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.
- Definitions:
“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.
83 Delegation
(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—
(a) (Repealed)
(b) a member of staff of Fire and Rescue NSW, or
(c) a member of a fire brigade.
SOG 1.2
- Principles:
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.
Conclusion
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.
Australian Emergency Law 
Hi Michael,
Thanks for your interesting analysis.
In the wake of the 1999 fatal silo explosion at Rutherford, FRNSW was held to account for its lack of training and command. The Coroner seemed to take a very literal view of the Act. It is my understanding that, under her interpretation of the Act, the sole permanent Officer on scene, who attended in a supporting role, should have taken command. After this incident, senior officers were instructed that if they attended a call in a support capacity (i.e Media Officer, Safety Officer etc) they were to explicitly state, on the record, that they were not assuming command.
However, this instruction only makes sense when all the other attendees are permanent firefighters. How that would work when that person is the sole permanent officer on the scene is another matter. If one is to extrapolate from the Rutherford findings it could be concluded that, under the Act, when a permanent ranking officer is in attendance with retained staff only, they are obliged to take command. This is what creates the confusion, and concern, in the minds of Station Officers, in particular.
Given that Station Officers, generally, have a higher level of in-house training than Captains (who are only required to have two years service and do an interview vs the 10 years service, trade level courses and exams required to be an SO) I believe it is incumbent on an SO to take command if they see there is a problem. My policy, when dealing with retained staff as a station officer, was to either take command or, if there was no problem, leave. For me, it avoided any confusion or concern about who is ultimately responsible. After all, there can only be one person in charge at one place at one time.
Thanks for that insight into actual experience but it confirms my analysis and the quoted SOG. If ‘senior officers [are] instructed that if they attended a call in a support capacity (i.e Media Officer, Safety Officer etc) they were to explicitly state, on the record, that they were not assuming command.’ That is what the SOG says and it’s consistent with my interpretation that the Officer in Charge (as defined by the Act) does not have to be the incident controller. They have to exercise command responsibility which may mean taking over from the IC if that will lead to better outcomes, but it does not require that they act as the IC in all cases.
I did note that the issue where there is no-one above rank of station officer/captain present that is more complex. The officer ‘in charge of any members of a permanent fire brigade present’ is the officer in charge but that officer may still leave the volunteer as IC. Surely it’s a question of who is best placed to do the job. A station officer may have 10 years experience, but so may a brigade captain who may have had an earlier career as a permanent officer as well. It is, as you say and as said too, ‘incumbent on an SO to take command if they see there is a problem’ but that’s if they see a problem. If the volunteer or officer of lower rank is doing a good job, there is no need to take over the IC role even if the senior officer is the ‘officer in charge’.
This is also why AIIMS relies on tabards. You can see who the IC is by who is wearing the tabard regardless of who is wearing what rank.
As for Coroners, they do not make findings of, nor do they determine, legal rights or responsibilities. Further that Rutherford case is a useful reminder that regardless of who makes the decisions, the legal responsibility lies with the State. The prosecution in that case was Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356. It was the state of NSW not any individual firefighter that was prosecuted for breach of WHS duties.
Hi Michael, thanks for posting this. A few observations and questions:
“Captain Jenkins was the Incident Controller until relieved of those duties **on the arrival** of Permanent Firefighter Evans” – Coroner’s inquiry into the Caines explosion
“As the defendant submitted, there was no issue that on the arrival SO Evans became the officer in charge and the “Incident Commander” under the Incident Command System for the purpose of s 3 of the Fire Brigades Act. SO Evans conceded that he had a dual role on the morning of 6 December 1999, namely, as fire officer in charge or incident controller and as a specialist support service.” – Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356
1. Is it not clear from the outcomes of the Caines Rutherford explosion that there is a common law understanding that a permanent officer becomes both the officer in charge and incident controller upon their arrival?
2. The Act trumps the SOGs in any court. The SOGs are recommended practices, and an Act is the highest source of legal authority. Where there is a contradiction between the two – which there appears to be here – surely the Act is superior?
3. S83 states that certain responsibilities “may” be delegated, not that they must be, and in any case, it is only the senior Permanent officer who may delegate down, not the original Retained OIC claiming delegated authority above the Permanent officer who arrives on scene.
The Caines inquiry and IRC ruling make it clear to me that if a senior officer arrives and doesn’t take “command”, then they’re still liable for anything that goes wrong as they are the defined “OIC” per the Act and therefore exercising the Commissioner’s authority at the fire ground.
FRNSW’s SOGs should be updated to reflect the Act or the Act updated reflected to update the SOGs.
When FRNSW arrives at a fire, they take possession of the site in order to render it safe (S16). SafeWork and WHS make clear that whoever is responsible for a site should exercise control over health and safety matters to provide a safe work environment for all those working there. If a Permanent officer arrives and fails to take “command”, but is still the “OIC” per the Act, then they’re acting against their best interests by not exercising control over the incident, and it seems as though the authorities would treat it as such.
A finding of fact in one court – that this is what happened at this fire – is not a precedent about the law.
The Act trumps SOGs and AIIMS. AIIMS provides for the position of ‘incident controller’ and the Act provides for the position of ‘officer in charge’. My view is that they need not be the same person. If the Commissioner turns up at a fire, the Commissioner is in charge, in fact the Commissioner is ultimately in charge even if they do not show up. But someone else can be the IC. The duty of the senior officer, the OIC, is to become the IC if the current IC is not up to the task. I think that is consistent with the Act. The most senior officer on scene does not have to do everything, he or she does not have to hold each hose and direct each firefighter; but they are responsible for the outcome.
I agree (in part) that if a ‘senior officer arrives and doesn’t take “command”, then they’re still liable for anything that goes wrong as they are the defined “OIC” per the Act and therefore exercising the Commissioner’s authority at the fire ground’. I disagree they are ‘liable if anything goes wrong’ – the firefighters at Rutherford weren’t liable, the State of NSW was. But I agree that if they don’t take commend (ie take the role of IC as defined by AIIMS) they still have command responsibility including a responsibility to relieve the IC in the circumstances described in the SOG. If they don’t they will have to answer why they did not do so. But if an inspector turns up at a fire that is being adequately managed by a retained brigade, why should that inspector assume the role of IC? He or she can step back and allow that brigade Captain to demonstrate their skills and learn from their experience. That does not mean the Inspector is not the ‘officer in charge’ as defined by the Act but it does not mean the Inspector has to make every decision. If it did how would anyone gain experience? But if the IC is out of their depth, or not performing adequately then yes, the OIC has to take action.
I don’t think we disagree. The senior officer (which includes the officer in charge of permanent firefighters) retains an oversight responsibility if they do not take on the white tabard of IC. But as officer in charge, they can decide to let the current IC proceed. If there’s a poor outcome, they will have to justify their decision just as they would if they took on the role of IC and there was a poor outcome.
Further the fact that ‘… there was no issue that on the arrival SO Evans became the officer in charge and the “Incident Commander” under the Incident Command System …’ means there was no ruling on that matter. In this case there was no issue but that does not mean the issue could not arise on another fire eg where the more senior officer (by rank) said to the IC – ‘you stay IC, I’m the hazmat commander’ but that wouldn’t deny that officer’s command responsibility if the IC was not performing well. The issue was not addressed by the court because it was not an issue before the court.
Also note that the Coroner does not determine legal rights and responsibilities. A determination of a factual issue by a coroner is not precedent.
By the time that NSWFB was already using SOG ( Standard Operational Guidelines), there was the tragic deaths of three people and the injury to firefighters as a result of explosion in relation to the events occurring at Caines Industries on 6 December 1999.
It, (NSWFB), by then, had long abandoned. what was previously a sprawling system of Standard Operational Procedures. or (SOP) as such, were too rigid, and they were too close to the historic provisions of the Fire Brigades Act. In the sense at least, they were abandoned because they were aligned to dinosaur logic.
Subsequently ( and well prior to 6 December 1999) NSWFB had already implemented common operational guidance criteria, in policy, as an abandonment of SOP, and it must be said, as a an abandonment of relying upon the provisions of the FB Act .
Rather than interpreting operations suggested by its own legislation, the FB Act , NSWFB decided to back firefighters rather than politicians and the Parliamentary Counsel. Much like a certain “other” Commissioner had backed himself in the monumental changes to the Rural Fires Act in 1997.
Guidelines are operations guides, derived by the organisation itself and by experienced firefighters. They do not rely on the Fire Brigades Act because the Act merely enables ( in the minds of politicians) the need to establish Fire Brigades over the preceding hundred years or so.
Hardly a basis for a myriad of operations.
I’m not sure I understand the relevance of this to the post under discussion. I do note that legislation like the Fire Brigades Act (as it was) is never intended to be operational. It establishes the service, appoints and authorises the Commissioner and gives broad pwers, but it is up to the executive arm of government (in this case the Commissioner) to put meat on the bones of the legislative skeleton and determine how the agency will do it’s work. There is nothing new in that.