Today’s correspondent identifies an:
… apparent contradiction (under certain circumstances) between the Fire and Rescue Act 1989 (NSW), and FRNSW’s SOG 1.2 Incident Command. Specifically in situations where a retained Brigade is in attendance at an incident (with a retained member eg: Captain acting as Incident Commander/IC), and then a permanent brigade (or officer) arrives at the incident.
Under s13(1)(b) and 13(2)(b) of the Act, it appears clear that the Officer in Charge (OIC) is to control and direct operations, and that the OIC (where both permanent and retained brigades are present) must be the permanent brigade’s OIC, (ie a Station Officer, Inspector, etc). Under the Act, there appears to be no option for a retained OIC to be in control if a permanent brigade is present.
However, SOG 1.2 states that a higher ranking officer may take over command, but can choose not to (ie: they can choose to delegate command), and in fact it suggests that they not take command except under certain circumstances. I can find no reference (in the Act or otherwise) allowing one to delegate command from permanent to retained, however there is a general delegations clause. I don’t know whether that applies in this instance.
My concerns surround liability and responsibility at a serious incident, should that incident be subject to court proceedings or other investigation. If a permanent officer remains in attendance at the incident, but has not taken command (per SOG 1.2), could that officer still be deemed (by the court, coroner etc) to be the OIC under the Act, and therefore bear legal responsibility for the incident, even though they have not taken command?
Relevant sections from the Act and SOG below:
Fire and Rescue NSW Act 1989 (NSW):
13 General powers of officers at fires and hazardous material incidents
(1) At a fire, the officer in charge—
(a) may take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire, and
(b) is to control and direct the operations of any fire brigade.
“officer in charge”, in relation to a place at which a fire brigade is present, means the Commissioner or, if the Commissioner is absent—
(a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or
(b) if no members of a permanent fire brigade are present, the person for the time being in charge of any members of a retained fire brigade present at that place.
(1) The Commissioner may delegate to an authorised person any of the Commissioner’s functions under this or any other Act or the regulations, other than this power of delegation.
(2) A delegate may sub-delegate to an authorised person any function delegated by the Commissioner if the delegate is authorised in writing to do so by the Commissioner.
(3) In this section—
“authorised person” means—
(b) a member of staff of Fire and Rescue NSW, or
(c) a member of a fire brigade.
A later arriving officer of a higher rank than the IC may take over command, or may take on another role when the strategic level of the incident structure is escalated. If taking over command, the officer should receive a handover situation report. If not taking over command, the officer must delegate command.
Later arriving officer of higher rank
If you arrive at an incident and an IC is in place but you are of a higher rank than the IC:
- Inform FireCOM that you are on scene, but are not the IC.
- Contact the IC and inform them that you are on scene. Request a handover situation report.
- Review the handover situation report and decide whether to take over as IC. Take over as IC only:
− If requested by the existing IC, or
− If doing so will lead to a better outcome for the incident, or
− If you are escalating the incident structure to improve strategic level management of the incident.
- If taking over as IC:
− After handover, inform the current IC and FireCOM that you are now the IC.
− Operate in the stationary command position and take over incident management.
− Review the strategy, the incident critical factors, current IAP and its progress, and the position and function of all resources.
- If not taking over as IC:
− Inform the current IC and FireCOM that you are not taking over as IC and are delegating command.
− Wait for deployment by the current IC or give assistance as requested. Alternatively, leave the incident scene.
− Do not deploy resources or use the authority of your rank to make or implement strategic incident management decisions. If you believe this is necessary, you must assume the role of IC.
I do not think there is any contradiction, rather I think there is a misunderstanding of the meaning of ‘Incident Controller’ (IC) as defined by the Australasian Inter-Agency Incident Management System (AIIMS), the role of the Commissioner and others in the ‘chain of command’ and the meaning of ‘officer in charge’ in the Act. Let me explain.
The confusion can be seen in the question (emphasis added):
If a permanent officer remains in attendance at the incident, but has not taken command (per SOG 1.2), could that officer still be deemed (by the court, coroner etc) to be the OIC under the Act, and therefore bear legal responsibility for the incident, even though they have not taken command?
I answered a similar question with respect to the NSW Rural Fire Service (see Rank v responsibility; law v policy (October 2, 2015)). There I said:
… AIIMS (4th ed, p 12) says ‘An Incident Controller is appointed for every incident and is responsible and accountable for all of the functions of incident management’. Readers of that manual would be forgiven for thinking that position reflects, or is reflect in, the law but that is not the case. The role of ‘Incident Controller’ is not expressed in law. If a matter goes ‘pear shaped’ the person who will always be ‘responsible’ is the Commissioner. The chief officers of Victoria Police, the Country Fire Authority and the Department of Sustainability and Environment certainly discovered during the 2009 Victorian Bushfires Royal Commission that responsibility rested with them, not with their appointed incident controllers (for further discussion on the relationship between the IC and the chain of command see my book Emergency Law (Federation Press, 4th ed, 172-173).
So if ultimate responsibility rests with the Commissioner it is up to the Commissioner to determine how the roles of IC and people of various ranks are to be managed…
The OIC etc do not bear legal responsibility for the incident. The responsibility belongs, at all times, with the Commissioner and ultimately the State of NSW. If anyone is liable it will be the state.
And consider a fire where the Commissioner is present – the Commissioner is unlikely to take over the minutiae of the fire just because they are there. That would be quite inappropriate – the Commissioner’s job is to make sure people appointed to positions are competent and supported, not to take the active lead notwithstanding s 3. Equally if at every fire the most senior firefighter by rank had to be the IC then no-one could ever get experience. But it has to be the case that an inspector can say to a station officer, ‘you’re the IC, you run this fire, I’ll be here to support you but it’s your call’. But that does not mean that the Commissioner or senior officer does not have command responsibilities. Their job is to supervise those junior officers and if necessary change the command structures and that is reflected in SOG 1.2 (I’m not sure what ‘SOG’ stands for).
I think that is consistent with law. Let us assume an Inspector comes on scene. The Inspector ‘outranks’ the OIC of both the retained and permanent firefighters on scene. The Inspector is the ‘officer in charge’ as defined by s 3 so they may ‘take such measures as [they think] … proper for the protection and saving of life and property and for the control and extinguishing of the fire’. That doesn’t mean they have to do everything. They don’t have to be on the end of a hose or entering the building. Nor do they have to act as the IC. Allowing the captain of the retained brigade to continue as IC may be a measure that the inspector thinks is ‘proper’ in the circumstances. But the inspector retains the responsibility imposed by the chain of the command. If the IC is out of their depth, not performing etc, then the inspector may step in and take over or appoint another person to take on the role. The Inspector is the officer in charge, as the Commissioner is ultimately the officer in charge of every incident, but that is not the same as being the ‘Incident Controller’ (IC).
The situation is a little more complex if there is simply a retained and a permanent brigade present. It would appear from the badges of rank (https://www.fire.nsw.gov.au/page.php?id=136) that a station officer does not ‘outrank’ the captain of a retained brigade but s 3 certainly means that it is a de facto truth that any permanent firefighter outranks a retained brigade captain. But the situation is still the same, that firefighter may be ‘the officer in charge’ but they may still elect to work with the retained IC for example on the basis that the retained firefighter has more experience.
If a permanent officer remains in attendance at the incident, but has not taken command (per SOG 1.2), that officer is still the officer in charge, even if he or she is not the Incident Controller, but, as I said in my earlier post:
One can imagine that a future post event inquiry, depending on the outcome, the question will be relevant.
- If a senior officer insists that they are to take on the role of IC and displaces a more experienced and qualified ‘junior’ officer then the issue will be why should that happen and the ultimate recommendation will be ‘IC’s should be appointed on the basis of skills and qualifications not rank’ (see 2009 Victorian Bushfires Royal Commission, Recommendation 18 – ‘The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire’. Change ‘regardless of the control agency for the fire’ ‘regardless of rank’ and you can see how this will be relevant.)
- If a senior officer allows a junior officer to remain as IC but there is a poor outcome, the issue will be why didn’t the senior officer supervise the junior officer and either counsel him or her or take over the role when it became apparent things were not working out (see 2009 Victorian Bushfires Royal Commission, Final Report [2.3.5] The Fundamental Responsibility of those in Command’)…
If the incident goes ‘pear shaped’ then everyone will be responsible for their decisions and actions. The IC will be responsible for what or she did and if the ranked member thought there was an issue he or she will be responsible for explaining what they did about that and if they did nothing, why not.
There is a difference between being the ‘officer in charge’ as defined in s 3 of the Fire and Rescue Act 1989 (NSW) and the ‘incident controller’ as defined by AIIMS. At the end of the day the Commissioner is always the officer in charge, but the Commissioner is not expected to be the IC at every incident. By allowing a more junior officer to continue as IC, the ‘officer in charge’ is taking ‘such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire’. Just as the officer in charge does not have to take hold of every hose or do every task, he or she does not have to be IC, but does have to exercise command responsibility which is reflected in the quoted SOG 1.2
There is no contradiction.