The NSW Premier has declared a state of emergency for the next seven days whilst in Queensland a state of fire emergency has been declared (and you can read the actual Queensland declaration here).
New South Wales
In New South Wales, a state of emergency may be declared when the ‘Premier is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales’ (State Emergency and Rescue Management Act 1989 (NSW) (SERM Act) s 33). A declaration can be in force for up to 30 days (s 35(2)) but as noted, this declaration is to last for seven days but it can be followed by further declarations if required (s 35(3)).
The declaration gives various powers to the Minister, but it appears that the Minister has delegated his powers to the Commissioner of the Rural Fire Service.
With the declaration the Minister (s 36):
(1)… 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.
That effectively allows the Minister (or in this case, the Commissioner) to exercise supreme executive authority over the agencies of the NSW government.
The declaration gives the Minister the power (s 37(1)) to
… direct, or authorise an emergency services 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.
An emergency services officer is (s 32A):
(a) a police officer,
(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,
(f) a member of the Ambulance Service of NSW of or above the rank of station officer.
An authorised emergency services officer may use ‘reasonably necessary’ force to ensure compliance (s 37(2)) in effect providing for enforced evacuations, noting that agencies are unlikely to use force given the resources that would take (see Legality of forced evacuations during NSW Bushfires (January 10, 2014)).
The Minister may also (s 37A):
… direct, or authorise an emergency services 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 an emergency area or any part of an emergency area,
(b) the closure of any other public or private place in an emergency area or any part of an emergency area,
(c) the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in an emergency area or any part of an emergency 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 an emergency area or any part of an emergency area,
(e) 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,
(f) 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.
Those powers are not so different from those that can be exercised by an officer in charge at a fire or other emergency (see for example, Rural Fires Act 1997 (NSW) ss 22-26) but under that Act these sorts of decisions can only be made in response to an actual fire or ‘imminent danger’. With the state of emergency declaration these actions can be taken pre-emptively, ie before there is a fire or before a fire impacts an area and without having to quibble about what constitutes ‘imminent’ danger.
The unique power, not normally available to fire and emergency services, is the power to commandeer private assets. With this declaration (s 38(1)) ‘… the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property’. The Minister may determine the amount (if any) compensation to be paid to the owner of any property used but there is no ‘entitlement’ to compensation (s 38(2)). A person dissatisfied with the Minister’s determination as to compensation may apply to the Premier (not a court) for a review of the Minister’s decision.
It is an offence to ‘obstruct or hinder the Minister, or any other person acting with the authority of the Minister’ (s 40).
Finally s 41 says:
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.
That wording is stronger than other provisions. For example, the Rural Fires Act 1997 (NSW) s 128 says:
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
That establishes a defence but does not prohibit the plaintiff from commencing a legal action, which is what s 41 of the SERM Act purports to do. Of course, if a plaintiff were to allege that some loss was caused due to action or inaction that was not done ‘in the execution of this Division’ or ‘in good faith’ then the bar would not apply. If a legal action was framed in those terms it would have to proceed to allow the court to determine if the allegation is made out, but if it is not the action would be dismissed.
A state of fire emergency is made under the Fire and Emergency Services Act 1990 (Qld), not the Disaster Management Act 2003 (Qld). The declaration of a state of fire emergency is made by the Commissioner, with the approval of the Minister (s 87). The declaration stands for the period set out in the declaration or if there is no defined period, until it is revoked (s 89). The current declaration does not have a time period so it remains in force until revoked.
With this declaration, all existing authorities to light fires cease to have effect during the period of the fire emergency (s 90).
‘While a state of fire emergency remains in force, the commissioner may take any reasonable measure to abate the fire emergency’ which includes the power to requisition ‘any premises, plant, equipment, materials or substance for fire fighting or fire prevention’ (s 91).
It is an offence to fail to comply with the requirements of the declaration or to provide equipment that has been requestioned (s 92).
It is hoped that these declarations give confidence to the Commissioners and those acting under their authority, to take whatever action is required to face the forecast catastrophic fire conditions, and to convey to those in at risk areas of the seriousness of the risk that they face tomorrow and in the next few days.
Australian Emergency Law joins with the entire Australian community in hoping for the best outcomes for affected communities and in thanking those volunteers, both on the fire ground and those behind the lines providing support to fire fighters and communities, for their service. Stay as safe as possible and may good planning and good fortune be on your side.
Thanks for this post – it directly relates to a question I have.
Members of the ACT Rural Fire Service, we are increasingly being deployed to fires in other jurisdictions – we have members in NSW as I type but within the last 12 months we have also been deployed in Queensland and Victoria. In the ACT, I hold a delegation from the Chief Officer that gives me a range of powers under the ACT Emergencies Act – these apply whilst I’m operating in the ACT.
What powers and responsibilities apply when I cross the border? More importantly, what powers and responsibilities apply when I take on incident management roles such as Sector Leader or Divisional Commander?
Hi Michael, I’d be interested to hear your thoughts on what (if any) powers members of the ADF have when providing support under a DACC request in Qld
For a start see https://emergencylaw.wordpress.com/2013/10/21/the-australian-defence-force-defence-aid-to-the-civil-community-dacc-and-defence-force-aid-to-the-civil-authorities-dfaca/
when it comes to response to the civil community the Defence Act 1903 (Cth) gives no particular powers to the ADF. The ADF are a resource provided by the Commonwealth to the States but the states retain control of the response. The ADF can exercise whatever powers are given or delegated to them by the state.
Hello. I have a question about the seemingly “absolute power” granted under section 36 of the SERM to the Minister to direct agencies to act or not act during a declared state of emergency. Per section 36(3)(b), if a direction is given to an agency, the direction prevails over anything to the contrary in Act or law. Does this mean, for example, that under this section, employees of the agency could be directed to act in contradiction of those employees employment award?
I don’t think so. They could direct the agency to do things differently or to undertake different tasks but they still have to work with their employees. They couldn’t direct the agency not to pay staff or not pay overtime. Nor do I think they could direct say the Department of Health to send its staff out to build bridges. It’s a control/command situation. The Minister is in control and can direct the agency to do, or refrain from doing something, but the agency head remains in command and has to work out how to meet that directive with the staff he or she has.
But clearly there is or could be a shift in job description so how far it could go would remain to be tested.