[A version of this post originally appeared on 2 December and dealt with questions (1) and (3), below. After that original post my correspondent got back to me with some more details and further questions so I have rewritten the post from the original and now deal with those extra issues and the further questions (2) and (4)].

I am asked about potential role conflict when a serving NSW Police officer joins the SES as a volunteer.

A couple of weeks ago a few of the members were having a chat and one of them, who is a NSW police officer, pointed out that off duty police were required to intervene if they saw something that violated the law to the point it couldn’t reasonably be ignored. A senior unit member told him that the service (SES) has a policy preventing off duty police from taking action as a police officer whilst active with the SES. This led to an interesting discussion as to the right and wrong of such a policy, and potential risk to SES team members who may be present in various hypothetical scenarios.

Afterwards I decided to find out if there was such a policy. I spoke with several people including both the Region Controller and my Local Controller and received different answers.

While the law enforcement officers in our unit know what their duties are, the grey area is how the SES views them going about their duties whilst active and clearly identifiable as SES members.

The duty of care question came up in one of the hypothetical scenarios discussed.

A team is attending a job and witnesses an assault across the road, the off duty officer goes over and attempts to stop it and both the people involved attack the officer. As the team leader and other members of the team have a duty of care to ensure the well being and safety of each other would they be required to go to the officers aid, thus endangering themselves.

For this or a similar scenario, or even a more general question like the officer needs assistance in his duties – does their team help, I have received a variety of responses from yes, whatever is needed to no, their on their own.

So my questions are,

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,
  2. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?
  3. What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?
  4. If the officer needs assistance as described in the above scenario is the team required to assist?

This is all purely hypothetical, in close to ten years as a volunteer I have never encountered any situation like this in real life.

Sworn police officers carry on the traditions from the ancient office of constable (Police Act 1990 (NSW) s 14(1)).   The office of constable is one of the oldest offices known to law and well predates organised policing. The critical aspect is that appointment to the office is personal, that is a person who is appointed a constable holds that office from the Crown, he or she carries the authority, discretion and obligation to uphold the law and keep the peace.  In R v. Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118 Lord Denning said:

I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace.

He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

The Police Federation of England and Wales (The Office of Constable: The bedrock of modern day British policing (2008)) say:

With the Office of Constable comes personal accountability and responsibility for the protection of life and property, the prevention and detection of crime, the maintenance of law and order and the detection and prosecution of offenders.

Police officers exercise their law enforcement duties and powers, not because they are members of a police force but because they are constables. People other than police officers can also be constables (Police Act 1990 (NSW) s 82L (note that the Police (Special Provisions) Act 1901 (NSW) discussed in an earlier post – Lifesavers as law enforcers? (July 6, 2014) – was repealed on 30 November 2014) and we can recall the security officers involved in the shooting at Parramatta Police Station earlier this year were identified as ‘special constables’ (ABC News Online, 4 October 2015)).

The fact that police officers exercise powers that are personal to them, that they have as individuals not because they are employees, has given rise to complex issues when it comes to vicarious liability, workers compensation and superannuation (see Are police employees? (August 11, 2014) and Law Reform (Vicarious Liability) Act 1983 (NSW)).

Today, a NSW police officer swears (Police Regulation 2015 (NSW) r 7) to:

… well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until I am legally discharged, that I will cause Her Majesty’s peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God.

Even when off-duty(Police Regulation 2015 (NSW) r 9) a police officer

(a) is subject to the provisions of this Regulation and the Police Code of Conduct, and

(b) will be held responsible for any misconduct by the officer while off-duty, and

(c) unless on sick leave, may be recalled to duty as if the officer were on duty.

What constitutes misconduct is not clearly defined (Police Integrity Commission Act 1996 (NSW) s 5). Although not specifically mentioned, failure to perform one’s duties (including the duties of an off duty officer) must be misconduct.

Discussion

We can now return to the questions asked.

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer and,

Yes, but within limits. Police have a discretion to ‘enforce’ the law, sometimes they don’t take steps, sometimes they issue a caution or have a ‘chat’ to set people straight. It is not the case that every officer has to prosecute every offence he or she observes. “He must decide whether or not suspected persons are to be prosecuted” not he must prosecute every offender he observes. [I’ll use ‘he’ as my correspondent refers to this person as a ‘he’ and to avoid the complexity of writing ‘he or she’ constantly, but recognising of course the many women in policing]. The officer in question has to consider issues such as the seriousness of the offence, conflicting duties (such as the fact they are a member of the SES team and safety may be compromised if they take on a policing role and step out of the SES team), that if he tries to exercise policing powers people are unlikely to recognise that he is a police officer (given he’ll be wearing Orange not Blue) and if people think an SES volunteer is trying to big note himself that may well lead to more, rather than less conflict etc.   But if he detects a serious offence and in particular observes a serious offence being committed then he may well determine that he must act immediately.

We can give that all some flavour.   Assume the SES are called to help with flooding at a home and whilst there the officer observes that there is a hydroponic drug farm in operation. He might decide that given he’s the only police officer there, that discretion is the better part of valour and that he will make a statement to record what he observes and either contact police and ask them to attend (as any SES operator might do) or return later, on duty and with a search warrant, to enforce the law.   This may be reasonable if there is no suggestion that the offenders or evidence are likely to be removed and if the people involved have no reason to think, at that stage, they have been observed by police.

On the other hand, if when attending an SES task he observes that a person is committing an offence, perhaps they are engaged in act of violence or at a road crash the driver is obviously intoxicated and attempting to run away, then the officer may well have to put himself back ‘on duty’ and make an arrest.

  1. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?

I’m not aware of such a policy but I don’t need to go and look for it because such a policy, if it did exist, would be meaningless and unenforceable. The SES can’t tell a police officer to ignore his or her sworn and statutory duty any more than it could tell a doctor not to treat a person who needs medical care or tell a driver, or anyone else, that they are not required or allowed to comply with the law.

  1. If so, what responsibilities does this place on his team leader and other team members in such an event, re: duty of care, etc?

Like anything it means you have to plan for such an eventuality. I suspect the issue is largely theoretical (ie it won’t happen often if at all) but clearly you need to think about ‘what are we going to do if…’ and have a plan. Speak to the officer involved about what he thinks could happen and what is an appropriate response. What circumstances does he envisage that will compel him to step out of his SES role and back into his police role? What will you do if that happens? Is there any limitation that his policing role puts on his volunteering?

  1. If the officer needs assistance as described in the above scenario is the team required to assist?

That’s a more complex question – but I think ‘required’ is the problem.

One of the functions of the SES is to ‘to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency’ (State Emergency Service Act 1989 (NSW) s 8(1)(g)). That can’t be seen as a clear obligation, police (or the other emergency services) could ask the SES to assist and the SES could reasonably say they are unable to do so if they don’t have the resources or the task they are being asked to do is beyond the training or capacity of the members or is too dangerous.   Fire and Rescue NSW could ask the SES to send members into a burning building to rescue people and the SES could rightly refuse. Police could ask the SES to provide members for an armed response team and again the SES could rightly refuse. It follows that if the police officer decides to intervene in a violent incident he could request SES assistance and the SES could assist, but they would not be ‘required’ to given such an action is well outside SES roles and responsibilities. It would, however, be a ‘bad look’ if the SES refused to assist not only a police officer but a fellow member if that member required assistance and if the members were reasonably capable of providing such assistance. The idea that one SES member, albeit a police officer, is struggling to make an arrest whilst his colleagues, also dressed in Orange, did nothing, cannot really be imagined. If they did assist the members would certainly be performing an SES function.

Putting aside that the people are members of the SES anyone can go to assist police should the police require it but there is no obligation to do so. Equally anyone can make an arrest if they observe a person ‘in the act of committing an offence’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100).

Certainly there would be a WHS issue to ensure so far as is practicable the health and safety of the members. There would not be a duty to protect the police officer who at that point is acting as a police officer/constable not a member of the SES and one would have to consider the risk to the other members but as always the obligation is not to ensure no risk (if it was the SES wouldn’t turn out to do anything). Going to help a police officer to make an arrest in times of risk to the officer and oneself is the sort of conduct that leads to a medal, not a WHS prosecution!

Conclusion

  1. Is a police officer who is off duty and on callout with a SES team still expected to enforce the law and keep the peace as a police officer?

Yes

  1. Does the SES have a policy preventing law enforcement officers who are active with the SES from doing their duty if required?

Not that I’m aware of, but if it did it would be meaningless and unenforceable.

  1. What responsibilities does the officer’s duties place on his team leader and other team members in such an event, re: duty of care, etc?

To plan for such things, as you must plan for many eventualities such as where members leave a team due to injury, or some other emergency occurs in the vicinity of the team and takes them away from their original task.

  1. If the officer needs assistance as described in the above scenario is the team required to assist?

Required? No; able to? Yes. Should do? Depends on all the circumstances.