[Those who follow this blog closely will see that my answers to this question have changed – this is in fact v 3 of my answer. I make no apology for that; it is how the law and lawyers work. It’s all about argument so you develop an argument then sleep on it and think of a new angle or something you’ve missed. I’ve gone from thinking Local Commanders appointed to clusters was not consistent with the Act to now thinking it is. My current thinking is set out below. I don’t guarantee it won’t change again].
Today’s questions relate to the NSW SES and the appointment of a Local Commander. My correspondent quotes the State Emergency Service Act 1989 (NSW):
“17 Local commanders
(1) The Commissioner may, on the recommendation of the council of a local government area, appoint one or more persons as a local commander for the area.
(4) The Commissioner may appoint as a local commander an emergency officer not recommended by the council of the local government area concerned if the council fails to make a recommendation which is acceptable to the Commissioner within 30 days after the council is requested to do so by the Commissioner.“
Present NSW SES practice is to conduct this appointment process entirely internally with no engagement from local councils. i.e. a call for expressions of interest is put out to the volunteers, interviews are undertaken by the Zone Office and the Zone Commander recommends an appointment to the Commissioner. Is this practice in line with the legislation?
Further, with SES restructuring and changes to council boundaries many Local Commanders now cover multiple council areas. Some councils have been unhappy with this arrangement.
If the affected councils were to each nominate their own Local Commander instead of agreeing on a joint candidate what grounds would the SES have to reject them for not being “acceptable” under (4)?
Also [section 17 says:]
“(5) The council of a local government area must, within 3 months of the appointment of a local commander for the area, provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions.“
If one Local Commander is covering multiple LGAs under (5) is it to be read that each of those LGAs must provide him/her the suitable facilities as listed?
Circular to councils
A circular to councils issued by the Office of Local Government (Circular No 1829 / 27 September 2018) says that with the passage of the Emergency Services Legislation Amendment Bill 2018 there will be ‘new structure for the NSW SES’. It goes onto say:
In the new structure, Local Commanders are determined by clusters and not by Local Government Areas (LGAs). The Local Commander’s role is to support the Units within their cluster and facilitate collaboration within the cluster with external stakeholders.
It is anticipated Local Commanders will be assigned progressively from October 2018…
Councils will be advised of Local Commander appointments that are relevant to their LGA.
The Bill, as passed did not provide for clusters or for the appointment of Local Commanders other than by reference to a Local Government Area. The only effect of the Bill on s 17 was to remove the term “Local Controller” and insert instead, the term “Local Commander”.
Local Commanders and Local Government Areas (LGAs)
Section 3 of the SES Act says that the term ‘local commander’ “means a commander of SES units in a local government area appointed under section 17″ (emphasis added). Section 17(1), setting out the process for appointment is quoted above. Section 17(3) goes onto say (emphasis added):
… subject to any direction of the Commissioner or the relevant zone commander, responsible for the control and co-ordination of the activities of SES units in the relevant local government area.
The section does permit the Commissioner to appoint ‘one or more persons’ as a Local Commander. All the units within a cluster must be within one or more LGAs. The Commissioner could therefore appoint two Local Commanders and give responsibility for some units (one cluster) to one Local Commander and responsibility for other units (a second cluster) to the other Local Commander. Both would be Local Commanders within the meaning of the Act.
The Role of councils
For a Local Commander to be appointed under s 17, the local council recommends a person as local commander. The Commissioner may appoint them to that role. If the nominated candidate is not acceptable to the Commissioner, or no recommendation is made, the Commissioner may request the council to make another recommendation and if they do not, then the Commissioner may appoint his or her own nominee to the position. A person may not be acceptable to the Commissioner for any number of reasons, he or she may not be appropriately qualified or experienced or otherwise not a ‘fit and proper person’ for the appointment. There is no guidance in the Act as to what would make a person ‘acceptable’ (or not acceptable) to the Commissioner so that has to be a very wide discretion, but it could not extend to irrelevant considerations such as their shoe size or the cut of their hair.
If the appointment of a Local Commander is made without a recommendation from council or after 30 days from a request for a recommendation, then that is not complying with the Act. However, there may be much hidden behind the scene. Councils may have delegated the power to nominate the commander to the Commissioner or Zone Commander (Local Government Act 1993 (NSW) ss 377 and 378). I do not know if any such delegations exist, but as an example, the Rural Fires Act 1997 (NSW) s 15 (the RFS Act) provides a central role for councils in establishing rural fire brigades. That no longer happens, and brigades are established by the Commissioner. The transfer of responsibility has been achieved by delegation (see RFS Act s 12A; RFS Service Standard 1.3.1 Delegations and Authorisations (22 November 2013) and RFS Service Standard 1.3.4 Rural Fire District Service Agreements (16 August 2010)).
Alternatively, there may be an internal recruitment process and the name of the successful candidates are sent to council who in turn recommend that person to the Commissioner. What follows is that what may look like a ‘process entirely internally with no engagement from local councils’ may not be that at all. One would need more details than are publicly available on the process of recruiting and appointing Local Commanders to be able to comment on whether nor not there is compliance with s 17.
Local Commanders working across councils
As noted the Act says that local commanders are appointed ‘on the recommendation of the council of a local government area, … for the area’ ie for the local government area. Presumably one person could hold more than one appointment ie they could be a Local Commander in two local government areas.
If a person was appointed over two or more local government areas each local government would be required to provide ‘suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions’ but there’s no reason that could not be done collectively. Councils could join up to ensure that the person had suitable facilities even if there was only one office in one local government area. If there was an agreement between the councils (eg as to cost sharing but fundamentally on whatever terms they agreed to) then they are ensuring that the commander has relevant facilities.
The Commissioner’s responsibility and discretion
The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ (s 11) and ‘is required to undertake such planning and make such preparations as the Commissioner thinks fit for the purpose of enabling the Commissioner’s functions under this Act to be exercised in the most effective manner’ (s 12).
The Commissioner may (and has) divided the state into zones (s 14). She may then conclude that it would enable ‘the Commissioner’s functions under this Act to be exercised in the most effective manner’ by dividing the units within each zone into clusters and then appoint someone to manage the units within that cluster. That is consistent with a position statement for Local Commanders which says:
The Local Commander position provides leadership in the development and coordination of Unit Commanders across a cluster of Units to ensure operational delivery and service support requirements are met to achieve the NSW SES Mission and Vision statement.
Establishing clusters and cluster command positions is consistent with the Commissioner’s administrative functions even though the Act does not refer to clusters. Similar to RFS districts and zones, (see Changing boundaries of a NSW rural fire district (April 19, 2022)) the establishment of clusters would be a valid exercise in administrative discretion where clusters are created by the Commissioner, rather than in legislation. The Commissioner, having decided to group units in clusters is entitled to create a cluster leadership role. Each cluster must fall within one (or more) LGAs. As noted (above) more than one Local Commander may be appointed for each LGA. Each Local Commander must perform their task ‘subject to any direction of the Commissioner or the relevant zone commander’ (s 17(3)). If each Local Commander is appointed for the relevant LGA then the Commissioner can determine how they will exercise their responsibility – for example two people may be appointed as Local Commanders for the Kickatinalong LGA. The Commissioner or Zone Commander could direct Local Commander One to exercise command responsibility for the SES units in the northern part of the LGA – the north cluster; whilst Local Commander Two is directed to exercise command responsibility for the units in the South – the southern cluster.
I only have access to public documents so I do not know the exact process by which Local Commanders are appointed. Looking just at the Act:
- Local Commanders may be appointed but only on the recommendation of local government (s 17(1));
- The Commissioner may appoint Local Commanders to a local government area without a recommendation from the local government only if the local government has failed to make an acceptable nomination within 30 days of a request to do so (s 17(4));
- Local Commanders must be appointed by reference to local government areas (ss 3 and 17);
- Each LGA may have more than one Local Commander (s 17(1));
- A Local Commander is subject to direction from the Commissioner or relevant Zone Commander (s 17(3));
- The Commissioner can group SES units into clusters (ss 11 and 12);
- The Commissioner or Zone Commander could direct one Local Commander to exercise command over units in one cluster; and appoint a second Local Commander to exercise command over another cluster of units in the same LGA (ss 11 and 12).
- One person could be appointed a Local Commander in more than one LGA and therefore exercise command responsibilities across more than one LGA.
I cannot say, without access to internal documents and the SES’s own legal advice if that is how the clusters are created and managed but it is at least possible.
My conclusion does not address if and how appointments are made. As noted the responsibility to nominate a potential Local Commander could have been delegated to the SES, but I have no way of knowing whether such delegations have been made. In the absence of more information I could not say whether current SES practices regarding the appointment of Local Commanders is consistent with ss 17(1) and (4).
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 the 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.