This is an interesting issue. A correspondent has sent me an order, signed by the Commissioner of the NSW Rural Fire Service, authorising emergency officers to exercise various powers under the State Emergency and Rescue Management Act 1989 (NSW). The Authorisation of Powers is attached to this post.

In the authorisation, the Commissioner says (emphasis added):

… the Premier of New South Wales, the Hon Barry O’Farrell has made a declaration of a State of Emergency…
The Minister for Police and Emergency Services, the Hon Michael Gallacher MLC has delegated his powers under Division 4, Part 2 of that Act to myself as Commissioner of the NSW Rural Fire Service…
Pursuant to this delegation I hereby authorise all emergency service officers in New South Wales to use certain powers under the State Emergency and Rescue Management Act 1989.

Later various powers under ss 37 and 37A are authorised.

The Minister’s power to delegate to the Commissioner is provided for in s 10. I think the more accurate reference to the relevant part of the Act would be “Part 2, Division 4”, not “Division 4, Part 2”; the relevant provisions are in a sub-division (Division 4) of a broader part (Part 2 – State Emergency Management), but nothing turns on that.

The term ‘emergency services officers’ is defined in s 32A. That section says:

emergency services officer” means any of the following (emphasis added):
(a) a police officer,
(b) an officer of Fire and Rescue NSW of or above the position of station commander,
(c) an officer of the State Emergency Service of or above the position of unit controller,
(d) a member of a rural fire brigade of or above the position of deputy captain,
(e) a Regional Emergency Management Officer,
(f) a member of the Ambulance Service of NSW of or above the rank of station officer.

The position of ‘Regional Emergency Management Officer’ was provided for in the Act until 2012 (Emergency Legislation Amendment Act 2012 (NSW)). The relevant definition is now in the New South Wales State Emergency Management Plan – which says at [412]:

The NSW Police Force is required to provide executive support for each REMC and the REOCON in the region concerned. These personnel are termed Regional Emergency Management Officers.

The REMC is the Regional Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) s 22) and the REOCON is the Regional Emergency Operations Controller (s 24). The REOCON must be a police officer. There is nothing in the Emergency Management Plan to say that the Regional Emergency Management Officer must be a police officer.

At this stage, it appears that all emergency service officers, including a REMO, are authorised to exercises powers under s 37 and 37A. But, if we can go back to the Commissioner’s authorisation, it says:

Emergency Services Officers are:
• a police officer,
• an officer of Fire and Rescue NSW of or above the position of station commander,
• an officer of the NSW State Emergency Service of or above the position of unit controller,
• a member of a NSW Rural Fire Service brigade of or above the position of deputy captain,
• a member of the Ambulance Service of NSW of or above the rank of station officer.

The problem is obvious. This list is not a direct ‘lift’ from the Act and has omitted Regional Emergency Management Officers. So where does this leave REMO’s?

There are two possible interpretations. The first is that the statement “I hereby authorise all emergency service officers” is the relevant authorisation and that it does what it says, namely authorise all emergency service officers; and that the list headed ‘Emergency Services Officers are…’ is meant to simply restate who is an emergency services officer, and the failure to properly cite the section, and therefore to exclude REMO’s, is simply a mistake.

The alternative is that the statement is meant to be a limited authorisation, not for all emergency services officers, but for those officers listed in the authority.

Section 37(1) says:

“The Minister may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency, direct, or authorise an emergency services officer to direct, a person to do any or all of the following…”

Section 37A starts in the same terms.

The Commissioner, as the Minister’s delegate, could authorise an individual emergency services officer or in this case a limited class of such officers. That may be reasonable as he may not have wanted to give emergency powers to the ‘executive officer’ of the REMC who has no clear operational role. If the REMO is a police officer then they are authorised, but if they are not a police officer then the deliberate omission may be reasonable.

However if it was intended to be a limited authorisation it would be better if it said something like:

Pursuant to this delegation I hereby authorise the following New South Wales emergency service officers to use certain powers under the State Emergency and Rescue Management Act 1989

As it is the document is simply unclear and without further, external material, it’s not possible to reach a conclusion as to what is meant. This will only be problematic if a REMO does try to exercise emergency powers. The authorisation goes onto say:

While these powers are authorised for use, the actual requirement and decision to use then in specific cases will be determined via standard agency and inter-agency command and control arrangements.

It follows that it’s up to the police, through normal internal arrangements to determine what is the role of the person appointed as the REMO. The REMO would be bold indeed to try and exercise those powers by virtue only of this order if the exercise of those sorts of powers was not part of the police forces’ “standard agency and inter-agency command and control arrangements”. As noted, if the REMO is a police officer then this is not an issue.

Whether or not this is problematic however, it would be better if the authorisation was more carefully drafted with reference to the Act.