Today’s correspondent raises the question of actions taken by independent officers at a fire. My correspondent says:

Most people these days who die in bushfires, die in their cars evacuating too late. If a police officer who believes he is doing the right thing – but who is not a firefighter forces people to evacuate and those people die in the evacuation and the house that was being evacuated was easily defended, then what are the consequences?

This debate has been going on for years and the NSW RFS policy reflected that. Examples in the blue mountains where police officers evacuated people with nowhere for them to go – roads became blocked – and it marred fire trucks trying to get to the fires with all these people clogging the roads – go early or stay and defend. It was a clear statement that if you prepared you could put out spot fires and save a home. That’s not to say that a 20m high firestorm is survivable – but what is the situation if someone mandatory evacuates in panic without the facts or the experience of a fire official.

There is no simple answer to the question ‘what are the consequences’ (assuming we’re talking about legal consequences).  It all depends on the facts.

According to AIIMS (the Australasian Interagency Incident Management System) there is to be only one incident controller.  According to the AFAC AIIMS-4 Aide Memoire IOS App (2013) the Incident Controller is to:

  • Take charge and exercise leadership…; and
  • Set objectives for the response to the incident considering the safety of communities as a priority.

(I know it’s not the current version of AIIMS but it is the current App and I’m not in my office so can’t put my hands on the latest edition of AIIMS).

Under the State Emergency and Rescue Management Act 1989 (NSW) there is to a combat agency assigned for most risks (s 12(3)).   The Act (s 3) defines the combat agency as:

… the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency.

Control means “the overall direction of the activities, agencies or individuals concerned.”

The State Emergency Management Plan (Annexure 3) says that the Rural Fire Service has control responsibilities for fires within a rural fire district.

What follows is that it is the Rural Fires Service that will appoint the incident controller and it is the incident controller on behalf of the RFS who sets the objectives for the response and gives the overall direction to those involved in the response, and that can include the police (Rural Fires Act 1987 (NSW) ss 41 and 45).

But that doesn’t mean police cannot act independently.  In particular police have an independent authority to order an evacuation.  Section 60L(1) of the State Emergency and Rescue Management Act 1989 (NSW) says:

A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, a person to do any or all of the following:

(a) to leave any particular premises and to move outside the danger area,

(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the danger area,

(c) not to enter the danger area.

See also s 61 which says:

A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, the doing of any one or more of the following:

(a) the closure to traffic of any street, road, lane, thoroughfare or footpath or place open to or used by the public, in the danger area or any part of the danger area,

(a1) the removal of vehicles in the danger area or any part of the danger area,

(b) the closure of any other public or private place in the danger area or any part of the danger area,

(c) the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in the danger area or any part of the danger area,

(d) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in the danger area or any part of the danger area,

(e) the shutting off or disconnecting of the supply of gas or electricity to any premises in the danger area or any part of the danger area,

(f) the taking possession of, and removal or destruction of any material or thing in the danger area or any part of the danger area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency,

(g) the protection or isolation of any material or thing in the danger area by preventing a person from removing or otherwise interfering with the material or thing.

There is nothing in the Act that says the police officer making these decisions has to liaise with the combat agency or the incident controller.

It of course makes sense that people at the fire front have to make decisions. The Incident Controller may set the objectives and the ‘overall direction’ of the response but those on the fire ground have to make a call.  Whether it’s a brigade captain who has to decide the tactics to respond to a changing situation or a police officer who also has to deal with whatever reality they are currently facing.  To require them to ‘check back’ with the IC or someone else is likely to lead to delay and equally to catastrophic risk.

It is well documented that during the Black Saturday fires of 2009, Victorian police officers led a community to safety. The 2009 Victorian Bushfires Royal Commission (Final Report, Volume I, Chapter 10, p. 155) said:

Senior Constables Kenneth Dwight, Peter Collyer and Ian Hamill made the decision that evacuating the people gathered at the Gallipoli Park oval would be safer than allowing the people to stay there. They were confident that evacuation was possible because they had recently driven down the Buxton–Marysville road and it had been passable.

Senior Constables Dwight, Collyer and Hamill, along with Senior Constable Andrew Walker, who directed the people on the oval to drive in convoy to Alexandra, had to make snap judgments using very limited information. They exercised initiative and sound judgment. Although acknowledging that this approach went against prevailing policy and that the evacuation was risky because the Buxton–Marysville road could have become blocked, the Commission commends the officers for their bravery and decisiveness. They made a controversial decision, but they made it with the safety of the public foremost in their minds and successfully delivered those involved to a safer place.

Volunteers in two VICSES vehicles drove along the streets of Marysville trying to warn any residents remaining in the town. They used the vehicles’ public address system, calling out ‘SES Rescue, all vehicles evacuating Marysville are to head to Alexandra only’. When they reached the corner of Falls Road and Mount Kitchener Avenue, embers started coming in through the vehicles’ windows, and they decided it was too dangerous to stay. They went to the rear of the convoy, waiting as cars joined and advising people to keep going to Alexandra.

As the convoy drove north along the Buxton–Marysville road the smoke cleared. The police and the VICSES personnel were able to warn many residents along that road and in Buxton of the approaching fire by going from door to door.

The Commission commends the police and the VICSES volunteers involved in evacuating Marysville and Buxton for their courage and presence of mind.

In that situation the decision worked, and the police involved were rightly considered heroes.  It would have been a very different situation if all those involved had been led to their death.

One can imagine that in the next big fire there will again be post event reviews and if it is found that a police officer ordered an evacuation that in fact put people at greater risk then no doubt that will be considered along with questions about the situation as the officer perceived it and why the decision he or she made seemed like the best decision at the time.  We would hope that if there are lessons to be learned they are learned without sacrificing the officer on the altar of hindsight.

Whether an officer has access to all the facts or the wisdom of a fire officer will depend on the fire.  Does the communication work? Is there are fire officer there or is the officer the only emergency service official there?  What does he or she know? What do the locals know?  There are too many impossible variables to answer the question ‘what are the consequences?’

What we can say is that a police officer will not be personally liable for the outcome of his or her decision, they will not be criminally responsible and if there is death or injury then the state may be liable (as they are vicariously liable for the actions of police – Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B).  There is no way in the absence of particular facts one could make any prediction on whether such a claim would succeed.

Conclusion

One might infer that my correspondent is looking for some way to hold a police officer responsible for the potential damage caused by an evacuation that is ordered by police rather than the fire incident controller.  I’m not sure if that is indeed what is desired, but I can say with great confidence that it is not going to happen.

During an emergency, decisions have to be made and police and others are given that authority.  We entrust the police, and the fire and emergency services, to make those decisions in good faith and with the best information that they have but it has to be recognised that in a major event, information and communication may be very restricted.  An officer has to make the best call he or she can.  There may be questions later as to why that appeared to be the best call and if there were unintended, unexpected or adverse outcomes there may be opportunities to learn.  But there will be no legal consequences for the officer who acts in good faith and in accordance with his or her duty.

If there are issues of liability they will fall to the state as it is the state that operates the fire brigades and the police.