The comment below, was posted as a comment to my post, ‘NSW SES Emergency and Senior Emergency Officers, and the police’ (10 July 2014) but I thought it warranted a post in its own right. Further by putting it up as a post it is automatically sent out to subscribers who I thought would be interested in the further development of the ideas and who may not see it if it appears as a comment to the previous post. (And on that point, if you are interested in ‘Entering private land to extinguish a fire in Melbourne‘ but have missed the discussion that appears in the comments to that post, you should go back and have a look at how the discussion has refined the issues and clarified our thinking).

Now to the issue: my correspondent was referring to the State Emergency and Rescue Management Act 1989 (NSW) (‘the SERM Act’) when she said:

S50(3)(b) states “…which results from an emergency..”

If the SES is responding to a flood situation in which they have not engaged other agencies, ie managing within the capabilities of their own organisation locally, and hence not a “significant and coordinated” response….how does that section apply or not apply?

A scenario may include that a causeway is swollen with water caused by heavy rainfall. However the river has not breached its banks. The SES is responding within its capabilites to the rain event and not requiring the engagement of other agencies to assist them. A car becomes trapped on the causeway and the occupants require rescue.

It is accepted that rescue agencies will be responded and work together to achieve the best outcome as a matter of course, however….

Is this a situation where s50(3)(b) and other references apply with SES having responsibility to coordinate as the river is not in flood (under the definition of a flood)? Is SES still determined as the coordinating agency though it may not be an emergency in the context of definition under the SERM Act?

The SERM Act s 50 says “The NSW Police Force is responsible for co-ordinating rescue operations and for determining the priorities of action to be taken in rescue operations” but not if the rescue operation results “from an emergency and which is subject to the control of another agency” which, in the case of a flood or storm, is the SES (see ‘NSW SES Emergency and Senior Emergency Officers, and the police’, 10 July 2014).

Rescue “means the safe removal of persons or domestic animals from actual or threatened danger of physical harm” (SERM Act, s 3).  And “emergency”:

‘means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.’ (SERM Act, s 4).

Some interesting things about the definition of ‘emergency’; first it is circular, it starts by saying ‘“emergency” means an emergency …’and the most basic grammar tells you not to use the word you are defining in the definition.   Putting that aside it also means many things that the emergency services go to, a heart attack, a small fire etc are not an ‘emergency’ as they don’t require a ‘significant and coordinated response’.   The term can’t be universal (ie mean the same each time it is used) because it would have silly implications if it did.  For example to go back to a favourite topic, the Road Rules 2008 (NSW) where an emergency vehicle is a vehicle driven by an emergency worker and an emergency worker is amongst others, a member of the ambulance service, SES, Rural Fire Service or NSW Fire and Rescue ‘providing transport in the course of an emergency’ (Road Rules 2008 (NSW) rule 4 and Dictionary).  If ‘emergency’ meant the same as it does in the SERM Act, an ambulance officer could not claim any exemption from the road rules when proceeding to assist someone with a heart attack as that’s not an ‘emergency’ as defined here.  Clearly that’s a silly outcome and ‘emergency’ in the Road Rules must have a different meaning to the definition here.

Putting those issues aside, a flood is defined in the New South Wales State Flood Sub Plan (June 2008, x) as:

 Relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences.

That definition is adopted in the State Rescue Board Flood Rescue Policy (August 2009, [2]).  ‘Storm’ is not defined in the NSW Storm Emergency Sub-Plan (September 2013).

Taking these definitions into account, and the role of the SES as the lead agency for the response to floods, storms and tsunami, we can rewrite s 50 to read:

“The NSW Police Force is responsible for co-ordinating the safe removal of persons or domestic animals from actual or threatened danger of physical harm and for determining the priorities of action to be taken when organising the safe removal of persons or domestic animals from actual or threatened danger of physical harm but not if the safe removal of persons or domestic animals from actual or threatened danger of physical harm results from an actual or imminent occurrence (such as relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences, storm or tsunami) which: (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response’ and which is the subject to the control of the SES.

Let me now return to the comments, above.  If the SES is responding to a flood situation in which they have not engaged other agencies, ie managing within the capabilities of their own organisation locally, and hence not a “significant and coordinated” response’ then it’s not an emergency (as defined in the SERM Act s 4) so arguably s 50, and in particular s 50(3) does not apply and the rescue is the responsibility of the police; but I don’t think that’s correct.  If the SES turn out and do the rescue entirely on their own then the whole issue does not arise.  If however, the police decide to coordinate the safe removal etc then by definition it is requiring a coordinated response as at least the SES and police are involved and also, presumably, ambulance.  I think it would be splitting hairs to says it’s not a ‘significant’ response.  If there is a flood then it’s a flood rescue and the SES are in charge and having that clearly set out is the very point; so that everyone knows, or should know, who is in charge and avoid turf wars.

But what if it’s not a flood – my correspondent suggests a ‘causeway swollen with water’ which could be a flood if it is ‘local overland flooding associated with drainage before entering a watercourse’.  Alternatively if the causeway is swollen due to ‘heavy rainfall’ that may be a rescue caused by a storm; in either case the SES are in charge.

Let us consider another scenario: a car that’s run off the road into a creek where the rescue requires the sort of capability that the SES have developed to respond to floods but there is no actual flood or storm.  In that case you would have to say s 50(3) does not apply.  That’s a motor vehicle accident.  The police are in charge of the coordination and would normally call the primary accredited rescue unit but given the fact that the people are trapped in water, they may decide the specialist flood rescue skills are required even though there is no flood.  It would then be up to them to call the SES even if NSW Fire and Rescue or the Volunteer Rescue Association provide the primary rescue service.  I think again that is the whole point of s 50 to put someone in charge of making the decision of who should do what. (For a related discussion, see ‘Meaning of ‘marine’ and ‘land’ rescue in NSW’, 18 June 2012).

If there’s a dispute about whether the car is trapped in a swollen river and is it a flood, or a storm or just a motor vehicle accident hopefully wise heads will prevail to ensure that the person is rescued and the police and SES are not standing about arguing over jurisdiction.   Nice debate of law may resolve that issue later – but not at the time that rescue is required.