A correspondent has sent me “A suggested topic for your Emergency Law blog – the State Emergency And Rescue Management Act 1989 (NSW) s 63”. That section says:
Except as expressly provided by this Act, this Act does not limit the operation of any other Act or law.
My correspondent says:
I raise this somewhat rarely-quoted section of the SERM ACT in seeking to understand what is the intent of s63. I Understand that the SERM ACT is ‘an Act relating to the management of State emergencies and rescues’. It is also provides the cement that binds the various parent legislation of emergency management agencies. However is s63 suggesting that the SERM has application in relation to ESOs and government agencies but not if it limits the operation of the parent legislation of those agencies?
S63 does have minor form in this respect. Several years ago, a government agency determined on the basis of a number of matters, that the normal EM hierarchy as established under the SERM Act should not limit the operation of, and the duties imposed by, that particular agency’s parent legislation.
I understand those provisions that are “expressly provided” particularly in relation to a state of emergency. Your view in relation to 63 would be appreciated. I understand that it is something that is rarely needed or applied, however there it remains in the SERM Act.
The explanatory note that was written with the Emergency And Rescue Management Bill 1989 does not give any explanation as to why the section was included. I can’t locate the Hansard for the Bill’s second reading speech so I can’t see if the Minster had anything to say about s 63 when introducing the Bill into parliament.
The Act has to be interpreted based on the words used. Where an Act of Parliament provides for some rule whether that is to allow someone to do something, or impose or restrict liability etc then that law is not limited by the SERM Act. So if an agency has the power to do something or not do something the SERM Act doesn’t affect that power except where the Act expressly provides. I think it’s a fair enough description that ‘the SERM Act [does] not limit the operation of, and the duties imposed by, [a] particular agency’s parent legislation’.
I do note that during a state of emergency (State Emergency and Rescue Management Act 1989 (NSW) s 36):
(1) … the Minister is responsible for controlling and co-ordinating the activities of such government agencies, and the allocation of such available resources of the Government, as the Minister considers necessary or desirable for responding to the emergency.
(2) For that purpose, the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function.
(3) If a direction is given to a government agency under this section:
(a) the government agency must comply with the direction, and
(b) the direction prevails over anything to the contrary in any Act or law, except the Essential Services Act 1988.
Those directions would certainly limit the operations of any Act or other law. I note that this power is not as extensive as the Minister in Victoria. During a state of disaster the Victorian Minister has similar powers to the NSW Minister, above, but in Victoria he or she may also (Emergency Management Act 1986 (Vic) s 24; emphasis added):
if it appears … that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;
But why it was thought important to put s 63 there or what problem it was intended to address, I cannot say.