This is a concerning scenario – my original correspondent provided more detail but to keep the question general I have edited the original question.

My SES Unit was asked by Police to help search for a mentally disturbed person who was known to be armed with a knife.  The person was believed to be a threat to themselves not to others.  Even so the police involved in the search were wearing their normal appointments (gun, baton, capsicum spray, Tazers).   SES members were however tasked to the search and there insufficient police numbers to ‘buddy’ each SES member with a police officer.

On member raised a concern as to safety and was advised to “call on the radio” but there were not enough radios to go around and one could have been subject to a quick and violent surprise attack with no chance to call for help; and what could another member do who might have been close by?

I know I could have just “unvolunteered” and went home but that would not help my fellow members.  I know the normal rules for self-defence apply but we had nothing to protect ourselves should the person have used a knife against us.

  • Could we reasonably “arm” ourselves knowing the level of threat they are being sent into? Could one, considering its rough bushland carry a non SES issue, knife or machete? Or pick up a big stick?
  • If all SES members refuse to help, what could the Police do?
  • Does the SES response cover this situation?
  • Who will be responsible for any injury to a SES member. Police or SES?
  • Who will support any SES member, who injures such a person in this type of incident, against any legal threats civil or legislation?
  • The Police would be operating under the NSW Mental Health Act, Where does the SES members stand under this Act in this situation?

The law of self-defence is set out in an earlier posts see

‘Arming’ oneself is difficult.  Of course carrying a stick is not in itself an offence.  Carrying a knife might be illegal, carrying a machete would be.    An offensive implement is ‘anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property’ (Summary Offences Act 1988 (NSW) s 1B(3)).  It is an offense to have an offensive implement in a public place (s 1B(1)).

If you are carrying a stick or a knife or a machete for the purpose of ‘injuring’ or ‘menacing’ a person that is an offence unless you have a ‘reasonable excuse’.  One might argue that looking for a missing mentally disturbed person gives rise to a reasonable excuse.  In Taikato v R (1996) 186 CLR 45 Mrs Taikato argued that carrying a ‘pressurised canister of formaldehyde’ was lawful.  She told police ‘she had had the canister for a few years and that, although she had never used it, she carried it so that she could defend herself if someone attacked her’.  The High Court of Australia rejected her argument. They said that although using a weapon may be lawful in self defence.  Chief Justice Brennan along with Justices Toohey, Mchugh and Gummow said:

The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted…  Because the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack, it makes no sense, absent an actual or threatened attack, to talk of possession for self-defence as a “lawful purpose”. Self-defence in the colloquial sense is not a “lawful purpose” … Action in self-defence can only be taken for a “lawful purpose” when there is a lawful right entitling the person in danger of attack to take certain limited steps to use force against another person. It is only after the circumstances of the attack and the defendant’s response are evaluated that a court can determine whether the person was exercising the right of self-defence. Only then can it be determined whether a particular weapon was used for a “lawful purpose”. Accordingly, possession of a dangerous article for the purpose of “self-defence” is not possession for a “lawful purpose” …

Whether it’s a ‘reasonable excuse’ requires consideration of:

(a)        the immediacy of the perceived threat to the person charged; and

(b)        the circumstances, such as the time and location, in which the thing was possessed; and

(c)        the type of thing possessed; and

(d)        the age, characteristics and experiences of the person charged.”

For the SES volunteers in this question the ‘immediacy’ of the potential threat is much closer than for Mrs Taikato, but even so the question of whether or not ‘arming’ oneself was reasonable can only be determined after the fact taking into account all the factors.  It’s hard to imagine a court would accept the SES arming themselves with a knife was ever a reasonable response to the risk as other responses are available.  In short I would suggest it would not be ‘reasonable’ for the SES to arm themselves with a stick or a knife.  If members are that concerned, they should simply refuse to take part in the search.

If the SES members refused to help, the police would have to find another solution, perhaps call in more police.   No doubt they could complain to SES higher authorities but the better response would be to refer the matter up the chain of command of both organisations.

Does the SES response cover the situation?  I’m not sure what is meant by that but one of the functions for the SES is ‘to assist, at their request, members of the NSW Police Force … in dealing with any incident or emergency (State Emergency Service Act 1989 (NSW) s 8(1)(g)).   Taking part in this search would be a legitimate SES function.   It follows that if a member of the SES were injured they would be entitled to compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).

Whether anyone would be found to be negligent or liable under the Work Health and Safety Act 2011 (NSW) would depend on all the circumstances and what happened.  Remember that under the WHS Act the PCBU has to consider what is ‘reasonably practicable’ which includes

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Importantly there would be a risk in not searching for the person. The delay that may be occasioned in bringing more police to the scene may make that risk bigger. If the belief that the person is only a threat to themselves is based on the best available intelligence then it may be that even though it would be better to use police that is not ‘reasonably practicable’.  In all the circumstances it may not be a breach of the WHS Act to use SES Volunteers but, one has to remember, that assessment really is a case by case judgement.

Assume the SES member did ‘arm’ him or herself and used that weapon when they found the person.  In terms of civil litigation, members are not liable for acts ‘done in good faith’.  Whilst that could be debatable one has to remember that the aim of civil litigation is to ensure a person who is entitled to compensation receives it.    Actually arming oneself particularly with a machete may make the good faith argument hard to sustain but given the members were tasked with the search and depending on the specific instructions given, I suspect a court would want to find the SES (and so the NSW government) liable (should there be any liability) rather than a member.

Criminal liability is personal.  That means if the member were charged with an offence under the Summary Offences Act or assault or worse where force is used in circumstances that do not amount to lawful self-defence then it is the individual who is liable.  Even if the government agreed to pay the fine, the SES or the police don’t get the criminal record or go to gaol on the member’s behalf.

Members of the SES don’t have any authority under the Mental Health Act 2007 (NSW).  Police may apprehend a person who is mentally ill and posing a threat to themselves or others. They may do that on their own initiative (s 22) or at the request of a treating medical practitioner (ss 19 and 49) or paramedic (s 21).     The SES could assist the police in the search but have no specific power to detain the person if they find them.  The police can of course ask for assistance so if a police officer were attempting to detain the person the SES could help because it is actually the police officer that is exercising the authority.  Police may use ‘reasonable force’ in the execution of their duties (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 230) and just as that may include the use of a dog, so too calling upon the SES to ‘lend a hand’ to restrain someone may be a ‘reasonable’ use of force.    If the SES found the person, and he or she was not acting violently or threatening suicide, the best action would be to try and keep everyone calm and wait for the arrival of police or, ideally, a mental health professional.  If the person was trying to kill him or herself it is lawful to use reasonable force to prevent a suicide (Crimes Act 1900 (NSW) s 574B).

Important disclaimer

Clearly I am not making comments that could be applied to the specific search.  I do not have all the facts or know the circumstances so this has to be read as a general statement of some relevant legal principles. If the members are concerned about the risk they were exposed to this should be raised through an appropriate chain of command rather than debated here.   As noted this has to be read as an exploration of general principles only.