Following the 2013 Tasmania fires, the post event inquiry was critical of the command and control arrangements that were put in place. The final report said (p 66) “The 2009 Victorian Bushfires Royal Commission examined the role of leadership and was concerned about divided responsibility and the need to identify a single individual who had clear responsibility for the control of the response to major bushfires.” The Tasmania Special Investigator agreed and said, at p 69, “Emergencies are not the occasion for disputes or uncertainty about who is in charge of command, control or coordination to occur.”
In my last post on authorised emergency service officers, I referred to an Authorisation of Powers issued by the Commissioner of the NSW Rural Fire Service who in turn, was acting as the Minister’s delegate under the State Emergency and Rescue Management Act 1997. That got me to thinking ‘who is actually in charge of this event’?
To recap the event is the current NSW bushfire emergency. On 20 October 2013 the Premier, the Hon. Barry O’Farrell declared a State of Emergency pursuant to s 33 of the State Emergency and Rescue Management Act 1989 (NSW) (http://www.austlii.edu.au/au/legis/nsw/num_reg/searma1989odsoeirobf2013603l20o2013936.pdf). That declaration would have remained in force for 30 days, but it was in fact revoked on 30 October (http://www.austlii.edu.au/au/legis/nsw/num_reg/searma1989ordosoeirobf2013629l31o20131075.pdf).
During the period of the declaration, the Minister for Police and Emergency Services had extensive powers to direct government agencies (s 36); order evacuations and other safety measures (State Emergency and Rescue Management Act 1989 (NSW) ss 37 and 37A); enter premises (s 37B), including with the use of force (s 37E) and commandeer private property (s 38). Not surprisingly the Minister may not be able to do all those things personally so he could authorise others, in particular emergency services officers, to do those things and he could delegate his own decision making powers to others (s 10(4)). According to the authorisation issued by the RFS Commissioner the Minister had delegated his authority to the Commissioner.
So who’s in charge? The Premier has made the declaration but has no clear operational role but, as the Premier, is responsible for leading the government and its response. It is consistent with international best practice that the person making the declaration is not then empowered to exercise extraordinary emergency powers for fear that a declaration will be made for their benefit rather than the communities. It is therefore consistent with that practice that the Premier should make the declaration, but it is the Minister who is then given extraordinary emergency powers.
The Minister is responsible for ‘ensuring that adequate measures are taken by government agencies to … respond to and assist recovery from emergencies, and (b) [for] co-ordinating the activities of government agencies in taking those measures’. The Minister may have delegated his authority to the Commissioner but that does not represent a delegation of responsibility. The Minister remains responsible for ensuring that adequate measures are taken by his delegate.
The Commissioner as the delegate is also responsible for exercising the Minister’s powers to achieve those objectives. The Commissioner is also responsible for his functions under the Rural Fires Act, that is he ‘is responsible for managing and controlling the activities of the Service’. Assuming a declaration was made under s 44 of the Act (I can’t imagine that it was not, but I can’t find evidence of that declaration) the Commissioner is ‘is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State’.
At the same time, for each fire an incident controller is to be appointed (NSW State Bush Fire Plan, ). According to the Australian Inter-Agency Incident Management System (or AIIMS) the Incident Controller there should only be one incident controller and he or has “The ultimate responsibility for managing an incident always remains with the Controller whether or not an IMT has been established” (AIIMS, 4th ed, p 70). In my book, Emergency Law (4th ed, Federation Press, 2013) I argue:
During the 2009 Victorian Bushfires Royal Commission, the chief officer of the Country Fire Authority, the chief fire officer from the Department of Sustainability and Environment and the Chief Commissioner of Police were criticised for their failure to supervise their staff including the incident management teams. The Royal Commissioners said:
The Commission observed a disturbing tendency among senior fire agency personnel – including the Chief Officers – to consistently allocate responsibility further down the chain of command, most notably to the incident control centres.
That would be consistent with the view in AIIMS that, having appointed an incident controller it was up to that controller to exercise control over the response. The Royal Commission noted, however, that:
Although the Country Fire Authority Act 1958 vests responsibility for controlling the prevention and suppression of fires in country Victoria in the Country Fire Authority as an organisation, CFA standard operating procedures make it clear that within the agency ‘ultimate responsibility for the suppression of fires’ rests with the Chief Officer.
The right of the Chief Officer to control ‘all brigades’ is set out in statute. An incident controller has no similar, statutory authority. The incident controller is appointed by the Chief Officer to exercise the Chief Officer’s powers but such a delegation does not “amount to an abrogation of responsibility or a transfer of accountability”.
The situation is even clearer in other jurisdictions for example, in New South Wales, the State Emergency Service Act 1989 (NSW) provides that “… the Commissioner is to have overall control of operations in response to an emergency to which” the Act applies. In a bushfire it is the Commissioner, not an incident controller, who is to “take charge of bush fire fighting operations…”
It follows that absent any statutory authority, incident controllers appointed in accordance with AIIMS are subject to the direction and control of their senior officers. As employees they are subject to the reasonable direction of their employers. Further legislation that gives emergency powers to the chief officers and vests those chief officers with command of the fire brigades means that incident controllers remain subject to any direction that those senior officers may give on the exercise of the special emergency powers and authority.
It would be more accurate to say “The ultimate responsibility for managing an incident always remains with the Chief Officer/Commissioner whether or not an Incident Controller has been appointed; and an incident controller remains responsible to the Commissioner/Chief Officer for all operational decisions whether or not an IMT has been established”.
The Commissioner of Police is the State Emergency Operations Controller or SEOCON. The SEOCON is ‘responsible for controlling in accordance with this Act the response to an emergency’ but not ‘if there is a single combat agency primarily responsible under the State Emergency Management Plan for controlling the response to the emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 19). Under the NSW State Emergency Management Plan the NSW Rural Fire Service is responsible for managing a bushfire within a rural fire district and as noted the Commissioner is responsible for coordinated bushfire fighting under s 44. The SECON would not therefore exercise a controlling role unless directed to by the Minister or with the consent of the RFS Commissioner (s 19(1B)).
The ‘loose cannon’ is the police. The declaration of an emergency gave the Minister the power to exercise a variety of emergency powers including the power to evacuate. The police have those powers without the need for a declaration of a state of emergency and may exercise them on their own initiative (ie without reference to the Rural Fire Service, at local, regional or state level) (see State Emergency and Rescue Management Act 1997 (NSW) ss 60L to 61E). Those powers may be essential to ensure rapid, effective on the ground response to changing conditions, but could conflict with the ideal, in AIIMS, that the incident controller is to be in charge of local decisions such as the decision to evacuate.
Regardless of actual, on the ground experience, where communication may be difficult and responsibilities delegated, it does appear that ‘who is in charge’ was and is reasonably well answered in New South Wales. Given the declaration of the state of emergency, the person ultimately responsible for ensuring an effective response was the Minister. The person with practical responsibility, and with ultimate command responsibility was the Rural Fire Services Commissioner. The fact that the SEOCON does not have direct control responsibility unless directed to take that responsibility by the Minister, or at the request of the combat agency, means there is no room for confusion as to who is in command. This is quite different to other states where the police have more extensive command, control and/or supervision responsibility or where the provisions to transfer control from the designated combat agency to police are much more ambiguous.