I have been asked this question about relationships between Fire and Rescue NSW and the NSW Rural Fire Service.
I would like you to advise on the following matter concerning rescue response. Sometime ago a MOU was signed in a particular region between NSW Rural Fire Service (RFS) and Fire & Rescue NSW (FRNSW) with the intention to set out how both services respond to fire calls in a given area.
The way the MOU has been interpreted due to the MOU referring to “all incidents” now sees the local RFS brigade being responded to all and every incident under the MOU, including all rescues.
This was never the intention of the MOU, it was written meaning “fire incidents” and not HAZMAT, rescues or storm damage.
That said, as FRNSW responds the RFS they turn out the RFS to every incident because the computer system flags the RFS to respond to every incident including non-fire related rescue incidents, for example, a child with their finger in a plug- hole!
Section 52 of the SERM Act 1989 clearly states what the definition of a rescue unit is. The RFS have no rescue units in NSW. Furthermore, S.118 of the State Rescue Board Policy (SRB Policy) states accreditation must be approved by the Minister. The RFS have no approval by the Minister to respond to rescue incidents as a rescue unit.
Then at S.2.15 of the Policy it states it is illegal under the SERM Act for non-accredited rescue units (read RFS) to respond without the authority of the police. That said, it is clear that NSW Police Force can call any resource to a rescue under S.1.14, but it is not the police but FRNSW Communications responding the RFS to rescue calls.
At S.2.10 the policy mentions response to motor vehicle accidents with persons trapped. Here it states that the fire service with the operational jurisdiction for the area is to respond and provide fire protection. Again, FRNSW Communication Centres respond the RFS to provide fire protection despite the call being well within FRNSW Fire District….and all because of the word “all incidents contained within the MOU”.
It is clear under S.2.11 of the SRB Policy that not all emergency services maybe required to attend all rescues. That aside, the RFS have no rescue training (GLR), equipment or accreditation.
On the balance of the above, are FRNSW through their Communication Centres in breach, or at the very least not carrying out the intention of the SRB Policy, by responding the RFS to all rescues incidents in the operational area which the MOU covers?
Notwithstanding the above, there is not a shadow of a doubt the RFS are not an accredited rescue unit, the RFS are not trained in rescue and it clearly states it is illegal to respond to such incidents without the approval or the request of the police. Would you advise that action be taken through official channels to have the response of the RFS to all rescue calls, as described, changed to be in-line with SRB Policy? Is the action of FRNSW Communication Centres illegal as described in the Policy?
Your professional consideration of the above matters would be greatly appreciated.
The State Emergency and Rescue Management Act 1989 (NSW) does provide for State Rescue Management (part 3). The Act establishes the State Rescue Board that is to ‘ensure the maintenance of efficient and effective rescue services throughout the State’ (s 47) and to ‘make recommendations to the Minister on the accreditation of rescue units (both permanent and volunteer) for participation in rescue operations’ (s 48(1)(h)). Police are required to coordinate all rescue operations (s 50). It is an offence to operate a rescue unit (that is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52)) or operate a rescue vehicle (that is, a vehicle that is designed, adapted or equipped for use in rescue work and: (a) is clearly marked with the word “Rescue”, or (b) is fitted with warning devices, such as flashing lights or a siren, or both (s 52)) is without appropriate accreditation (s 53) from the Minister (s 54).
The Board is to ‘make recommendations to the Minister on policy matters relating to the provision of rescue services within the State’ (s 48(1)(b)) and an accredited rescue unit is to give effect to the Board’s decisions (s 49).
The Board has published four policy statements (available at http://www.emergency.nsw.gov.au/publications/legislation_polices_guidelines). They are the:
- State Rescue Policy;
- Flood Rescue Policy;
- State Rescue Board Mandatory Equipment Lists; and
- Vertical Rescue Directive.
I will accept, without verifying, that the RFS has no accredited rescue units. Paragraph 1.18 of the State Rescue Policy does refer to accreditation by the Minister but that is simply restating what the Act requires. It is true that police, when exercising their obligation to coordinate rescue (State Emergency and Rescue Management Act 1989 (NSW) s 50) can ‘call-out any resource whether accredited or not to undertake a rescue or to assist in a rescue’ (State Rescue Policy [1.14]). I assume that Fire and Rescue NSW is the primary accredited rescue unit for the relevant area (State Rescue Policy [1.30] and [2.01]).
Paragraph 2.15 of the State Rescue Policy says ‘It is illegal under the provisions of the Act for non-accredited units to respond to call-outs for rescue without the approval of the NSW Police Force’. That’s not quite correct. The Act says that it is an offence to maintain a rescue unit, or have a rescue vehicle without accreditation. It says nothing about ‘turning out’ and the RFS I assume, does not claim to have a rescue unit nor are any of its trucks ‘clearly marked with the word “Rescue”’; so the RFS is not committing the offence provided for in s 53.
The NSW Rural Fire Service is ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a)). The Service is also ‘to assist other emergency services organisations at incidents and at emergencies under the control of those organisations’ (s 9(1)(b)).
So where does that leave us? Fire and Rescue NSW receive a call and respond both their own unit and the RFS. There is no offence here (there is certainly no breach of s 53) and the RFS is meeting its obligation to assist FRNSW. It may be that FRNSW have explained to the police and the local rescue committee (s 48A) of the MOU and that they will dispatch the RFS to ‘all incidents’.
In short if the MOU says ‘all incidents’ then what else are ComCen to do? This is just an example of bad drafting and a misunderstanding. The action of FRNSW Communication Centres is not illegal, nor is the action of the RFS in turning out when called. If the police object to the RFS response they should raise that with the fire agencies. If RFS volunteers don’t want to turn out to these events as they don’t think that was intended or they have nothing to contribute then the appropriate response is not to point to law or suggest that there is some illegality, rather it is to revisit the MOU and amend it so that it says what was intended.