Today’s correspondent is a member of the NSW SES who is aware of an event where:

… a pair of paramedics had chosen to wait for police assistance rather than entering a premise to assist a person who had been assaulted. There was no evidence that the paramedics were faced with any actual violence or a threat of the same. The paramedics were in an area (which might be casually described as a “mission”) where there was regular civic disorder and in which emergency services had been assaulted in the past. The area is almost entirely occupied by Aboriginal Australians.

I was reminded of a situation I was faced with … where the local SES unit instructed me that no emergency services ever went into a local area (again which might be casually described as a “mission”) which was almost entirely occupied by Aboriginal Australians.

On reflection, I think I would be distressed and disappointed if a member of my unit failed to render assistance to a person who needed it based on the fact that the person was in one of the areas of Australia casually described as “missions”. Of course, if they were exposed to actual or threatened violence, that is a very different proposition.

I wonder whether the service would be liable for a potential consequence through the Racial Discrimination Act or, indeed, an action in negligence?

That is a timely question given in my response to an earlier question I said that the Anti-Discrimination Act 1977 (NSW) did not apply to the Rural Fire Service (Disability discrimination in NSW RFS (February 10, 2023)), but that was in the context of the RFS vis-à-vis its volunteers given that the volunteers were not employees. That conclusion does not apply in this context.

In the context of today’s question, the SES (and in a different emergency, the RFS, NSW Ambulance and Fire and Rescue NSW) is providing a service to the community.  The Anti-Discrimination Act 1977 (NSW) says that racial discrimination occurs a person treats another person ‘less favourably’ than they would treat another person of a different race (s 7(1)).  Further (s 7(2)):

… something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

With respect to the provision of goods and services the Act says (s 19):

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race–

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

In the context of the question asked, the services are not refusing to provide the relevant service but may be changing the terms on what that service is provided, ie only with police attendance.

As my correspondent says, if there is ‘actual or threatened violence, that is a very different proposition’. If there is not then the issue is whether that decision is based on race, or other considerations. That is impossible to answer in the abstract as it depends on the state of mind of either the responders who insist on calling for police backup, or the more senior management who direct them to wait for police backup.

If their reason for waiting for police is based simply on assumptions about the behaviour of aboriginal persons then yes, that would be unlawful discrimination.  If it is based on evidence about past experiences and the response is reasonable and consistent with how others are also dealt with then it may not be.  That argument would be easier to make if it were address based, rather than ‘area’. For example, if emergency services flag addresses where responders have been subject to violence or other risks, and that is done and can be shown to have been done regardless of the occupant’s race, then that would suggest no racial discrimination. But to mark of an entire area, particularly one that is ‘almost entirely occupied by Aboriginal Australians’ must at least raise a question of racial discrimination.

If there are issues with access to indigenous communities, it would be incumbent upon the SES (and other emergency services) to work with the indigenous communities to ensure that the communities receive, and the agencies provide, the services that they are established to provide.

As for negligence a fail to respond in a timely manner could be negligent save for the general rule that there is no duty to rescue (see for example No duty to prevent a disaster and no duty to rescue (December 26, 2018) and of course if the decision to wait is reasonable (as it might be if there was actual or threatened violence or there was a known history of risk at a particular address) then it could not be negligent.

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.