There have been demands that the Prime Minister declare that the current fire emergencies represent a national emergency. For example, Laura Tingle (‘Bushfire emergency reveals Scott Morrison’s leadership failure not just climate policy vacuum’ 7:30 (Online) 14 December 2019) said:
Yes, Prime Minister, it is a national disaster … What’s more, we should be watching the Government “in action” and “dealing with the issues that the Australian people are facing”.
But as plenty of people have observed, that has not been happening, or appearing to happen.”
Senator Sarah Hanson-Young said (Facebook, 20 December 2019):
As soon as the Prime Minister returns to Australia, he must declare a National Emergency and convene an emergency summit of the State Premiers, Emergency Chiefs and health professionals.
This begs the question of ‘what is a national emergency and what would such a declaration mean?’ The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact. Unlike a declaration at state level it would not trigger any extraordinary powers or authority or release any emergency funds. The declaration, if made, would at best be symbolic.
Symbolism is not necessarily a bad thing. During the 2009 Victorian ‘Black Saturday’ bushfires the emergency managers did not give consideration to declaring a state of emergency on the basis that it would not add anything in terms of power and resources. There was no declaration as a declaration was not required. The 2009 Victorian Bushfires Royal Commission (2009 Victorian Bushfires Royal Commission, Final Report Summary, p. 8) said:
Even if practical cross-agency and community cooperation was already in evidence and no additional coercive powers were needed, such a declaration would have recognised the gravity of the situation and might have sharpened emergency agencies’ focus on community safety and warnings.
There is some residual power in the Commonwealth to deal with emergencies that are truly national in scale and that, because of that scale, only the Commonwealth can deal with. In Pape v Commissioner of Taxation [2009] HCA 23 four of seven judges ((French CJ and in a joint judgment Gummow, Crennan and Bell JJ) accepted that the Global Financial Crisis was a crisis of such scale that the Executive could Act to appropriate money from consolidated revenue to pay us all sums up to $900 per person to stimulate the economy. That was accepted, in part, because no-one challenged that question of fact.
In their joint judgement (at [233]) Gummow , Crennan and Bell JJ said ‘The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale [of the Global Financial Crisis]’. In that case the executive government (the Prime Minister and Cabinet) can act to take control of the disaster even without legislative authority.
The dissenting judges (Heydon J and in a joint judgment Hayne and Kieffel JJ), however, were reluctant to leave it to the Commonwealth to decide for itself what is a national emergency. To do so would allow the Commonwealth to expand its authority beyond the distribution of powers set out in the Constitution. Justices Hayne and Kieffel JJ said (at [353]):
… if it is to be for the Executive to decide whether there is some form of “national emergency” (subject only to some residual power in the Court to decide that the Executive’s conclusion is irrational), then the Executive’s powers in such matters would be self-defining.
Heydon J said (at [551]):
The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”
That is in the absence of any legislative authority, a declaration by the Prime Minister that this is a ‘national emergency’ and for the Prime Minister to then seek to exercise some national authority would be to extend the power of the Commonwealth beyond that provided for in the Australian Constitution.
And if there is a power to deal with a national emergency it begs the question of whether this is one. Heydon J said (at [550]) the power to deal with a national emergency (in that case a national fiscal emergency):
… depends on satisfaction of a factual pre‑condition. That pre-condition is that the emergency is only capable of being promptly and appropriately met by Commonwealth action.
It is unclear, given the response by the state agencies including coordinating Commonwealth and international assistance, what the Commonwealth would or could add that is not already being provided.
The Commonwealth does have emergency plans and frameworks in place (see Department of Home Affairs Emergency management (5 August 2019)). This includes COMDISPLAN which ‘explains how the Australian Government responds to requests for assistance from state and territory governments responding to a disaster’. The Commonwealth government is responding to those requests (see for example Defence continues bushfire support (25 December 2019)). This Defence Aid to the Civil Community ( or ‘DACC’; see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)) provides Commonwealth resources but control of the response remains with the state authorities.
In work done for the Bushfires and Natural Hazards CRC (The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (April 2019)) Andrew Gissing, Cameron Moore and I:
… argued that a disaster where a state government is overwhelmed so that the state itself is at risk of collapse and there is no effective state government would be a national catastrophic disaster that would justify Commonwealth intervention in the affairs of the state in order to restore effective state government. What disaster, short of the collapse of state government, would be sufficient for direct Commonwealth action cannot be conclusively defined.
There is no suggestion that the current fires are going to overwhelm the states so why they are an event that ‘is only capable of being promptly and appropriately met by Commonwealth action’ is unclear. In the absence of any definition of a national emergency, agreed to by the States and Territories, it is not at all clear what the Commonwealth could do, if a ‘national emergency’ was declared, that the Commonwealth cannot already do.
‘Hard cases make bad law’. This is not a ‘case’ in the legal sense, but the fires are a hard, dramatic and emergency situation but responding to ‘this’ emergency is likely to create ‘bad law’ for future emergencies. No doubt we can look forward to post event inquiries from these fires – whether there is one in each state or a Commonwealth led inquiry (such as that that followed the 2002-03 fire season; House of Representatives Select Committee into the recent Australian bushfires A Nation Charred: Report on the inquiry into bushfires (23 October 2003)). That inquiry may be the place to consider what, if anything in the response was missing and that could only be provided by the Commonwealth and to consider then what a national emergency looks like and what powers and authority needs to be vested in the Commonwealth to allow it to take the lead in an emergency that threatens the nation.
Conclusion
There is no legislation to allow the Prime Minister or the Governor-General to declare a National Emergency. In the absence of that legislation the only value of such a declaration is symbolism. A symbolic declaration may be important and useful, but it should be understood that is all it would be.
There is, in the executive power of the Commonwealth, some residual power to allow the executive government to step up and deal with a truly national emergency but there is no reason to think the current fire emergencies threaten the existence of either the States or the Commonwealth to meet the necessary threshold for such an emergency.
Further reading:
- ‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102;
- ‘Managing ‘civil contingencies’ in Australia‘ (2014) 18(2) The International Journal of Human Rights, 143-158; and
- Coordination of federal, state and local disaster management arrangements in Australia: lessons from the UK and the US (August 2017) 119 Insights (Australian Strategic Policy Institute).
POSTSCRIPT
There have been several comments on this post that suggest I have not made the conclusion, or the point, clear enough. I’ll use this comment as a stimulus to try to make the point clearer. A correspondent wrote:
One argument for introducing a National Emergency, albeit a weak one, would be if large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources.
An argument for introducing, or declaring, a national emergency is that the declaration will have some important effect. It may be symbolic and help focus the mind and show the community that the Commonwealth is taking the matter seriously. It may be more and actually give rise to emergency powers to be deployed during the emergency. The ‘argument for’ has to be ‘that it will achieve something’.
The scenario, ‘large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources’ may be sufficient to meet the national emergency threshold test. But what would a declaration allow the Commonwealth to do that cannot already be done? That depends on the basis of the declaration.
What I was trying to say is that there are two possible bases for a declaration.
One is under legislation – the Commonwealth equivalent of the Emergencies Act 2004 (ACT); State Emergency and Rescue Management Act 1989 (NSW); Emergency Management Act 2013 (NT); Disaster Management Act 2003 (Qld); Emergency Management Act 2004 (SA); Emergency Management Act 2006 (Tas); Emergency Management Acts 1986 and 2013 (Vic) and Emergency Management Act 2005 (WA).
But there is no equivalent Commonwealth legislation. If there was it could identify what the threshold of a national emergency is and who is empowered to do what. But that legislation does not exist.
The second basis is to rely on the ‘prerogative power of the Crown’ now given to the Commonwealth by s 61 of the Constitution and caught up in the phrase ‘the executive power of the Commonwealth’. What Pape’s case was saying that in a truly national emergency, where the Commonwealth is the only ‘arm of government capable of and empowered to respond to [the] crisis’ then the Commonwealth can exercise extraordinary powers to deal with that crisis. But what is a sufficient crisis to trigger that nationhood power is not defined, it remains to be tested on a case by case basis.
An issue in Pape’s case was whether or not the decision by the Commonwealth that an emergency is indeed a national emergency can be challenged in court. The majority (French CJ and in a joint judgment Gummow, Crennan and Bell JJ) did not address that as it was not disputed that the GFC did meet the threshold. The dissenting judges (Heydon J and in a joint judgment Hayne and Kieffel JJ) said it cannot be left to the executive to decide because if it was they could expand their own powers by declaring everything to be a national emergency – and as Hayden J said, in this day and age we’re constantly told everything is a ‘national emergency’.
And just as in the GFC, if it’s left to some vague exercise of executive power, it’s open to challenge and the last thing you want in a disaster is someone taking the government to the High Court.
So, what was my point meant to be?
- There is a call for the PM to declare a national emergency.
- In the absence of legislation that would, legally, not mean anything. It may be important symbolically and symbolism is important hence the quote from the 2009 Victorian Bushfires Royal Commission (above) but it would not give the Commonwealth any special powers or authority or give to the Commonwealth the power to direct the response or get more involved than they already are.
- If what was meant was this is a national emergency of the type imagined in the concept of ‘the executive power of the Commonwealth’ it is my (and my colleagues’ argument) that this current set of fires would not meet that threshold.
To return to the scenario posited above:
… large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources.
That would meet the threshold for a ‘national emergency’ that only the Commonwealth could manage if the impact was that the very governance of the states were at risk – that is the disasters were truly overwhelming not only the resources of the State but the ability of the state government to function. It could be the role of the Commonwealth to step in and restore effective governance to ensure that the states, an essential part of the Australian polity, were to continue. To do so would be to defend the Australia provided for in the Australian Constitution and would be as much a matter for the Commonwealth as defending Australia from overseas aggression. But these fires are not at that scale.
Australian Emergency Law 
One argument for introducing a National Emergency, albeit a week one, would be if large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources.
Why then, is there the National Emergency Medal (Australia)? Instituted on 23rd October 2011.
The Australian Honours are managed by the National Government. The description of the National Emergency Medal (https://www.gg.gov.au/australian-honours-and-awards/national-emergency-medal) says: “The National Emergency Medal recognises service in response to a nationally significant emergency. Nationally significant emergencies must be declared by the Australian Government under the National Emergency Medal Regulations 2011”. I do not think that a declaration that an event is a ‘nationally significant emergency’ for the purposes of the National Emergency Medal Regulations 2011 (Cth) is what people mean when they call for for a declaration of a national emergency.
Under the existing arrangement where states declare the emergency situations, who pays for what? Are all federal provisions free? The reason i ask is that im a student of an emerging new economic school of thought known as modern monetary economics. An outcome of this economics is that it identifies that currency issuing govts, so our federal govt, can essentially afford anything thats for sale in its currency, so Australian dollars. State govts however are still constrained by the normal having to get dollars and not spending more than they get. So i wonder if both NSW and Vic are at the moment going as hard as they can or do they have some fear of the costs. In a modern monetary economic world, being able to declare a national state of emergency would/should trigger the supply of money and resources to the states to fight these things that is far greater than any state would currently be game to attempt now, lest it runs up a big loan to the banks and is stuck with interest burden as well.
Thank you for this comment, you can see my answer at emergencylaw.wordpress.com/2020/01/04/paying-for-commonwealth-assistance/
Thank you. It seems like feds cover most, which is how it should be. Not sure why at state level there’d be any reluctance not to call for the maximum help they can get (which it appears to me the NSW gov has tended to do). However, I can see why the current fed govt would be very reluctant, since the costs of this will damage their possibility of attaining their budget surplus they desire. I know that sounds crazy but the indicators are there.
Note that the NSW government has denied that it has refused any offered assistance and has asked for and received whatever assistance it wanted
Under the Social Security Act 1991 (Cth) (s 36A) the relevant Minister can “determine in writing that an event is a Part 2.23B major disaster” — in which case, a person who “has suffered a loss of income as a direct result of the event” can be paid a Disaster Recovery Allowance (see s 1061KA).
Not just symbolic at all! One might think we are facing a major disaster, and the Commonwealth could decide to provide financial assistance to those affected (including fire fighter volunteers).
I do not think that people calling for a declaration of a National Emergency meant a declaration of a major disaster under the Social Security Act. I think they meant a declaration along the lines of those made in the states and territories and as noted the Commonwealth does not have legislation to do that.
In any event the Commonwealth has declared the current fires to be a major disaster for the purposes of disaster relief payments – see https://www.disasterassist.gov.au/Pages/home.aspx
Please learn the difference between week & weak.
Incorrect spelling & grammar leaves one with zero credibility
Thanks for picking up the week/weak error on my blog. If it’s any defence I cut and pasted the quote from another comment but I should have corrected it. I agree with what you say about spelling and grammar but errors do slip through (including misplaced apostrophes). Cheers
It could be asserted that incorrect spelling leaves one with zero credibility. Likewise, incorrect grammar leaves one with zero credibility. However, incorrect spelling and grammar leave one with zero credibility.
Is the Australian government obliged to accept offeredassistance from other countries in a reasonable period of time? If they failed to do this then do they fail in their duty of care to their citizens?
International law is clear; a disaster affected government is not obligated to accept offers of assistance. The International Law Commission’s Draft Articles on the Protection of Persons in a Disaster recommended that the international community adopt that there is a duty to accept assistance when a country is overwhelmed but that has not yet reached the status of international law. In any event I’m sure Australia would say it is not overwhelmed, we are managing to support affected populations and meet their human rights (right to shelter, food, etc). And no amount of international assistance is actually going to put the fires out.
And a country has to have the ability to reject offers it really doesn’t think it needs or that would not help so there has to be a right to say ‘no’. Again the ILC’s articles want a rule that country cannot ‘arbitrarily’ refuse assistance, but every country that wanted to say ‘no’ would come up with a reason so they could say they weren’t being ‘arbitrary’.
There certainly are some international law claims about a countries duties to its citizens that some say give rise to a right of citizens to demand, and others to provide, disaster assistance even without the consent of the affected country (hence the creation of ‘Doctors without borders’). I don’t see the NGO community yet massing at Australia’s borders to demand access to assist the affected population but we do have a very large sea border that will make that hard.
In short, no Australia is not obliged to accept offered assistance from other countries; but having said that are there offers we’ve refused? We’re getting lots of help from US, Canada, New Zealand, Singapore. Fiji I understand offered some troops but I’m not sure if we accepted that.
There are at least three arguments in tension with each other:
Politic: the Governments (Cth, States and Territories), must continue to project and maintain their authority. The Governments of today are varied in direction and philosophy, in as much as there are several factions within each party. And, like any family, the cohesion of the Government and network of Government is revealed when a crisis hits.
In my view, the Governments are attempting to downplay the current crisis-without-borders, because there had been no solution in the works. And, policies made in crises are often bad policies.
Whatever the prevailing view, this item will be on the political agenda for the next elections, at all levels.
It might bring new Aussie narratives and glossaries to a content sadly absent in meaning.
Economic: I haven’t read the Garnaut I or II report. I hope he distilled some economic projections of the projected disaster. Life span costs for the loss and rebuild of the agricultural sector, as well as personal lives and communities. The need, and cost-of-need for out of sector involvement, eg RFS, will further test the ability for COAG to work with Commonwealth for competitive and finite dollars.
The trap will be the economic modeling of geography vs population, and the oversight of any proposed commonwealth funding.
Legal framework: all of this depends on the current legal framework. If the Cth Government’s persuasion is to promulgate an Emergency Services Act (Cth), it would need to do with consent of the states, to make it workable. Such a framework would be problematic even if a referendum was proposed, and I think, would result in a Constitutional quagmire, similar to the position of health as it stands today.
As always, the Governments of the day have to make do with what they’ve got. In my opinion, the lack of overt leadership in the current climate is a result of a lack of stewardship in all the current Governments. What’s needed is a long hard look at our democratic processes and consider how we, democratically with joined collective spirits, got here.
I have just been reading this in relation to the bush fires but I could have easily mistaken your thoughts for commentary on the Covid-19 pandemic. What is old is new again!
As a former student-at-law, I am really fascinated by how the Federated system is operating under these conditions. By contrast, a friend of mine has moved from New York City to Houston Texas, and she remarked that the idea of border control between States in the USA is an anathema to the national consciousness.
Thank you for your very informative article. It should be compulsory reading, and may I say compulsory understanding (if that would be possible) by the journalists and media “experts” in Australia. You wrote that the Commonwealth does have emergency plans and frameworks in place (see Department of Home Affairs Emergency management (5 August 2019)). I find it hard to take the reaction by the Australian media and their action against the Prime Minister when these organisations claim to employ investigative journalists. I am but an interested citizen who is interested in facts and over the past couple of weeks have been downloading a multitude of articles/reports (and government press conferences) in dealing with procedures dealing with disasters such as the current bush fires. It would seem, as you are well aware of, some media personalities and the social commentators have their own agenda and they do not let the facts get in the way of a good witch hunt. The journalists who claim to be real ones, but continue on with their lack of truthful reporting, are either not very good at investigating and reporting facts or are just plain lazy shock jocks. It would seem that people do not understand the reason for the separation of powers between state governments and the federal government. I have commented to many friends that you have to be very careful what you wish for. Regards Neil.
I guess this issue will be raised again now that we have a pandemic. Having separate States coming up with their own response, but the public and media looking to the PM to solve it, results in a circular blame game. Is there capacity in times like this for the federal government to direct state departments?
See https://emergencylaw.wordpress.com/2020/03/25/what-is-a-national-emergency-answer-covid-19/
Thank-you M. Eburn,
For all of your excellent replies. Am following these remarkable so called, “powers” to hold Our nation Still, and, locked up as it were. Threatening fines of, “up to $50000”, as a fear tactic of absolute control. I question the power to do so.
Regards P. Burke.
H.Dreger
I refer to the observation removed from the text above:
In their joint judgement (at [233]) Gummow , Crennan and Bell JJ said ‘The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale [of the Global Financial Crisis]’. In that case the executive government (the Prime Minister and Cabinet) can act to take control of the disaster even without legislative authority.
WITH ALL DUE RESPECT, : This definition of “Executive Government” flies in the face of the Constitution itself. I propose that the Executive Government is NOT the Prime Minister and Cabinet as suggested above IeS61: States: The Executive Government is vested in the Crown [consequently the Gov. General] and extends to the Maintenance of the Constitution and the Laws of the Commonwealth. S62-64 Further states that an Executive Council is chosen by the Governor General and [these special ministers] hold office at his pleasure to ADVISE him, and they shall responsibilities as he deems appropriate and subject to the Constitution.
There is NO mention of a ‘Cabinet’ or a Prime Minister regarding the Executive in Chapter II of The Constitution . Consequently, it would be a stretch indeed to relegate any such powers as suggested above to the ‘Executive Government, particularly as described at [233])
It may of course be argued that this has been established by precedent, but precedent cannot overrule The Constitution.
Regards H. Dreger
The Governor-General acts only on the advice of his or her ministers. The GG may appoint the Executive Council but he or she appoints the people the PM recommends, ie the Ministers of the Crown. And the PM is the member of the lower house who has the confidence of the house, ie the leader of the party with the majority. We all know that the Constitution does not refer to the office of Prime Minister nor does it anticipate party politics, but that is the world as it has evolved. You may be literally correct but ‘a realistic understanding of Australia’s Executive Government cannot be obtained from the Constitution alone, and in fact a literal reading of the Constitution can be misleading’ (https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_20_-_The_Australian_system_of_government). See also:.
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=E3A55BDD270A43929282D7A5274A3361&_z=z and https://australianpolitics.com/executive/overview