In response to my post ‘Commonwealth declares a national emergency’ (April 1, 2022) I was asked:
How does this affect say SASES deploying to NSW to assist eg with work etc. SASES are covered by legislation for any negative effects from employers (I believe) but only for State based work?
My reply (being the literal sort of person that I am) was “The declaration of a national emergency has no bearing on the deployment of SASES into NSW.” That’s true but perhaps not a helpful analysis of a question that I have been asked before, which is how do the laws that empower, or limit the liability of, an emergency service (it doesn’t have to be the SES) apply when they travel interstate?”
I have previously written on the subject looking at laws that empower the emergency services – see:
- Interstate deployment (January 29, 2014);
- Interstate deployment from the ACT to NSW (June 29, 2014);
- Maintaining discipline when interstate (January 30, 2016);
- Transporting the mentally ill from NSW to the ACT (July 18, 2018);
- Mental health services by paramedics across the NSW/Victoria border (October 25, 2018);
- Carrying scheduled drugs between NSW and the ACT (December 19, 2018);
- Interstate paramedics treating the mentally ill (August 19, 2019); and
- Authority when on interstate deployment (November 13, 2019).
These posts have not looked at the liability protection provisions such as the Fire and Emergency Services Act 2005 (SA) s 127 which says:
(1) No civil or criminal liability will attach to a member of an emergency services organisation, a person appointed or authorised to act under this Act by the Commission, or other person for an honest act or omission—
(a) in the exercise or discharge, or purported exercise or discharge, of a power or function under this Act; or
(b) in the carrying out of any direction or requirement given or imposed at the scene of a fire or other emergency.
(2) A liability that would, but for subsection (1), lie against a person lies instead against the Crown.
Applying inter-state legislation
Let us assume that a member of the SA SES has, whilst in NSW, performed a task negligently, but in good faith, and someone is seeking to sue to recover their damages. In Sweedman v Transport Accident Commission  HCA 8 (at ; (Gleeson CJ, Gummow, Kirby and Hayne JJ) the High Court said “There is nothing necessarily antithetical to the system of federation established and maintained under the Constitution in the legislation of one State having legal consequences for persons or conduct in another State.”
Callinan J (at ) cited with approval a UK court decision, Macmillan Inc v Bishopsgate Investment Trust Plc (No 3)  1 WLR 387 where Aldous LJ said:
… ‘In order to ascertain the applicable law … it is not sufficient to characterise the nature of the claim: it is necessary to identify the question at issue.’ Any claim, whether it be a claim that can be characterised as restitutionary or otherwise, may involve a number of issues which may have to be decided according to different systems of law.
Where someone is suing the nature of the claim is likely to be a negligence action. Common law, as affected by the Civil Liability Act 2002 (NSW) is likely to determine whether the thresholds for liability have been established. But where the issue is the legal status of the defendant (in this context SA SES) and the obligation of the Crown in Right of South Australia to indemnify a member, then the relevant law will be SA law. The ‘obligation … to indemnify [is] distinct from any underlying claim in tort’ (Sweedman, ; Gleeson CJ, Gummow, Kirby and Hayne JJ). Even if it is NSW tort law that determines if there is any liability, it is SA law that determines who, between the member and the state, is liable.
Laws passed in one state or territory can have application in another. If a member of a visiting emergency service commits a tort, then it may be the law of the domestic state that sets out the requirements that the plaintiff must prove to establish liability. But if they are suing the visiting member, or their agency, then it is the law of the sending state that constitutes that agency and defines who is the defendant. It is consistent with the Constitution and Australia’s federation that the legislation that identifies the legal relationship between the member, the agency and the government and which creates the potential defendant will continue to apply when that agency travels interstate to assist in an emergency.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.