Today’s question touches on a matter that is increasingly important in emergency management – the role of the community and spontaneous volunteers. My correspondent
… was part of a discussion with a NSW SES member who had been active in responding to flooding in North East NSW in early 2022. They shared that members of the affected communities and surrounding areas had spontaneously and independently formed a “tinny army” [or should that be navy?] using their own boats to assist others affected by the floodwaters.
The member I was speaking with indicated that the “tinny army” had offered to help NSW SES and asked for NSW SES to support them in terms of directing their efforts (controlling and coordinating them) but that NSW SES had chosen not to do so for fear of being held responsible. Responsible for the actions of the members of the “tinny army” as well as responsible to the members in terms of potential health and safety/insurance risks, etc.
• Is that a legitimate concern?
• Is there any risk that an organisation takes on by utilising spontaneous volunteers?
• How, if at all, does that risk differ from a “normal” member (a member who is trained by the Service and regularly attends events even outside of operational period)?
• Is that risk any different between a person being under the immediate command of a “normal” member of a service as opposed to that person operating under additional tiers of command/control by other spontaneous volunteers (ie NSW SES working with a “tinny army” leader who has formed their own operational management team, managing their own tasking, etc. rather than NSW SES managing them directly)?
• Are there any risks posed by NSW SES refusing to use/support organisations like this if the lack of support/equipment which NSW SES has causes an incident? (For example, if NSW SES knew that a tinny army crew was operating in an area, that the crew didn’t have PFDs which could have been supplied by NSW SES, and there is an accident where a member of the tinny army crew drowns because they didn’t have a PFD.)
With all the services recognising the value of spontaneous volunteers (and the ongoing challenges in retaining volunteers outside of operational periods), it seems that, if there are these risks/limitations to leveraging other organisations – both pre-existing and those which form in response to an event – it is a major weakness to this strategy.
I must tread carefully here. The story I’m told is classic hearsay. My correspondent had a conversation with a friend who said that they had heard the SES refused to support the community navy out of ‘fear of being held responsible’. Telling the story like that you can see how the message may be distorted. What was the SES actually asked to do? What was the actual response? What was the actual motivation? None of that can be inferred from the story. It’s important to set that out so there is no suggestion that in addressing some of the issues raised that I’m confirming that the way the story was reported is correct. But with that disclaimer we can address some issues.
It appears to me that an emergency service, like the SES, has three options when faced with active, spontaneous volunteers. They may:
- Attempt to exclude them from the danger zone. This may be reasonable if there are grounds to think they are going to be more of a hinderance or a help or
- Incorporate the community army/navy into the response which requires pre-planning on how to do that and depending on the circumstances thinking about what they can be tasked to do considering the emergency, their prior experience etc
- Put your head in the sand and pretend that they are not there and have nothing to do with the response even though it’s known that they are there and are responding.
Let’s consider each one.
Option 1.
This is not realistic nor appropriate in most cases.
In all emergencies, the first responders are always local. The emergency services may be in command of their response, and in control of the other agencies that agree to come under their control, but citizens and their ad hoc armies and navies can, and will do what they see as necessary. Even with statutory powers to order evacuations and direct people it does not follow that everyone will do as directed. And emergency service resources cannot be diverted to ensuring compliance.
Neighbours helping each other clean up after a flood or storm is both inevitable and to be commended. Sometimes spontaneous volunteers will pose a hazard to themselves and the emergency services and other times they will identify and respond to a need faster and more effectively than any government agency will do.
A policy that all local residents are to be evacuated, and people who can help will be refused and excluded will not match reality. There is an ‘attraction of a policy framework that is uncomplicated and presents just a few clear options, but to adopt such an approach is to oversimplify. (2009 Victorian Bushfires Royal Commission, Final Report, Vol 2, Chapter 1, p. 3). It would be attractive to believe that if ordered out of the disaster zone, everyone will go but that is unlikely.
The Special Inquiry into the West Australian Perth Hills Bushfire (Mick Keelty, ‘A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review’ p 42) said:
The Special Inquiry does not dispute the priority given to protecting life, however, it is concerned that the process of widespread evacuation may be at odds with the focus … empowering individuals and communities to exercise choice and take responsibility, as set out in the National Strategy for Disaster Resilience. The Strategy has an explicit focus on building disaster resilient communities …
… a disaster resilient community as one where people have taken steps to anticipate disasters and to protect themselves … the widespread use of evacuation as a strategy to protect life has the potential to disempower communities, rather than building resilience….
A blanket policy requiring all potential volunteers to leave an area would be unworkable and inconsistent with the National Strategy on Disaster Resilience. It would also deprive communities, and response organisations, of valuable resources, knowledge and skills. An agency that tried to adopt that policy would be ‘responsible’ in that it would be required to account for why that decision was made and answer to those criticisms if lives are lost that could have been saved.
Directing everyone, including spontaneous volunteers, to leave an emergency zone may be appropriate in some circumstances of immediate danger but will be neither appropriate nor possible in most cases.
Option 2.
The second option is to incorporate the community into the response. As my correspondent notes all services recognise both the value of spontaneous volunteers but also their inevitability. In NSW the functions of the SES include (State Emergency Service Act 1989 (NSW) s 8(1)):
(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis,
(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities,
Those functions have to be performed in the real world that is where SES resources are limited and where we want and encourage resilient communities. If the SES refused to work with the community navy, then they are not thinking about their functions (eg can we work with these people to help protect them) nor acting as the ‘combat’ agency (ie the agency that is ‘primarily responsible for controlling the response to a particular emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 3). If the SES refuse “to support them in terms of directing their efforts (controlling and coordinating them)” then they are deliberately not controlling the response.
Will the SES be ‘responsible’? Again it will always be ‘responsible’ or accountable for the decisions made by its officers and members. It may have some responsibility to the spontaneous volunteers.
Given s 8(1)(aa) the SES may want to inspect the boats to make sure they are in sound condition and ensure that there are enough flotation devices for everyone on the boat. They will need to consider who is tasked with what. All of that is consistent with the function of ‘protect[ing] persons from dangers to their safety and health … arising from floods’. Given that spontaneous volunteers will be there whether the SES likes it or not, take that sort of approach goes some way to providing protection for those people who will be volunteering.
Will the SES be legally liable if something goes wrong? As always that would depend on the specific facts of any incident and what went wrong and what was the involvement of the SES and whether the conduct was reasonable in all the circumstances.
Option 3
The third option has to be the biggest legal risk as it is not ‘reasonable’ – it is not based on reasons. Reasons (or risk management) requires someone to take time and to ask the question – what might happen? How bad might it be? How likely is that? Taking into account all the circumstances can we reasonably mitigate that risk – but reasonable mitigation does not mean ‘exclude them’ any more than refusing to send the SES to floods or the fire brigades to fires is a reasonable way to manage risk to SES and firefighting volunteers. And it certainly doesn’t mean ‘ignore them’.
Legal protection
Would there be any liability for the action of spontaneous volunteers? If the community’s spontaneous volunteers are incorporated into the response, then those casual volunteers, ie those people ‘who, with the consent of the member or officer, assists a member of the State Emergency Service or an emergency officer in the exercise of the Service’s functions’, are protected from liability to the same extent as an SES member (State Emergency Service Act 1989 (NSW) s 25). Any damage that they cause would be deemed to be damage caused by flood, just as any damage caused by an SES member would be deemed to be damage caused by flood (SES Act s 25A). There is no more risk of liability for those volunteers than there is a risk for liability for the SES volunteers.
In terms of liability to the volunteers, spontaneous volunteers who place themselves under the direction and control of the combat agency, in this case the SES are likely to be people who ‘in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’. They are then they are covered by the provisions of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). That can also be true where they are acting on their own initiative.
The questions
Let us then turn to the questions which start with the assumption that the SES feared being:
Responsible for the actions of the members of the “tinny army” as well as responsible to the members in terms of potential health and safety/insurance risks, etc.
• Is that a legitimate concern?
Yes and no. The SES (or any combat agency) is responsible for how it meets its obligations. If it fails to use local resources when they are available to help, then they are responsible for that decision as they would have some responsibility for the welfare of spontaneous volunteers if they are incorporated into the response. If they don’t have a plan and arrangements for how they are going to deal with community responders, given that they are at every event, then they will be responsible for that, too. A fear of ‘well all be sued’ is not however a legitimate concern.
• Is there any risk that an organisation takes on by utilising spontaneous volunteers?
There are some risks but there are also risks in not making use of them when they are going to respond anyway, and where they may provide valuable contributions to the response and recovery.
• How, if at all, does that risk differ from a “normal” member (a member who is trained by the Service and regularly attends events even outside of operational period)?
If what we’re talking about is legal risk, it really doesn’t differ. With members who are trained etc the agency can be confident on their state of knowledge and what they are at least certified to do (which may not equate to competent to do). With spontaneous volunteers that maybe unknown but like any risk that is a risk that can be managed. Ask people to produce their licence (noting that not everyone who operates a ‘tinny’ will have, nor need a licence (Marine Safety Regulation 2016 (NSW) r 102)); consider what it is they are planning to do and what the agency can do to help etc. In some circumstances the only reasonable response may be to direct people out of the danger area – you don’t want spontaneous volunteers entering a burning building after the fire brigades have arrived – but in other cases there are appropriate and ‘reasonable’ steps that can be taken to identify and if necessary, ameliorate any risk.
Risks need to be ‘reasonably’ controlled (Wyong Shire v Shirt (1980) 146 CLR 40; Civil Liability Act 2002 (NSW) s 5B; Work Health and Safety Act 2011 (NSW) s 18). Checking everyone has a licence and enough personal flotation devices may be reasonable. It may be better if everyone had flood boat training, but you have to consider that people will respond whether you approve them or not so at least checking gives some risk management; and there also has to be consideration of the ‘social utility’ of the exercise ie providing immediate rescue.
And all the provisions that apply to members of the SES (ss 25, 25A and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)) apply to these volunteers too. The statutory protection is the same and if there is any liability it will fall to the State of NSW and in the scheme of things would be a very low financial risk (compared to the cost of the floods).
• Is that risk any different between a person being under the immediate command of a “normal” member of a service as opposed to that person operating under additional tiers of command/control by other spontaneous volunteers (ie NSW SES working with a “tinny army” leader who has formed their own operational management team, managing their own tasking, etc. rather than NSW SES managing them directly)?
Everything depends on its own facts so what you have here is the SES in control but a local group with its own leader in command. Again, it would really depend on who they were. If it was the local water-ski club and the ‘commander’ was the commodore of the club, it’s hardly an issue to task them to undertake tasks with their boats.
• Are there any risks posed by NSW SES refusing to use/support organisations like this if the lack of support/equipment which NSW SES has causes an incident? (For example, if NSW SES knew that a tinny army crew was operating in an area, that the crew didn’t have PFDs which could have been supplied by NSW SES, and there is an accident where a member of the tinny army crew drowns because they didn’t have a PFD.)
Absolutely, there are risks in incorporating them into the response, there are (I suggest greater) risks in ignoring them.
Conclusion
The SES and any agency is responsible for its decision making. If it decides to incorporate spontaneous volunteers it is responsible for that decision and how that is managed to minimise risk so far as is reasonably practicable. If it decides to exclude people from the danger zone and response, then it is also responsible for that decision and the consequences that may flow. In different circumstances, either response could be justified.
What I cannot see is that a decision to simply ignore them and pretend they are not there is ever reasonable. If the people, in this case the community navy, are in the danger zone (in this case in flood waters) then they must be people directly affected by the acts and omissions of the SES such that the SES has to have them in mind and consider their role in the flood response (Donoghue v Stevenson [1932] AC 562). Simply refusing to deal with them won’t excuse the SES from responsibility if they are harmed, or cause harm but denies the SES any input into the risk management process.
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 Association and 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.
Australian Emergency Law 
Thanks again, Michael, for another well-reasoned article.
I absolutely agree that this an issue that is becoming “increasingly important” to the emergency services sector but for which I am not seeing much actual policy being developed around. Option 3 is where most of the leaders of the emergency sector seem to be wanting to be.
The spontaneous volunteer is a resource that should be recognised as being important on the ground and there needs to be a lot more policy and training provided to field commanders on how to best manage these resources.
There are some pockets of good work being done (eg, use of private appliances in western Victoria) but more needs to happen. We are going to be facing more and wider spread emergencies and we need to better manage this phenomenon.
State Emergency and Rescue Management Act 1989 No 165
59 Liability for actions of members of rescue units and volunteers
(1) Anything done or omitted to be done by an accredited rescue unit or by a person as a member of
an accredited rescue unit or authorised volunteer does not, if done or omitted in good faith in
connection with a rescue operation or otherwise in response to an emergency, subject the
accredited rescue unit, the person or any other person to any action, liability, claim or demand.
(2) Anything done or omitted to be done by a casual volunteer does not, if done or omitted in good
faith in connection with a rescue operation or otherwise in response to an emergency, subject the
volunteer personally to any action, liability, claim or demand.
(3) In this section—
accredited rescue unit includes—
(a) a rescue unit (within the meaning of Division 4) engaged in surf life-saving, and
(b) any organisation or agency (other than a government agency) that manages or controls an
accredited rescue unit.
authorised volunteer means a person who assists an accredited rescue unit in carrying out a
rescue operation with the consent of the person in charge of the rescue operation.
casual volunteer means a person who assists, on his or her own initiative, in a rescue operation
or otherwise in response to an emergency in circumstances in which the assistance was
reasonably given.
This is a reasonable application of assistance spontaneously given by casual / spontaneous volunteers. It also implies that ‘assists’ means under some form of direction or control. It is similar to bulldozer operators coopted to assist firefighters construct a fire break. The fire break is put in under the control of fire agencies.
That section is not really relevant in the context under discussion as it is referring to rescue units accredited by the State Rescue Board. That section would be relevant where a spontaneous volunteer is assisting at a road crash rescue but not where the assistance is to the SES in a flood – where the SES is the combat agency and does not require SRB accreditation.
A proper reading on Sect 3and 4 clearly defines the essential operating conditions of the act. It does not just specify Accredited Rescue Units only it much more broadly defines the ’emergency’ as it relates to Sec 4 of that Act
Fair points. Section 59 is in part 3 – State Rescue Management and is headed ‘ Liability for actions of members of rescue units and volunteers’ but its placement and headings help in interpretation but don’t override the words of the section (Interpretation Act 1987 (NSW) ss 34 and 35). One might have thought the general protection was in s 62 ‘Personal liability’ but that does appear to be limited to employees only. So yes, I stand corrected, s 59 does look like it’s also applicable in the relevant circumstances. Thanks for that.
What seems to happen often in this space is
that lunchroom lawyers conflate (personal) civil liability and (personal criminal) liability for WHS offences committed by spontaneous volunteers (or indeed by members of other agencies!).
They also sometimes (often?) attribute ill-informed decisions made by relatively junior officers at the local level, or “on the scene”, to “the SES” – at a so-to-speak “corporate” level.
In any event, the SES has made reasonable provision in policy for spontaneous volunteers.
( http://www.ses.nsw.gov.au/spontaneousvolunteering ).
We might reasonably assume that they had some reliable legal advice before doing so.
Thanks Michael, another great insight into the competing forces around dealing with emergencies!
While reading this it seemed to me there is a perfectly reasonable response by the SES member(s) in the above scenario, and I’d be curious if you agree. My first thought – assuming I was the SES volunteer on the scene or in command of that particular situation, is to approach the representative of the ‘tinny navy’ and say something along the lines of:
“I appreciate your efforts, but I don’t have the resources right now to inspect your boats or levels of competence. This is a dangerous situation that can change rapidly. My recommendation is that you leave the area. However I’ll understand if you don’t want to do that. Please ensure any members remaining are safe, understand the risks and the dynamic nature of the situation, and are appropriately equipped. There are some less dangerous tasks where you could be really useful at (location). I can offer you these resources (spare lifejacket, rope, drinking water etc), and I’ll coordinate and assist where I can, but I can’t command your operations or protect your safety right now”.
Obviously, in some situations one might simply prefer to evacuate everybody, including spontaneous volunteers, if the dangers are simply too obvious. But in many cases I would imagine the above would be a reasonable way to try and minimise harm while acting in good faith and remaining consistent with community expectations. It would also maintain a more positive relationship with the spontaneous volunteers and allow for closer coordination as the picture becomes clearer and more resources become available.
Neil that sounds like a reasonable response. I think the key is to recognise that an agency like the SES cannot control everyone. Even where the legislation says they’re the combat agency and have the power to order people to evacuate it is not realistic to believe everyone can or will comply with SES directions. Facing up to that reality is the first step.
What occurred in the floods in NSW, and similarly during bushfires and other similar events over many years, is the constant representation of ( what is historically known as) emergent groups. “Emergent groups” have long been identified as a critical disaster management response, yet rarely one that would be affiliated with either the government or agency responses and for that matter, the law.
Emergent groups are a loose collective of people which has an affiliation with their community under circumstances of significant duress and they respond in kind right at the time of impact. They are focussed, brave and in many cases they elect a leader amongst themselves in order to be efficient and effective in rescuing their friends and neighbours.
Emergent Groups have “emerged” from their storm cellars following tornadoes in the mid west USA and the survivors begin to dig out their neighbours, hours or days before emergency services arrive. They are the rock pickers following earthquakes and they are also locals in boats during floods worldwide. The term has been around since the late 1970’s.
The recent “Tinny Army” is a classic and effective emergent group and they are typical and their efforts are reasonably universal according to other events.
But I also think of the armies during bushfires as they exist in abundance. Is there a legislative basis supporting these groups? I think not, and frankly its a cultural thing,
Let’s not leave it to the lawyers.
I’m not sure what “Let’s not leave it to the lawyers” means.
There is some ‘legislative basis supporting these groups’ – see State Emergency Service Act 1989 (NSW) s 25; Rural Fire Service Act 1997 (NSW) s 8 (definition of ‘volunteer firefighter’) and s 128; State Emergency and Rescue Management Act 1989 (NSW) s 59.