State Emergency Service Act 1989 (NSW)

State Emergency Service Act 1989 No 164 An Act to establish the State Emergency Service and define its functions; to make provision for the handling of certain emergencies; to repeal the State Emergency Services and Civil Defence Act 1972; to amend certain other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the State Emergency Service Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Commissioner means the person employed in the Public Service as the Commissioner of the State Emergency Service. Consultative Council means the SES Volunteer Joint Consultative Council. Deputy Commissioner means the person employed in the Public Service as the Deputy Commissioner of the State Emergency Service. emergency officer means the Commissioner or a person appointed under section 15 as an emergency officer. exercise a function includes perform a duty. function includes a power, authority or duty. local commander means a commander of SES units in a local government area appointed under section 17. SES unit means an organisation registered as an SES unit under section 18. State Emergency Service means the NSW State Emergency Service established under this Act. unit commander means a commander of an SES unit appointed under section 17A. zone means a zone established under section 14. zone commander means the commander appointed under section 16 for SES units in a zone. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Words and expressions in this Act have the same meanings as in the State Emergency and Rescue Management Act 1989, except in so far as the context or subject-matter otherwise indicates or requires. (3) Notes included in this Act do not form part of this Act. 4 Limitation on operation of Act—industrial disputes and civil disturbances This Act does not authorise the taking of measures directed at— (a) bringing an industrial dispute to an end, or (b) controlling a riot or other civil disturbance. 5 (Repealed) 6 Act binds the Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 The State Emergency Service 7 State Emergency Service (1) There shall be a NSW State Emergency Service. (2) The State Emergency Service is to comprise— (a) the Commissioner, Deputy Commissioner and other staff of the Service, and (b) the volunteer officers and volunteer members of all SES units. (3) In any Act or instrument, a reference to the NSW State Emergency Service need not include the term "NSW". 8 Functions of Service (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, (b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities, (c) to act as the combat agency for dealing with tsunamis and to co-ordinate the evacuation and welfare of affected communities, (d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation, (e) to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board, (f) to assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to, and to assist the State Emergency Recovery Controller to carry out emergency management functions relating to the recovery from, emergencies in accordance with the State Emergency and Rescue Management Act 1989, (g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency, (h) to maintain effective liaison with all emergency services organisations, (i) to carry out such other functions as may be assigned to it by or under this or any other Act, or by the State Emergency Operations Controller or the Minister. (2) The functions of the State Emergency Service are to be exercised in accordance with the State Emergency and Rescue Management Act 1989 and, in particular, with the requirements under the State Emergency Management Plan or any state of emergency under that Act. Part 3 The Commissioner and other staff of the Service 9 Commissioner, Deputy Commissioner and other staff (1) A Commissioner, Deputy Commissioner and such other staff as may be necessary for the purposes of this Act are to be employed under Part 4 of the Government Sector Employment Act 2013. (2) Subsection (1) does not apply to members of SES units. (3) The Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a Public Service agency or a public or local authority. (4) For the purposes of this Act, a person whose services are made use of under this section is a member of the staff of the State Emergency Service. 9A (Repealed) 10 Ministerial control The Commissioner, Deputy Commissioner and other members of the State Emergency Service are, in the exercise of their functions under this Act, subject to the control and direction of the Minister. 11 Commissioner responsible for administration of Service (1) The Commissioner is responsible for managing and controlling the activities of the State Emergency Service. (2) The Commissioner, in connection with the exercise of his or her functions under this Act, may use the title "State controller" and the Deputy Commissioner may use the title "Deputy State controller". 12 Planning and preparation by Commissioner (1) The Commissioner is required to undertake such planning and make such preparations as the Commissioner thinks fit for the purpose of enabling the Commissioner's functions under this Act to be exercised in the most effective manner. (2) The Commissioner may constitute committees to collate and assess information, or give advice or assistance to the Commissioner or any other person or agency, in relation to the functions of the State Emergency Service. (3) The Commissioner is to arrange for the collation, assessment and public dissemination of information relating to floods, storms and tsunamis. 13 Delegation by Commissioner The Commissioner may delegate to the Deputy Commissioner or any other member of the State Emergency Service or to an emergency officer the Commissioner's functions under this Act, other than this power of delegation. 14 Service zones The Commissioner may divide the State into zones for the purposes of this Act. Part 4 Emergency officers and SES units 15 Emergency officers (1) The Commissioner is an emergency officer for the purposes of this Act. (2) The Commissioner may appoint any person, or a person belonging to a class of persons, as an emergency officer for the purposes of this Act. (3) A person may be appointed as an emergency officer whether or not the person is a member of the State Emergency Service. (4) The Commissioner may revoke an appointment under this section at any time. (5) The Commissioner is to arrange for suitable training to be provided to emergency officers. 16 Zone commanders (1) The Commissioner may appoint a member of staff of the State Emergency Service as the zone commander for a zone. (2) A zone commander is, subject to any direction of the Commissioner, responsible for the control and co-ordination of the activities of SES units in the relevant zone. (3) The Commissioner may appoint any person to act as a deputy to a zone commander. (4) The functions of a zone commander may be exercised by his or her deputy during any absence from duty of the zone commander. 17 Local commanders (1) The Commissioner may, on the recommendation of the council of a local government area, appoint one or more persons as a local commander for the area. (2) The Commissioner may revoke an appointment under this section at any time and for any reason. (3) A local commander is, subject to any direction of the Commissioner or the relevant zone commander, responsible for the control and co-ordination of the activities of SES units in the relevant local government area. (4) The Commissioner may appoint as a local commander an emergency officer not recommended by the council of the local government area concerned if the council fails to make a recommendation which is acceptable to the Commissioner within 30 days after the council is requested to do so by the Commissioner. (5) The council of a local government area must, within 3 months of the appointment of a local commander for the area, provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions. (6) Any such facilities and accommodation are to be of a standard approved by the Commissioner. 17A Unit commanders (1) The Commissioner may appoint any person as the unit commander for an SES unit and may revoke the appointment at any time and for any reason. (2) A unit commander is, subject to any direction of the Commissioner, the relevant zone commander or the relevant local commander, responsible for the control and co-ordination of the activities of the unit. (3) In the case of a local government area for which there is only one SES unit, the unit commander for that unit is taken to be the local commander unless a local commander is appointed under section 17 (1). 17B Terms of appointment for local and unit commanders (1) A local commander or unit commander is to be appointed for such term (not exceeding 2 years) as is specified in his or her instrument of appointment, but is, at the end of that term, eligible for re-appointment. (2) Each local commander and unit commander is subject to an annual review and report to be carried out by the Commissioner. 17C Local and unit commander deputies (1) A zone commander may, in consultation with a local commander in the relevant zone, appoint any person to act as a deputy to the local commander. (2) A zone commander may, in consultation with a unit commander in the relevant zone, appoint any person to act as a deputy to the unit commander. (3) An appointment made under subsection (1) or (2) may be revoked at any time and for any reason by the zone commander who made the appointment. (4) The functions of a local commander or unit commander may be exercised by his or her deputy during any absence from duty of the local commander or unit commander. 17D Zone headquarters unit (1) The State Emergency Service may make available such of its staff and facilities as the Commissioner considers appropriate to establish a headquarters for a zone. (2) A zone commander, together with— (a) the members of staff of the State Emergency Service attached to the headquarters for the zone, and (b) any volunteers assisting in the running of the headquarters, may be registered as an SES unit (as a zone headquarters unit) under section 18. (3) The function of a zone headquarters unit is to assist the zone commander in the exercise of his or her responsibilities. 18 SES units (1) The Commissioner may, by instrument in writing, register a group of persons as an SES unit and assign it a distinctive name. (1A) The Commissioner may register a group of persons under subsection (1) on his or her own initiative or on the application of an association of persons formed for the purpose of dealing with emergencies to which this Act applies. (1B) On the registration of an SES unit under subsection (1A), the group of persons or the members of the association are members of the SES unit, subject to section 18AA. (2) An association of persons may be registered as an SES unit whether or not it is an incorporated body. (3) The Commissioner may, by instrument in writing, revoke the registration of an association as an SES unit. (4) The Commissioner may apply for the accreditation of an SES unit as a rescue unit under Part 3 of the State Emergency and Rescue Management Act 1989. (5) The trustees of any real or personal property of an SES unit may vest that property in the Crown, to be held by the Crown subject to this Act but free from any other trust. 18AA Granting, suspension and withdrawal of membership of SES units (1) Membership of an SES unit may be granted, suspended or withdrawn by any of the following— (a) the Commissioner, (b) a zone commander, local commander or unit commander responsible for the SES unit. (2) Membership of an SES unit may be withdrawn at any time and for any reason. (3) Membership of an SES unit may be suspended at any time, but only for the purposes of conducting an investigation into— (a) the member's alleged offence against any law, or (b) the member's alleged contravention of, or failure to comply with, the procedures or instructions of the State Emergency Service. (4) A person whose membership of an SES unit is withdrawn may— (a) if the membership was withdrawn by the Commissioner—apply to the Commissioner to reconsider that action, or (b) if the membership was withdrawn by a zone commander, local commander or unit commander—appeal to the Commissioner against that action. (5) On an application or an appeal being made by a person under subsection (4), the Commissioner may— (a) reinstate the person's membership, or (b) confirm the withdrawal of the person's membership. (6) The procedures for— (a) suspending or withdrawing membership of an SES unit, and (b) appealing against the withdrawal of membership of an SES unit, are to be as set out in the procedure manuals maintained by the State Emergency Service. (7) This section has effect despite any other law relating to membership of an association that is an SES unit. Part 5 Emergencies and emergency powers 18A Definitions In this Part— emergency area means the area affected by an emergency to which this Part applies. premises includes land, place, building, vehicle, vessel or aircraft, or any part of premises. senior emergency officer means any of the following— (a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station, (b) an officer of Fire and Rescue NSW of or above the position of station commander, (c) an officer of the State Emergency Service of or above the position of unit commander, (d) a member of a rural fire brigade of or above the position of deputy captain, (e) a Regional Emergency Management Officer. 19 Emergencies to which Part applies This Part applies to— (a) an emergency referred to in section 8 (1) (a), (b) or (c) relating to a flood, storm or tsunami, or (b) an emergency referred to in section 8 (1) (d) which the State Emergency Operations Controller has directed the Commissioner to deal with. 20 Commissioner to control emergencies Subject to the State Emergency and Rescue Management Act 1989, the Commissioner is to have overall control of operations in response to an emergency to which this Part applies. 21 Duty to recognise authority of Commissioner and emergency officers (1) Every member of the NSW Police Force and all other members of emergency services organisations are to recognise, in connection with operations in response to an emergency to which this Part applies, the authority of the Commissioner and emergency officers acting under the Commissioner's orders or the orders of the zone commander or local commander. (2) It is the duty of every such member to assist the Commissioner or other emergency officer in connection with those operations. 22 Power to evacuate or to take other steps concerning persons (1) The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following— (a) to leave any particular premises and to move out of an emergency area or any part of an emergency 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 emergency area or any part of the emergency area, (c) not to enter the emergency area or any part of the emergency area. (2) If the person does not comply with the direction, an emergency officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances. (3) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised. (4) (Repealed) 22A Power to take other safety measures (1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following— (a) 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 an emergency area or any part of an emergency area, (b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area, (c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency. (2) For the purposes of the exercise of a function under subsection (1) (a), the Commissioner or a senior emergency officer authorised by the Commissioner may require the person who controls or supplies the substance concerned to immediately send some competent person to the scene for the purpose of shutting it off or disconnecting it in accordance with the reasonable directions of the Commissioner or senior emergency officer. (3) A person must comply with a requirement, or directions, under subsection (2). Maximum penalty—50 penalty units. (4) A person who supplies a substance referred to in subsection (1) (a) or (b) is not liable for any damages because of any interruption of that supply under this section if the supply is shut off or disconnected in accordance with the directions of the Commissioner or senior emergency officer. (5) The regulations may limit the circumstances, and regulate the manner, in which the powers conferred by this section may be exercised. 22B Power to enter premises A person may enter any premises for the purposes of complying with a direction under section 22A (1). 22C Notice of entry (1) A person authorised to enter premises may enter the premises without giving notice— (a) if entry to the premises is made with the consent of the owner or occupier, or (b) if the entry is made to a part of the premises that is open to the public, or (c) if entry is required urgently and the case is one in which the Commissioner or senior emergency officer giving the direction has authorised in writing (either generally or in a particular case) entry without notice. (2) In any other case, the person must give the owner or occupier of the premises reasonable written notice of the intention to enter the premises. 22D Care to be taken In the exercise of a function under section 22A, a person authorised to enter premises must do as little damage as possible. 22E Use of force (1) Reasonable force may be used for the purpose of gaining entry to premises to comply with a direction under section 22A but only if the Commissioner or the senior emergency officer giving the direction— (a) has authorised in writing the use of force in the particular case, or (b) has specified in writing the circumstances that are required to exist before force may be used and the particular case falls within those circumstances. (2) If a person authorised to enter premises uses force to do so, the person must, as soon as practicable, inform the person who directed him or her to exercise the function under section 22A. (3) The person so informed of the use of force must give notice of the use of force to such persons or authorities as appear to the person to be appropriate in the circumstances. (4) If a person's property is damaged by the exercise of a right of entry, the person is to receive such compensation as may be determined by the Minister or, if the damage arose as the result of the exercise of a right of entry by a police officer, the Minister for Police, but is not entitled to receive compensation. (5) A person may apply to the Premier for a review of a determination as to compensation made by the Minister or the Minister for Police under this section. 22F Authority to enter premises (1) A power to enter premises, or to take action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the owner or occupier of the premises. (2) The authority must be a written authority that— (a) states that it is issued under this Act, and (b) gives the name of the person to whom it is issued, and (c) describes the nature of the powers conferred and the source of the powers, and (d) states the date (if any) on which it expires, and (e) describes the kind of premises to which the power extends, and (f) bears the signature of the Commissioner or the senior emergency officer who issued the direction under section 22A. (3) However, despite subsections (1) and (2), a police officer exercising a power to enter premises, or to take action on premises, must produce his or her warrant card if required to do so by the owner or occupier of the premises in lieu of an authority. 23 Arrangements for inter-State co-operation in emergencies (1) The Commissioner may make arrangements with any agency which manages or controls inter-State SES units— (a) for those units to carry out operations in New South Wales in response to emergencies to which this Part applies, and (b) for SES units under this Act to carry out similar operations outside New South Wales. (2) An inter-State SES unit carrying out operations in New South Wales in accordance with any such arrangement is to be regarded as an SES unit under this Act. (2A) The Commissioner may make arrangements with an appropriate agency of a State or Territory that does not operate or manage an inter-State SES unit for SES units under this Act to carry out operations in that State or Territory in response to emergencies to which this Part applies. (3) In this section, inter-State SES unit means a unit established and operating in another State or in a Territory of the Commonwealth. 24 (Repealed) Part 5A Contribution to State Emergency Service costs Division 1 Preliminary 24A Definitions In this Part— assessment notice means an assessment notice given to a local council under section 24K. financial year means the period of 12 months starting on 1 July in a year. Fund means the New South Wales State Emergency Service Fund established under section 24V (1). SES contribution means an amount payable under this Part for a financial year by a local council. SES contribution instalment—see section 24IA. SES expenditure, in relation to a financial year, means the total of— (a) expenditure incurred during the year in the exercise of the State Emergency Service's functions, and (b) (Repealed) (c) expenditure incurred during the year in respect of the administrative costs of the State Emergency Service, the Consultative Council or the Minister under the authority of this Act. SES funding amount—see section 24G. SES funding target—see section 24B. State Revenue Commissioner—means the Chief Commissioner of State Revenue under the Taxation Administration Act 1996. Division 2 SES funding target 24B SES funding target (1) Before 31 March in each year or a later date agreed to by the Treasurer, the Minister must— (a) prepare and, subject to the Treasurer's agreement, adopt a funding target for the State Emergency Service for the next financial year (the SES funding target), and (b) prepare and adopt an estimate of the amount of the SES funding target applicable to the area of each local council for the next financial year. (2) The Minister is to calculate the SES funding target for the financial year using the following formula— where— FTt is the SES funding target for the financial year (represented by "t"). EEt is the estimated SES expenditure for the financial year. AEt-2 is the actual SES expenditure for the financial year that commenced 2 years before the period "t" (represented as "t-2"). EEt-2 is the estimated SES expenditure for the financial year that commenced 2 years before the period "t" (represented as "t-2"). (3) To avoid doubt, if AEt-2−EEt-2 is a negative amount, that amount is subtracted from EEt. (4) The estimate of SES expenditure for a financial year is to be reduced, as necessary, by the amount it is estimated will be paid to the Fund for the financial year (other than from contributions made by the Treasurer). (5) The actual SES expenditure for a financial year is to be reduced, as necessary, by the amount paid to the Fund for the financial year (other than from contributions made by the Treasurer). (6) Without limiting subsections (4) and (5), the Minister may, with the Treasurer's agreement, decide that adjustments are not to be made to the SES funding target in respect of— (a) certain money paid into the Fund, or (b) certain amounts it is estimated will be paid to the State Emergency Service for the financial year. (7) In determining the amount of the SES funding target for each local council area, the Minister may apportion the total estimated expenditure between local council areas in the way the Minister thinks fit. 24C Local councils to give information to Commissioner To enable the Minister to prepare the SES funding target, a local council must, at the times and in the way required by the Commissioner, give the Commissioner any of the following information required by the Commissioner— (a) information relating to the State Emergency Service, SES units or emergency officers, (b) information relating to the equipment of the State Emergency Service, (c) information about any other matter relating to the organisation of the State Emergency Service. 24D Commissioner to assist (1) To assist the Minister in preparing and adopting the SES funding target for a financial year, the Commissioner must prepare and give to the Minister a written report and recommendations about SES expenditure for the year. (2) The Minister must consider the Commissioner's report and recommendations in preparing the estimates. Division 3 Treasurer to contribute to Fund 24E Treasurer to pay contributions (1) The Treasurer is to pay an annual contribution to the Fund for each financial year. (2) The annual contribution payable is the SES funding amount. (3) The Treasurer may direct the payment of additional contributions to the Fund, subject to any terms and conditions approved by the Treasurer. (4) The annual contribution, and any additional contributions, are to be paid out of money provided by Parliament. 24F Contribution payable in instalments The annual contribution is to be paid by the Treasurer in instalments on or before the following dates— (a) 1 August, (b) 1 October, (c) 1 January, (d) 1 April. 24G SES funding amount (1) As soon as practicable after the commencement of each financial year, the Minister must prepare and, subject to the Treasurer's agreement, adopt an update of SES funding for the financial year (the SES funding amount). (2) The SES funding amount is the estimated SES expenditure for the financial year (that is, EEt in the SES funding target for the financial year), adjusted and updated in accordance with this section. (3) Estimated SES expenditure is to be adjusted for the purposes of the SES funding amount so that the estimate— (a) is reduced or increased, as appropriate, for any difference between the estimate of SES expenditure for the financial year, as adopted in the SES funding target, and an updated estimate of that amount, and (b) is reduced or increased, as appropriate, for any difference between the SES funding amount for the previous financial year and the actual amount of SES expenditure for that financial year. (4) Without limiting subsection (3), the Minister may, with the Treasurer's agreement, decide that adjustments are not to be made to the SES funding amount in respect of— (a) any surplus in the Fund at the end of the previous financial year, or (b) certain money paid into the Fund, or (c) certain amounts it is estimated will be paid to the State Emergency Service for the financial year. (5) An adjustment to the estimated SES expenditure that is made under this section has no effect on, and is not to be used in the calculation of, the SES funding target for a financial year. Division 4 Local councils to pay SES contribution 24H Council to pay SES contribution A local council is to pay to the State Revenue Commissioner a SES contribution for each financial year. 24I Amount of contribution (1) The amount of the SES contribution is the amount determined by the Minister for each local council. (2) The Minister is to determine the contribution payable by a local council on the basis of the SES funding target for each local council area. (3) The contribution payable by local councils for each local council area is 11.7% of the SES funding target applicable to the area. (4) A local council or an officer of a local council must, if asked by the Minister, give the Minister any document or information required by the Minister to determine the local council's SES contribution. 24IA Contribution payable in instalments A SES contribution payable by a local council for a financial year is payable in 4 instalments (each of which is a SES contribution instalment). 24IB Minister to advise State Revenue Commissioner The Minister is to advise the State Revenue Commissioner, by the date of 15 April that occurs immediately before the commencement of a financial year, of— (a) the amount of the SES contribution payable by each local council for the financial year, and (b) the amount of the SES cont