Today’s question comes from:
… a member of 2 NSW Emergency Services, I know the legislation for each agency, and they both are quite defined and powerful. I also know of a recent incident where there was an overlap and there was a significant grey area as to responsibility and who was in control of the incident. I know the ideal world would have no issues, however during emergencies and disasters, publicity and ego’s get in the way and lines get even more blurred.
The Incident: Gas Cylinders floating in flood water that was beyond the confines of the normal path of the river that was in flood… FRNSW could be defined as the Combat Agency as it was a HAZMAT incident, however it occurred in flood water that has NSWSES as the Combat Agency.
So, my question is: Who’s responsible for this incident overall, i.e. which agency reports to the other as the Incident Controller.
The Fire Brigades Act 1989 (NSW) says (at s 6(2)):
It is the duty of the Commissioner to take all practicable measures:
(a) for protecting and saving life and property endangered by hazardous material incidents, and
(b) for confining or ending such an incident, and
(c) for rendering the site of such an incident safe.
The State Emergency Service Act 1989 (NSW) says (s 8(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,
(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities…
It is also a function of the SES to ‘to assist, at their request, members of … Fire and Rescue NSW … in dealing with any incident or emergency’ (s 8(1)(g)).
One can see the argument. If the gas bottles are posing a threat to ‘life and property’ then presumably they’re a hazardous material and it’s the job of Fire and Rescue NSW to make it safe. Equally flood waters are full of all sorts of hazards. As NSW SES says ‘Floodwater can contain things like rubbish, dead animals, sewage and other contaminants such as poisons. It is safer to stay clear of floodwater. It is not a place to play.’ If the SES have the function to ‘protect persons from dangers … arising from floods’ then this is just another danger.
So who’s in charge? The state emergency plan is required to ‘identify, in relation to each different form of emergency, the combat agency primarily responsible for controlling the response to the emergency’ (State Emergency and Rescue Management Act 1989 (NSW) s 12(3)(a)). The doctrine set out in the Australian Inter-agency Incident Management System (AIIMS) is that the combat agency has an incident controller who is responsible for the response. But that doesn’t help define whether this incident is best classified as a flood incident where the SES require the assistance of NSW Fire and Rescue; or a hazardous materials incident where Fire and Rescue require the assistance of the SES.
If both agencies are on scene, one would hope that it would not come down to who is the incident controller, as the agencies would work together. They would assess the risk – what’s the water doing? What are the gas bottles going to do? How dangerous is it? Do the SES members really want to handle the hazardous material? Do the fire crews really want to enter the flood water and do they have a boat? If it’s a flood and the SES provide the IC, he or she can call on Fire and Rescue to deal with the hazardous materials and no doubt the SES floodwater technicians will help if required. If it’s a hazmat material and fire and rescue provide the IC then they could call on the specialist flood water technicians and flood boat operators to help if required.
But there is some law. For each local area, there is a police officer appointed as the Local Emergency Operations Controller (or LEOCON) (State Emergency and Rescue Management Act 1989 (NSW) s 30). The LEOCON is ‘responsible for controlling … the response to an emergency that affects only that area’ but not if ‘there is a single combat agency primarily responsible under the State Emergency Management Plan for controlling the response to the emergency…’ (s 31). But if there really is a disagreement about whether, in this example, it’s a flood or a hazmat incident there is no ‘single combat agency’ so the LEOCON could take control and give directions to both Fire and Rescue and the SES to play together.
Ultimately the ‘State Emergency Operations Controller may assume responsibility for controlling the response to an emergency from the combat agency primarily so responsible under the State Emergency Management Plan if:… in the case of any disagreement on the matter, the Minister has directed the Controller to do so’ (State Emergency and Rescue Management Act 1989 (NSW) s 19).
If the commanders on scene can’t work together so that the matter gets elevated to the LEOCON or worse, to the State Emergency Operations Controller (which would also involve both agencies headquarters staff) one would have to consider it a failure of leadership by everyone involved.
The simple answer should be the agency that takes the lead should be the agency best placed to take the lead in all the circumstances. The issue of who is the ‘incident controller’ is irrelevant.