1. Southern Highlands Region Controllers Professional Development Workshop 18 November 2017
Dr Michael Eburn Associate Professor
School of Legal Practice
ANU College of Law.

2. Road closures

3. The functions of the SES include…
(aa) … protect persons from dangers … and to protect property … from floods, storms and tsunamis,
to act as the combat agency for dealing with floods …
to act as the combat agency for damage control for storms… (State Emergency Service Act 1989 (NSW) s 8).

4. State Emergency And Rescue Management Act 1989 (NSW) s 3
"combat agency" means the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency. 

5. State Emergency And Rescue Management Act 1989 (NSW) s 3
"combat agency" means 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. 

6. The Dungog Inquiry

7. … the significant flood effects which occurred on the morning of 21 April 2015, all occurred, effectively without warning, in the period between about 6:16am and about 7.00 am that morning.
In the circumstances, on all of the evidence, there is no basis to conclude that either [the local/unit controller or deputy local/unit controller] should have given an evacuation warning or issued an evacuation order any time before about 6.16am on 21 April 2015.

8. Body recovery

9. State Rescue Policy (3rd Ed, v 3.5, 13 February 2015)
“The NSW Police Force are responsible for body recovery and body recovery tasks, vide the Coroners Act With the exception of Police Rescue Squads and Police Operations Support Units, accredited rescue units are only to be employed in a body recovery task at the direction of Police.”

10. State Rescue Policy (3rd Ed, v 3.5, 13 February 2015)
“The NSW Police Force are responsible for body recovery and body recovery tasks, vide the Coroners Act With the exception of Police Rescue Squads and Police Operations Support Units, accredited rescue units are only to be employed in a body recovery task at the direction of Police.”

11. NOT
“The NSW Police Force are responsible for body recovery and body recovery tasks, vide the Coroners Act With the exception of Police Rescue Squads and Police Operations Support Units, only accredited rescue units are to be employed in a body recovery task at the direction of Police.”

12. State Rescue Policy (3rd Ed, v 3.5, 13 February 2015)
“The NSW Police Force are responsible for body recovery and body recovery tasks, vide the Coroners Act With the exception of Police Rescue Squads and Police Operations Support Units, accredited rescue units are only to be employed in a body recovery task at the direction of Police.”

13. The Coroners Act 2009 (NSW)
With respect to a reportable death police may exercise coronial investigation scene powers, which include ‘take possession of the remains of a deceased person on behalf of the coroner, including body tissue, clothing and items apparently in the possession of the deceased person’ (s 43(1)(p))

14. Summary
Body recovery is not a rescue. Possession of the body pending final determination of the Coroner rests with the police.  It is therefore up to the police to determine how, and by whom, the body will be recovered. 

15. First aid at community events

16. Is it illegal?
A person must not: (a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or (b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter … (Health Services Act 1997 (NSW) s 67E).

17. First aid at community events
Is not a function of the SES (see SES Act s 8).
Can you do a proper risk assessment?
Do you have the skills?
There’s more to running a first aid service than just knowing First Aid (see Safe and Healthy Mass Gatherings, Australian Emergency Manuals Series, Manual 2, AIDR 1999).

18. Spontaneous volunteers and crimchecks

19. Do I see any legal implications?
No.
Spontaneous volunteers enjoy liability protection (SES Act s 25, definition of ‘casual volunteer’).
Can receive workers compensation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)).

20. Driving under ‘response’ conditions

21. Compare the pair

22.  Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274

25. Wells v R [2017] NSWCA 242 (13 October 2017).

26. The outcomes Logar v Ambulance Service – no liability.
Wells v R - 12 months imprisonment to be served by way of Intensive Correction Order (ie not actually in prison), a fine of $1000 and 12 months disqualification from driving.

27. Why?

28. Logar v ASNSW - Emmett J (at [29]):
… I consider that, having regard to the medical emergency to which Ms Riches was responding, her actions in proceeding slowly through the intersection against the red light, with her siren sounding and her lights flashing, having already stopped twice, justified her action in proceeding into the kerb side lane…

29. Wells v R
Counsel for the appellant argued that it was an error for the trial judge to hold that an ‘emergency must have some aspect of urgency to it’. Even though Mr Wells was returning to a scene to collect the crew, it was still relevantly an emergency. 

30. On appeal
Button J said (at [132]): "… I do not accept that “an emergency” can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities…”

31. What’s urgent? A fire? A cardiac arrest? A tree on a roof?
A leaking roof?
A rescue
Road crash? Flood?
Child with a thumb in a drain?
Cat up a tree? Horse in a dam?

32. Remember Macfarlan J’s advice (Logar v ASNSW @ [3]-[5]):
“A patient’s interest in being collected by an ambulance is hardly likely to be advanced by putting the ambulance at risk of a calamitous collision in an attempt to arrive at the collection point a few moments earlier.”

33. What else?

34. Thank you for your attention
Dr Michael Eburn ANU College of Law P: E: Blog: