It’s being reported that the Premier has declared a State of Emergency in response to the current NSW fires (see ‘NSW bushfires: State of emergency declared ahead of worsening conditions’ ABC Online). The State Emergency and Rescue Management Act 1989 (NSW) provides that the Premier may declare a State of Emergency when he or she “is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales” (s 33). The exercise of powers during the emergency may be subject to regulations but it does appear that no regulations have been made, so the Act sets out all the relevant powers and limitation.

When making a declaration the Premier may declare that the emergency exists across the state, or only parts of the state (s 33) and may declare the period (not more than 30 days) that the declaration remains in force (s 35). The Declaration is to be placed, as soon as possible, in the NSW Government Gazette or online at the NSW Legislation website (http://www.legislation.nsw.gov.au/) (s 34). The declaration does not yet appear to have been placed online but when it is we’ll be able to see what is the defined emergency area that is subject to the declaration.

The news is reporting that one feature of a state of emergency is the power to require people to evacuate. That is indeed the case, the Minister for Police and Emergency Services may authorise an emergency services officer to require any person to move out of an emergency area, to require people to take children and others that are in their care out of an emergency area and to require people not to enter the emergency area. An emergency services officer may do anything that is ‘reasonably necessary’, including using force, to ensure compliance with their order (s 37). (An ‘emergency services officer’ means a police officer, an officer from NSW Fire and Rescue of or above the position of station commander, an officer from the State Emergency Service of or above the position of unit controller, a member of a rural fire brigade of or above the position of deputy captain, a Regional Emergency Management Officer and a member of the Ambulance Service of NSW of or above the rank of station officer; s 32A).

The Minister may also authorise an emergency services officer to

(a) close to any street, road, lane, thoroughfare or footpath or place open to or used by the public that is in, or is partly in, the emergency area;
(b) close of any other public or private place that is in, or is partly in, the emergency area;
(c) pull down, destroy or shore up of any wall or premises that has been damaged or rendered insecure and that is in, or is partly in, the emergency area;
(d) shut off or disconnect the supply of water, gas, liquid and any other solid, grain, powder or other substance from any main, pipeline, container or storage facility that is in, or is partly in, the emergency area;
(e) shut off or disconnect the supply of gas or electricity to any premises that is in, or is partly in, the emergency area;
(f) take possession of, and remove or destroy any material or thing that is in, or is partly in, the emergency area and that may be dangerous to life or property or which may interfere with the response of emergency services (s 37A).

Failure to comply with a direction from an authorised emergency services officer is an offence, punishable by a fine of up to $5500 (s 37A(4) and Crimes (Sentencing and Procedure) Act 1999 (NSW) s 17).

A person may enter into premises to comply with an order under s 37A. That power is not limited to emergency services officers, but to anyone, so if for example the emergency services officer requires that the electricity to premises is to be disconnected, the electrician may enter the premises to disconnect the power (s 37C; see also s 37A(3)). Entry to premises may be made with the consent of the occupier (in which case statutory authority is not really required); to the public part of the premises, or if the Minister or emergency services officer is satisfied that entry is required urgently and has authorised entry without notice to the occupier. In any other case, the occupier must be given written notice of the need to enter the premises (s 37C). Force to gain entry may only be used if the Minister has authorised the use of force. A person seeking to enter premises using these powers must produce their written authority, or if they are a police officer, their warrant card, if requested by the occupier (s 37F).

These powers may be very important in an emergency but similar powers exist even without the declaration of a State of Emergency. An officer of the Rural Fire Service may also cause or require people and things to be removed from the fire ground (Rural Fires Act 1997 (NSW) s 22A); may enter premises (s 23) close streets and public thoroughfares (s 24); pull down, shore up buildings, fences and other things in order to make premises safe (s 25).

The effect of the State of Emergency is however to extend the people who can exercise emergency powers (so officers from all the emergency services, not just the RFS can exercise emergency powers during the bushfire emergency) and the area over which they can be exercised is extended. The Rural Fires Act refers to exercising powers near a fire. It can be seen in the current emergency why it may be desirable to exercise these powers in anticipation of an approaching fire rather than ‘near’ the fire.

There are other powers and consequences that come with a State of Emergency. First, the Minister for Police and Emergency Services is now responsible for controlling and co-ordinating the activities all government agencies, and the allocation of Government resources. He may direct any government agency to do or not do anything or exercise their powers (State Emergency and Rescue Management Act 1989 (NSW) s 36). The significance of this is that government agencies are usually accountable to their own Minister and a Minister in charge of one agency cannot direct an agency that is in another Minister’s portfolio. This section allows a unified government response with one Minister now in charge of all the governments response to the emergency.

Another power that is not normally available to the emergency services is the power to commandeer private property. Where that private property is taken there is no ‘right’ to compensation but an owner may apply to the Minister for compensation for any damage sustained. The only appeal from the Minister’s decision is to appeal to the Premier (s 38).

It is an offence to obstruct or hinder the Minister or any person acting with the authority of the Minister or exercising a function related to the State of Emergency. The maximum penalty is a fine of $5500 or 2 years imprisonment, or both (s 40 and Crimes (Sentencing and Procedure) Act 1999 (NSW) s 17).

All emergency services legislation provides that volunteers and others are not liable for acts done in good faith in the performance of one’s duties. During a State of Emergency that is even stronger, it is not just that there is a defence (see State Emergency and Rescue Management Act 1989 (NSW) s 62; Rural Fires Act 1997 (NSW) s 128). Now “A person may not bring proceedings against the Crown, a Minister or any body or person acting in the execution of this Division for any damage, loss, death or injury sustained because of anything done or omitted to be done in good faith under this Division during a state of emergency” (s 41).

If one cannot bring proceedings then it would be arguable that any statement of claim arising form actions during the State of Emergency would be struck out unless the plaintiff entered a plea that thing done, or omitted, was not done, or was omitted, in ‘bad faith’. There is a general rule that ‘he who asserts must prove’ in which case the plaintiff would have the obligation to prove bad faith, rather than the defendant having to establish ‘good faith’.

Whether or not the emergency powers are required, declaring a State of Emergency has other effects which were identified by the 2009 Victorian Bushfires Royal Commission and the Hyde inquiry into the 2013 Tasmanian fires. During both the 2009 and 2013 fires, a State of Emergency or disaster was not declared. In the 2013 Tasmanian Bushfires Inquiry former South Australian Police Commissioner Malcolm Hyde said (at pp 72-73):

Access to emergency powers is just one reason for declaring an emergency event. The Victorian Bushfires Royal Commission said:

the Commission considers that declaring a state of disaster would offer benefits beyond the grant of additional powers. First, it would provide symbolic recognition of the gravity of a situation – a recognition that on 7 February might have sharpened the focus of emergency services agencies on community safety factors such as warnings.
Second, it would place the State’s political leaders firmly in charge of the emergency, reassuring the public that their government had the situation in hand and facilitating rapid mobilisation of Cabinet and high-level government attention if required.


It is also the Inquiry’s experience that declarations of emergency serve a number of purposes, which includes conveying a clear message to those responding and dealing with the emergency and the community affected by the emergency and the community generally.

It may be that the NSW Government has learned those lessons and is making this declaration to bring to the broader public’s attention that this is an incident of state, not just local significance.

Related to these disasters, the State has also moved to protect volunteer employment by making a declaration under the State Emergency and Rescue Management Act 1989 (NSW) s 60B (see ‘NSW Government acts to protect volunteer firefighters‘, 18 October 2013; the actual order can be found here: ‘Order regarding volunteers taking part in emergency operations‘). Whilst this declaration remains in force ‘An employer must not victimise an employee … for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation…’ (for more details on the effect of this order, see an earlier post on this blog ‘Employment protection for NSW volunteers’ 8 March 2012 and ‘Volunteer Protection for NSW Emergency Service Workers’ 9 January 2013).

Michael Eburn.
20 October

PS: The Order declaring a State of Emergency is now available online – see Order declaring state of emergency in respect of bush fires. The order covers the whole of the State and is in force for 30 days unless revoked.

Michael Eburn
21 October.