Just like the virus reaching the ACT a question was, I suppose, just a matter of time. This question comes from a volunteer with NSW SES who asks about
… an SES Duty Officer asking questions of Residents to identify COVID-19 risks for them and us when managing a Request For Assistance.
The questions are similar to those being regularly asked as initial screening in medical centres and hospitals.
Are we permitted to ask questions about a Resident’s health/travel/etc. for the purposes of evaluating any biological risk to members or possibly posed by members to them?
Are we allowed to record that information in the SES job management system (Beacon)?
Are we allowed to refuse to attend a RFA should we determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with?
I’m specifically talking about Storm Response Jobs here, but if any other roles performed by NSW SES would have different answers, I’d be interested to understand that too.
The short answer is ‘no, I don’t think you can, or should, do any of those things’.
You could ask questions about the person’s travel etc but of course they’re under no obligation to answer them.
You could record that information on the SES job management system save that you would then be collecting and storing health information and, as a government agency, would be bound by the Health Records and Information Privacy Act 2002 (NSW), something NSW SES may not be familiar with or have the necessary processes to manage.
It is illegal to discriminate on the grounds of disability. Disability includes ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’ (Anti-Discrimination Act 1977 (NSW) s 4) though ‘Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health’ (s 49P).
It is also a defence if to provide services to a person would ‘impose unjustifiable hardship on the person who provides the goods or services.’ Accordingly, if would impose unjustifiable hardship on the SES the SES could refuse to provide the service; but that is not the same as saying that the unit can refuse to attend. If it was too hard for the unit, then the matter would have to be escalated and the SES would have to consider (and hopefully is considering) how it will continue to operate and provide its services to people suffering from, or quarantined because of, the covid-19 virus.
The covid-19 pandemic is a national emergency being managed by the Commonwealth. The Commonwealth has constitutional responsibility for quarantine (Australian Constitution s 51(ix)) and using powers under the Biosecurity Act 2015 (Cth). That does not mean that the states and territories are merely agents of the Commonwealth, but one can see that like all emergencies there is a chain of authority.
As with all emergencies, we should be looking for one source of truth – in this case the Commonwealth Department of Health and with respect to state responses, the State Department of Health. If a duty officer is asking questions about travel and health and then deciding ‘that the potential risk to the health of our members is greater than the reported risk posed by the situation’ one cannot know where he or she is getting the information to assess that risk. Are they basing their assessment on information provided by the Health Departments or what they read on the latest Facebook post or conspiracy page.
Further, the question of what is ‘reasonably necessary to protect public health’ is not a matter that an individual duty officer can determine but may be something that is decided by SES management in collaboration with NSW Health. Merely asserting that, in the duty officer’s view, ‘the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is’ facing is unlikely to satisfy the requirements of the Anti-Discrimination Act 1977 (NSW) s 49P.
The State Emergency Service is part of the NSW government and should be part of the whole of government response. It is up to the SES command, in collaboration with government colleagues, to determine what the SES response is to the threat of the virus. If individual duty officers start asking questions and individual units start determining how they will respond then there ceases to be a whole of government response. It would be like an Incident Controller trying to determine the objectives of the response but each individual unit deciding to do it their own way and set their own priorities. If the government sets out how it is going to respond but individual officers, make their own choices there is no whole of government response and there is potential discrimination by the Crown.
The SES has a duty to ensure, so far as is practicable, the safety of its staff and volunteers (Work Health and Safety Act 2011 (NSW)) so should be considering what its policy will be in this crisis and providing relevant PPE and instructions. If a member is concerned about the SES response, then he or she has the right and opportunity to raise those concerns through the consultation process as part of the Work Health and Safety process in place in the organisation. And SES members are volunteers, if you think the SES response is not adequate you can always choose to make yourself ‘unavailable’ for the period of the public health emergency.
A unit controller asking questions about a person’s health or travel status would expose the SES to risk both in how that information was managed and in terms of what decisions were made on the basis of that decision. It is illegal to discriminate against a person when providing services on the basis of ‘the presence in a person’s body of organisms causing or capable of causing disease or illness’. What is a reasonably necessary response to the risk in order to protect public health is not something for a duty officer/unit controller can decide nor with respect could they reasonable determine whether responding would ‘impose unjustifiable hardship on the person who provides the goods or services’ (ie the SES).
Unless, and until, those steps are adopted as part of the SES covid-19 risk management process a unit controller or duty officer:
- should NOT ask questions of residents to identify COVID-19 risks;
- should NOT ask questions about a resident’s health/travel/etc. for the purposes of evaluating any biological risk to members;
- should NOT record that information in the SES job management system; and
- should NOT refuse to attend an RFA if they determine that the potential risk to the health of our members is greater than the reported risk posed by the situation the Resident is asking for assistance with.
A unit controller or duty officer should implement the SES policy on managing the risk and it follows that in due course (ie soon if not already) the SES should be publishing policy on how it wants members to respond and to protect themselves from risk.
A duty officer setting up their own response policy will defeat the idea of a unified command that we all hold dear and is likely to expose the SES to allegations of unlawful discrimination and the community and individuals in need to further risk of fear, unnecessary distress and harm.