emergency officer.

You can see the confusion in the question I was asked  – my correspondent wrote (emphasis added):

A few of us were wonder about the powers of an Emergency Officer in NSW as per the SERM Act, but more so the appointment.

As per the Act

An emergency services officer is …

But the terms ‘emergency officer’ and ‘emergency services officer’ do not meant the same thing.  Then to add further complexity there is the position of ‘senior emergency officer’ – see NSW SES Emergency and Senior Emergency Officers, and the police (July 10, 2014).

If there is an event, that is not a declared state of emergency and the SES is the combat agency (SES Act s 19) then the various incident controllers are acting as the Commissioner’s delegate (ss 13 and 20) and the deputy unit controller may well be (if they are not all, already) appointed as an ‘emergency officer’ even if he or she is not an ‘emergency services officer’ or a ‘senior emergency officer’.  As the Commissioner’s delegate, he or she can take the action that the Commissioner can take (ss 22 and 22A).

In short a deputy unit controller appointed as the incident controller does not need the powers of an ‘emergency services officer’ as he or she has the powers of the Commissioner (subject of course to any limitations in their appointment or directions from the Commissioner).

In the event of a declared state of emergency an emergency services officer only has the powers given him or her by the Minister (or the Minister’s delegate). The Minister cannot give authority to act under the SERM Act ss 37 and 37A to a deputy unit controller, but even in those circumstances the SES and other emergency services Acts continue to apply, so the Commissioner can still delegate his or her authority under the SES Act to the Deputy Unit Controller or other emergency officers.

Further, under AIIMS the incident controller does not need all the powers.  The IC may create the plan but he or she may have to call on others.  In a simple flood an SES member may be the IC but he or she may, having decided that a road needs to be closed, have to ask the council as the roads authority to exercise their power to close the road.   Equally if in a state of emergency the deputy commander is the IC he or she may determine that a road needs to be closed and then ask the police or other senior emergency officer to give effect to the action plan and exercise their powers.

Conclusion

A person does not need to be an emergency services officer (as defined by the SERM Act s 32) to be an emergency officer (as defined by the SES Act s 15) and to exercise powers delegated to that person by the Commissioner of the SES under the SES Act.