Today’s correspondent has:

… some basic questions about the powers to exercise control at an emergency in South Australia. The example I will cite is as follows:

The SAMFS [South Australian Metropolitan Fire Service, hereafter ‘the MFS’] attended a burst water pipe in a premises (within a fire district) and in South Australia this event type also generates a response from the SES [State Emergency Service] (flooding).

The MFS arrived just before the SES and controlled the water flow with a wooden spike and had made contact with the premises owners to attend and remediate the relatively small amount of water on the floor.

When the SES arrived the OIC of the MFS appliance (the IC) stood them down as they were no longer required. The SES officer, after a phonecall from his district officer (fulltime position) asked the MFS to stand down as the incident involved a flooding and as such was under the control of the SES (Control agency named in the SA SEMP for “flood”) the MFS officer declined stating that the incident was within the capability of the MFS and as such the SES would not be required.

There has been a recent spate of incidents of this type of nature where the SES have cited their “control agency” status as being the responsible agency to deal with relatively minor incidents in MFS and CFS areas inclusive of technical rescue events (high angle, confined space etc).

My question is with regard to the FES act, specifically Div 6, subdiv 1, 41 which implies that if the “emergency” is in a fire district and an MFS brigade has attended then the MFS is to be considered the control agency, subject to the provisions of the EM Act.

The EM act states at Div 2, 20 that control agency status is assigned under any “Act” or Law or the SEMP, in this case the relevant sections of the FES Act.

Questions which arise:

1)         Does the SES have the authority to exercise their control agency status for “flood” in MFS/CFS areas, if an MFS/CFS appliance is on scene.

2)         What is the inferred definition of the term ”flood” as specified in the SEMP eg: does this apply to a burst water pipe in a house or is this more geared towards a river bursting its banks? (I suspect the latter).

3)         Does the MFS have the authority to assert control agency status over all “emergencies” and therefore other agencies (CFS, SES etc) within a fire district where the agency (MFS) attends? (Terrorism or other police matters excepted.)

4)         Am I interpreting the EM and FES Acts correctly in making the inference that one effectively refers to the other in determining control agency status.

Relevant law

Fire and Emergency Services Act 2005 (SA)

The MFS and the SES are both established and governed by the Fire and Emergency Services Act 2005 (SA)     Both are subject to direction from the South Australian Fire and Emergency Services Commission (s 9). The MFS is established (s 26) to:

(a)       to provide services with a view to preventing the outbreak of fires, or reducing the impact of fires, in any fire district;

(b)       to provide efficient and responsive services in any fire district for the purpose of fighting fires, dealing with other emergencies or undertaking any rescue;

(c)       to protect life, property and environmental assets from fire or other emergencies in any fire district;

(d)       to develop and maintain plans to cope with the effects of fires or emergencies in any fire district;

(e)       to provide services or support to assist with recovery in the event of a fire or other emergency in a fire district;

(f)        to perform any other function assigned to SAMFS by or under this or any other Act.

The SES is established to (s 108):

(a)        to assist the Commissioner of Police in dealing with any emergency;

(b)       to assist the State Co-ordinator, in accordance with the State Emergency Management Plan, in carrying out prevention, preparedness, response or recovery operations under the Emergency Management Act 2004;

(ba)      to assist the Chief Executive within the meaning of the South Australian Public Health Act 2011, in accordance with the Public Health Emergency Management Plan, in carrying out prevention, preparedness, response or recovery operations under Part 11 of that Act;

(c)        to assist SAMFS and SACFS in dealing with any emergency;

(d)       to deal with any emergency—

(i)        where the emergency is caused by flood or storm damage; or

(ii)       where there is no other body or person with lawful authority to assume control of operations for dealing with the emergency;

(e)        to deal with any emergency until such time as any other body or person that has lawful authority to assume control of operations for dealing with the emergency has assumed control;

(f)        to respond to emergency calls and, where appropriate, provide assistance in any situation of need whether or not the situation constitutes an emergency;

(g)       to undertake rescues;

(h)       to perform any other function assigned to SASES by or under this or any other Act.

Key terms are ‘emergency’ and ‘flood’. An emergency (s 3) is:

… an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause—

(a)        the death of, or injury or other damage to the health of, any person; or

(b)       the destruction of, or damage to, any property; or

(c)        a disruption to essential services or to services usually enjoyed by the community; or

(d)       harm to the environment, or to flora or fauna;

A burst water main with water entering a home would appear to be an emergency (subparagraphs (b) and (c) above). If that is the case it might fall within the MFS responsibilities (s 26(b) and (c)).

If the burst water main is creating a flood, then it is a matter within the responsibility of the SES (s 108(d)(i)). Flood is not defined in the Act.

Emergency Management Act 2004 (SA)

The Emergency Management Act 2004 (SA) provides for the creation of the State Emergency Management Plan (‘the SEMP’; s 5A). The plan is to, inter alia, include strategies (s 5A(1)):

…

(c)        for the containment of emergencies; and

(d)       for the co-ordination of response and recovery operations; and

(e)        for the orderly and efficient deployment of resources and services in connection with response and recovery operations.

SA Police are the coordinating agency for all emergencies unless a different agency is appointed as the ‘coordinating agency’ in the SEMP (ss 19(1) and (2)).

Section 20 says:

(a)        if, under an Act or law or the SEMP, a particular person or agency is assigned the function of exercising control of persons and agencies involved in response operations relating to such an emergency then that person or agency is the control agency for that emergency;

(b)       if, under an Act or law or the SEMP—

(i)        2 or more persons or agencies are assigned the function of exercising control of persons and agencies involved in response operations relating to such an emergency; or

(ii)       it is unclear which person or agency is assigned that function in relation to such an emergency; or

(iii)      no person or agency is assigned that function in relation to such an emergency,

then the control agency for that emergency will be a person or agency determined by the co-ordinating agency.

We have seen that one of the functions of the SES is ‘to deal with any emergency— (i) where the emergency is caused by flood …’ (Fire and Emergency Services Act 2005 (SA) s 108). That section does not use the term ‘control agency’ but it might be inferred that, despite the difference in language, it is the intention that the SES are the control agency for ‘flood’ (noting that the term flood is also not defined in the Emergency Management Act 2004 (SA) so we do not, yet, have a definition of ‘flood’).

The SA Emergency Management Plan

This plan can be accessed online. Part 2, detailing Emergency Management Arrangements provides that the SES is the control agency for floods. The control agency is to ‘take control of the response to the emergency (including the appointment of an incident controller and incident management structure)’ (p. 18). The MFS is the control agency for ‘urban fire’.

The plan confirms that no agency has been appointed as a coordinating agency for any particular hazard. South Australia police remains the coordinating agency for all emergencies (pp. 15, 23 and 59).

What follows is that if the leaking water is causing a flood, then the SES is the control agency. If it is not a flood then there is no clear control agency and in the event of confusion between SES and MFS, it is up to the police as coordinating agency to determine who is the control agency for that emergency. Flood is not defined the Emergency Management Plan.

The ‘Hazard Leader’ for flood is the Department of Environment and Water (SEMP Part 2, p. 14). The Hazard Leader is required to:

1.         Undertake a leadership role for the planning of emergency management activities pertaining to its appointed hazard.

2.         Prepare, review and maintain a Hazard Plan for its assigned Hazard according to Part 4 of the SEMP…

The Department defines flood as:

the covering of normally dry land by water:

    • that has escaped or been released from the normal confines of:
      • any lake, river, creek or other natural water course, whether or not altered or modified;
      • any reservoir, canal or dam;
      • coastal or marine waters on to land; and
      • pipes, dams, levees or other infrastructure due to structural failure, operations, malfunction, accident or other reasons.
    • flowing overland:
      • towards a watercourse, lake, coast/marine water or other water body;
      • and/or from a watercourse or drain that is blocked.

They make mention of different types of flooding, including flooding caused by ‘Infrastructure failure’. That is:

…when infrastructure including levees, dams and pipes fail due to lack of maintenance, age, poor operation, climate impacts or extreme circumstances including other natural disasters such as earthquakes.

On that definition water flowing from a burst water pipe, over normally dry land, is a flood caused by infrastructure failure.

Back to the questions

I can now answer my correspondent’s questions. My correspondent begins with:

My question is with regard to the FES act, specifically Div 6, subdiv 1, 41 which implies that if the “emergency” is in a fire district and an MFS brigade has attended then the MFS is to be considered the control agency, subject to the provisions of the EM Act.

Section 41 of the Fire and Emergency Services Act says:

(1)       This section applies in relation to any situation that may involve an emergency.

(2)       If—

(a)        the situation—

(i)        involves or arises from—

(A)      a fire or a situation that involves imminent danger of fire; or

(B)       the escape of any hazardous material or a situation that involves imminent danger of such an escape,

that occurs—

(C)       in a fire district; or

(D)      on a vessel; or

(E)       in the country in a situation where no member of SACFS has assumed control under Part 4; or

(ii)       involves or arises from any other emergency or the imminent danger of any other emergency, wherever occurring, at which a person with lawful authority to assume control has not done so; and

(b)       an SAMFS brigade has attended,

then the highest ranking officer of SAMFS in attendance may assume control (and all members of the brigade, and all other persons present at the scene, will be subject to his or her control).

(3)       Nothing in this section—

(a)        derogates from the powers of the Chief Officer of SAMFS to assume control of any operations; or

(b)       prevents a member of SAMFS who has taken control of any operations surrendering control of those operations to any other person or body; or

(c)        prevents another person or body with lawful authority to do so assuming control at the scene of any emergency.

(4)       This section operates subject to the provisions of the Emergency Management Act 2004.

Section 41(2)(a)(i) does not apply as we are not talking about an emergency caused by fire or release of hazardous materials. (Of course flood waters are hazardous but I will assume without going through all the definitions that this is not what is meant by ‘hazardous materials’ nor what is covered in HAZMAT training).

Section 41(2)(a)(ii) applies in that there is an emergency and no-one with other lawful authority has arrived. In that case the MFS can assume control of the emergency (s 41(2)(b)). But s 41(3) goes onto say that this does not stop the MFS handing over control nor does it stop ‘another person or body with lawful authority to do so assuming control’ (s 41(3)(b) and (c)). In effect the MFS can assume control until the nominated control agency arrives and takes control.  It follows that s 41 does say that ‘if the “emergency” is in a fire district and an MFS brigade has attended then the MFS is to be considered the control agency’ but as my correspondent has noted, this is ‘subject to the provisions of the EM Act’. The Emergency Management Act via the SEMP appoints the SES as control agency for floods and s 41(3) provides that the authority of the MFS applies until the control agency elects to exercise that control power.

Section 117(2) says:

If—

(a) an emergency has arisen or is imminent; and

(b) no other body or person has lawful authority to assume control, or a body or person with lawful authority to assume control has not done so; and

(c) an SASES unit has attended,

then the most senior member of SASES in attendance may assume control (and all members of SASES, and all other persons present at the scene, will be subject to his or her control).

If s 41 implies that the ‘MFS have the authority to assert control agency status over all “emergencies” and therefore other agencies (CFS, SES etc) within a fire district where the agency (MFS) attends’ then it would follow that s 117 would imply that the SES have the authority to assert control agency status over all “emergencies” and therefore other agencies (CFS, MFS etc) anywhere where the SES attends. I don’t think the MFS would for a moment think the SES should take control of an urban fire just because they were first on scene and began to exercise control relying on s 117. 

Let me then turn to the specific questions:

1)         Does the SES have the authority to exercise their control agency status for “flood” in MFS/CFS areas, if an MFS/CFS appliance is on scene.

Answer: Yes. The SES are the control agency for floods. The Fire and Emergency Services Act allows the MFS to assume control if they are first on scene but it also allows the nominated control agency, the SES, to assume control when they arrive. The SES are the control agency for floods wherever they occur.

2)         What is the inferred definition of the term ”flood” as specified in the SEMP eg: does this apply to a burst water pipe in a house or is this more geared towards a river bursting its banks? (I suspect the latter).

The relevant definition of flood is the definition given by the Hazard Leader, the Department of Environment and Water. A burst water pipe leading to water over normally dry land, whether it goes into a house or not, is a flood.

3)         Does the MFS have the authority to assert control agency status over all “emergencies” and therefore other agencies (CFS, SES etc) within a fire district where the agency (MFS) attends? (Terrorism or other police matters excepted.)

No. The MFS can act as the control agency pending the exercise of control by the SES but they cannot exercise that status ‘over’ the other agencies. Such a conclusion would be inconsistent with the entire emergency management planning arrangements. If that were the case the SEMP would not apply in a fire district and that is clearly not what is intended.

Section 117 of the FES Act is in similar terms to s 41 and allows the SES to take initial control of any emergency. If it were correct that the MFS had authority over all emergencies because they were first on scene then it would be equally correct that the SES could insist on retaining control over a small fire even if the MFS arrived on scene. Neither ss 41 nor 117 have the effect suggested.

4)         Am I interpreting the EM and FES Acts correctly in making the inference that one effectively refers to the other in determining control agency status.

Yes the Acts work together to determine the control agency, but the FES Act is subject to the EM Act. The control agency for floods is the SES but the MFS can assume control at a flood until the SES get there, in the same way the SES could assume control at an urban fire until the MFS get there (s 117). First on scene can and should try to assert some control to bring order to the scene.

The MFS is the control agency for urban fire. Reading the EM and FES Acts together confirms that the SES is the control agency for floods, even if they occur in a fire district.

For related posts see:

The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015).

Flood or hazmat? (July 18, 2017).