A member of the NSW SES asks:
Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues? (This question is not meant to look at life threatening scenarios.)
I’ll provide you with a hypothetical scenario as it provides more context…
A home owner calls the NSW SES for the first time due to storm damage in their yard. The storm damage appears to be caused by lack of owner maintenance and something from council. The location of buildings etc on the property are a major contributing factor to the problem. The team attends, places some property protection, does the maintenance the owner should have done, and tells the owner to fix the cause of the problem or at minimum perform maintenance. Some of the problem is due to an issue on council property, Council proceeds to fix their side of the problem. In a period of under 2 years, the home owner calls the NSW SES several times. Same action is taken and advice is given by SES team as on previous calls. The home owner gets to a point where they are calling “because it might happen”.
The State Emergency Service Act 1989 (NSW) s 8 says:
(1) The State Emergency Service has the following functions:
(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis…
(b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities…
There are two issues to note:
- There is no definition of what is a ‘storm’ as opposed to ‘some rain’ or ‘a windy day’ (see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015);
- Sections 1(aa) and 1(b) do not refer to an ‘emergency’ response. Although the agency is the State Emergency Service there is very little reference to ‘emergency’ in the Act. Part 5 (ss 18A-24) deals with ‘Emergencies and Emergency Powers’ and applies during emergencies caused by floods (s 19) but what is an ‘emergency’ is not defined. The State Emergency and Rescue Management Act 1989 (NSW) defines an ‘emergency’ as
… 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.
If that is the relevant definition for the State Emergency Service Act one can see that organising a massive response where whole communities have been affected is an emergency, but responding to damage to a single house is not. But as I’ve noted, ss 1(aa) and (b) don’t refer to an emergency. In the scenario I’m given the householder’s property is at risk of damage arising from a storm. One could say that the risk was also due to the homeowners lack of care but that would be true for every job – and if one took that to its logical extreme, the SES would only turn out to overwhelming events where no amount of preparation and enhanced building standards would have prevented the damage. That could be a reasonable approach but it would stop the SES from responding to anything.
I ask myself could the SES impose a limit and say, for example, everyone is entitled to two calls for the same problem but no more? That would be politically difficult and a person denied service would no doubt go to ‘A Current Affair’ or the Daily Telegraph with their story of woe particularly if they couldn’t afford to have the work done, or they were a tenant and the landlord refused to do the work, or they had arranged for it to be done but were still waiting for the tradie to find the time etc. But if they want to law what would happen?
They could seek a remedy under administrative law in effect requiring the SES to perform its functions. An agency like the SES has a wide discretion on how it gives effect to its Act and performs the functions required of it. If the SES had a clear policy that ‘we do x, but we don’t do y’ and if that policy was a reasonable approach then failure to do ‘y’ would be ok. For example, to take s 8(1)(aa) to its logical extreme, the SES should be out making sure everyone’s home is StormSafe but it doesn’t. A person could say that ‘given every time it rains my home floods the SES should come and do the repairs and that would be consistent with s 8(1)(aa) as it would be protecting ‘property from destruction or damage, arising from … storms’. It may be consistent with s 8(1)(aa) but it doesn’t mean the SES has to do it. The SES has to consider its resources and all the calls on those resources and make decisions on what it does and doesn’t do. A fire brigade isn’t going to turn out because last time a person used the toaster the fire alarm went off and it might happen again; equally if it’s the rule being applied to everyone, the SES isn’t going to turn out because last time it rained a homeowner got wet so not responding “because it might happen” is fair enough if it’s consistently applied. So the SES does have some policy, even if its unstated, on what it does and does not do. The SES responds to water coming in the home, but does not actually make homes StormSafe.
It’s probably the case that if the SES also had a clear policy on the number of responses they would make in non-life threatening situations that could also be defended but it would have to be expressly stated and made clear to a person who had made the relevant number of calls. But if that was a policy position a person might find little sympathy if they sought some sort of order to require the SES to keep turning out. As it is I’m not aware of such a policy and so it’s not, in my view, open to a unit to decide that a person is simply relying on the SES when they could take action to help themselves.
SES as a public good
As an aside, I do think it is legitimate to question why the state does provide an emergency service response to a single house impacted by a storm. If a fire breaks out in a home the community has an interest in making sure it’s extinguished to stop it spreading, but if water enters a roof why is it anyone’s problem but the homeowner? If the homeowner has insurance, there is no doubt that the insurance company would respond if the SES did not as they want to minimise the loss and therefore the cost. And if the homeowner is not insured, why isn’t that their problem? That insurance companies have the most to gain no doubt in part explains why they pay 73.7% of the costs of providing the SES (State Emergency Service Act 1989 (NSW) s 24F; the State pays 14.6% and local councils 11.7%). If the SES refused to turn out to events impacting upon a single home so that insurance companies had to set up their own response service they would, not doubt, protest the imposition of the SES Contributions.
So the SES is the insurance companies’ response agency but to avoid the old fashioned disputes that occurred when insurers provided fire brigades and brigades would only fight first where the property was insured, the SES is provided as a public good. That is, it is provided to everyone and it’s a public good because no one insurer or homeowner could afford to provide the state wide, and urgent response, that the SES can provide. By requiring everyone to contribute to the cost (via taxes and premiums) everyone gets a benefit they could not afford if they had to pay for it on a ‘user pays’ basis. If I understand my undergraduate economics studies, I think that is a classic example of a public good.
The question asked was:
Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?
On my current understanding the answer is ‘no’. It could be ‘yes’ but only if the State decided to adopt and implement a policy consistently across the State. It would certainly not be open at unit level to make that decision about a particular home owner, on what might be called an ‘ad hoc’ or case-by-case basis.