Today’s question is about the State of Emergency and the idea of ‘tourist exclusion zones’ in NSW.

There appears to be some confusion in our area of the “Tourist exclusion zones” that the NSW RFS issued last week ahead of extreme fire dangers predicted for last Saturday.

Firstly, is this classed as a legal order or or a strong recommendation?

Secondly, since the attached flyer was put out, there has been no further mention about it in the media or via the RFS website or Facebook pages, which has people confused as to whether the exclusion still applies and whether tourists are still banned (if banned is even the correct word?)

Obviously the tourist exclusion zone was beneficial as fire did close major roads on that Saturday. But there is confusion now regarding whether any legal restrictions currently apply.

Publication of the ‘Tourist Exclusion Zone’ is shown below:

Tourist exclusion zone

The most recent declaration of a State of Emergency was made on 2 January 2020 and remains in force until 10 January 2020 so it is in force at the time of writing this post. This declaration followed earlier declarations made on  The ‘emergency area’ for the purpose of that declaration (s 32A) is ‘the whole of the State’.

During a State of Emergency (State Emergency and Rescue Management Act 1989 (NSW) s 37):

(1) The Minister may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency, 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…

(2) If the person does not comply with the direction, an emergency services 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.

It is an offence to obstruct the minister or emergency personnel (s 40) but it is not an offence to fail to comply with a direction under s 37. The remedy is, as quoted above (s 37(2)), that a person who fails to comply can be removed with force.

Section 37A allows the Minister to

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…

An authorised officer may use force to ensure compliance with a direction under s 37A (s 37E).

Under the Rural Fires Act (1997) (s 22A):

An officer of a rural fire brigade or group of rural fire brigades may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

Further (s 24):

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

How was this zone declared?

We can, with confidence, say this declaration of a ‘Tourist Exclusion Zone’ does not purport to be action under the Rural Fires Act.  The area described is so large it could not be described as being ‘near a [particular] fire, incident or other emergency’ and it is not purporting to close a road or public place but to ask people to leave the whole area.

Equally the order is not made under s 37E. It is not an order closing a ‘road’ or a ‘place’.  The roads and places remain open, just a certain class of people are asked to leave.

If this is a legal order, it has to have been made under the State Emergency and Rescue Management Act 1989 (NSW) s 37 and the disaster declaration.  The first point to note is that if this is meant to be a declaration under s 37, it will expire tomorrow when the State of Emergency declaration lapses (unless a fresh declaration is made and then then further orders made under s 37).

I cannot find any more formal direction made by the Minister or purporting to be made by an emergency services officer, so it seems that the extract in the photo above is the extent of the declaration.  In that document there is no indication who has made this declaration (ie it does not say that this comes from the Minister or an authorised Emergency Services Officer).

The declaration as shown does not purport to be made under s 37, it does not use the language of s 37 (it says “If you are holidaying on the South Coast … you need to leave before this Saturday”; it does not say “If you are holidaying on the South Coast … you are directed to leave before this Saturday”).  The order is vague, it does not define who is a ‘tourist’ so it is not clear who it applies to.  Is a person visiting family a ‘tourist’?

It also has no express time limit. It does say

Dangerous conditions for holiday makers on the South Coast of NSW this Saturday 4 January 2020.

  • Widespread Extreme Fire Danger is forecast for the South Coast this Saturday 4 January 2020.

On one view, no matter how it was made it expired on 4 January 2020.  The alternative is that, if it was made under the State of Emergency declaration it will have to lapse when the declaration lapses.

On the other hand, in a news publication (Kevin Nguyen and Emma Elsworthy ‘NSW Premier Gladys Berejiklian declares state of emergency, as thousands flee South Coast ahead of horror fire weekendABC News (Online) (2 January 2020)) the making of the State of Emergency declaration is announced and, it goes onto say:

A “tourist leave zone” has been declared for a 14,000-square-kilometre area between Nowra and the edge of Victoria’s northern border.

The NSW RFS initially declared a leave zone between Batemans Bay down to the border, but extended that zone to the area between Nowra and Ulladulla late on Thursday.

It is the “largest mass relocation of people out of the region that we’ve ever seen,” NSW Minister for Transport Andrew Constance said.

RFS Deputy Commissioner Rob Rogers said it was a race against the clock to get tourists out before Saturday.

That links the declaration (or at least the extension of it) to the declaration of the State of Emergency but there is no express linkage in the material above.

Why does it matter

Whether this was made under s 37, or not, will be important only if there is a conflict.  The most obvious source of conflict will be if an authorised officer or police officer directs a tourist to leave and he or she does not and the tourist is charged with an offence under s. 40, or the authorised officer attempts to use force and the disgruntled tourist sues for assault or false imprisonment or makes a complaint to police regarding an assault.

In either case whether this is a declaration under s 37 would be essential defence to either party.  If it is not, the tourist cannot be guilty under s 40 and the officer who attempts to use force to enforce it, would be.

Hopefully tourists did comply (for their own safety) and hopefully RFS members or police aren’t using force to evict people for their own safety, but lawyers have to think of all the possibilities.

My view

My view is that this is not a direction under s 37. If a direction is going to compel behaviour then the people to whom it is directed to need to know they are required, by law, to comply as do those that are charged with enforcing it.  The failure to indicate by whom the direction has been made, the failure to reference the Act and the declaration of the State of Emergency, the failure to use the words of s 37 and the failure to even attempt to define to whom the order applies would, in my view, lead to the conclusion that this was at best, advice, and not a legally binding direction.  The very fact that my correspondent is confused points to the problem.  If it is so unclear no-one can know what their legal obligation was so the inference is that the document does not, and does not purport to, impose a legal obligation.  If one wanted to impose an obligation and exercise power under s 37 the text would have to be much clearer so people to whom it is directed can know that it applies to them and what they are required to do.

In any event, again given people need to know what their legal obligations are, if it was a direction under s 37 it was in force only until 4 January 2020 as that is the only time period referenced in the direction.

Conclusion

To turn to the questions then, my view is:

  • Firstly, is this classed as a legal order or a strong recommendation? It is my view that a court would conclude this was a ‘strong recommendation’, advice rather than a legal order.
  • Does ‘the exclusion still [apply and are]… tourists are still banned (if banned is even the correct word?)’? In my view no, the only time period mentioned is 4 January 2020 so it must have lapsed as at 5 January.  If I’m wrong and it is an order under s 37 and did not expire on 4 January, it will lapse when the declaration lapses (tomorrow) and would need to be remade if a further Declaration of Emergency is made.