Today’s question revisits an earlier post – Compulsory evacuations in Melbourne (February 8, 2016). My correspondent says that in that post I say:

“under the Emergency Management Act 1986 (Vic) the Minister, during a declared state of disaster can order an evacuation but again, not of anyone with a pecuniary interest.  Police, on the other hand, can declare an area an emergency area and require people to evacuate or leave the area, or allow them to stay under certain conditions.  Their power extends to people with a pecuniary interest and we know that because ss 36B(2) and (3), above, expressly say that this is the case.”

The quoted sections of the Act are:

“36B. Powers in respect of emergency area

(1) If a declaration of an emergency area is made under section 36A, a police officer may exercise the following powers— …

(c) direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d) authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2) Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3) Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a  pecuniary interest  in property in the emergency area or goods or valuables in that property and is on that property.”

Just wanting to clarify something regarding compulsory evacuation of those with pecuniary interest. You state that 36B(3) allows a person to be removed if they are in an area declared as an “emergency area”, irrespective of pecuniary interest. I note that 36B(3) only refers to Subsection (1)(d), not the entire subsection. My reading of that is that a person cannot be forced to leave, but can have conditions placed upon their decision to remain in an “emergency area”?

This is seemingly corroborated by a link you have posted previously (https://ajem.infoservices.com.au/items/AJEM-22-04-02), in which the author states:

“The Emergency Management Act 1986 (Vic) allows police officers to direct a person who is out in the open or in a vehicle to leave the ‘emergency area’ (as declared by the most senior police officer under section 36A of the Emergency Management Act 1986 (Vic)) immediately. ‘Reasonably necessary force’ may only be used to remove persons if it is suspected that an offence against the Act is being committed. Otherwise, force may not be used. Persons with pecuniary interests may however be prohibited from entering their property and persons with pecuniary interests who are already on the property may have a condition placed on their staying. It is unclear if force can be used to remove such persons when the conditions placed on their staying are not met.”

Just hoping to clarify – we were talking about this at work yesterday and just wanted it to be made clear. Are you saying that persons in an “emergency area” can be forced to leave regardless of pecuniary interest?

The Emergency Management Act 1986 (Vic) s 46a says that an emergency area may be declared when (emphasis added) the

… most senior police officer in attendance at an emergency, being a police officer of or above the rank of senior sergeant, is of the opinion that because of the size, nature or location of an emergency it is necessary to exclude persons from the area of the emergency so as to ensure—

(a)        public safety; or

(b)       security of evacuated premises; or

(c)        the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity—…

Section 36B says:

(1)        If a declaration of an emergency area is made under section 36A, a police officer [not just the police officer making the declaration] may exercise the following powers—

(a)        close or cause to be closed any road, footpath or open space otherwise providing access to the emergency area;

(b)       prohibit any person or vehicle from entering or passing through the emergency area;

(c)        direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d)       authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2)        Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3)        Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is on that property.

(4)        …

(5)        If a police officer has reason to suspect that an offence against this Act is being or is about to be committed, the police officer may order a person to leave the emergency area and may use such force as is reasonable necessary to remove the person from the emergency area or to prevent the person from entering the emergency area.

Section 36C(1A) says:

A person who is authorised under section 36B(1)(d) to enter or remain in an emergency area must not, without reasonable excuse, fail to comply with the conditions of the authorisation.

Failure to comply with an authorisation is an offence.

Section 36B(3) allows an authorisation to given to a person with a pecuniary interest when they are on the property of which they have an interest. But equally it must follow that police do not have to give that authorisation. If they are not authorised to be there but cannot be directed to leave (s 36B(1)(c)) what is the value of the ‘authorisation’ when given?

It seems to me that the effect must be that if a person is not authorised to be in the area then s 36B(5) would apply and would allow the police to order the person to leave and use reasonable force to ensure compliance. This could be made clearer if the police phrased it as an authority – ‘I authorise you to be in the emergency area for 10 minutes on condition that you are packing your car and then leaving’.

However the answer is not clear. My interpretation of the various sections is that it is reasonably clear that police can use force to compel a person to leave who has been authorised to stay but has not complied with the conditions of the authorisation even if they are on property for which they have a pecuniary interest. It seems to me that is what ss 36B(3) and s 36C(1) say. But I agree with Loh that it is ‘not clear’.  Further it is not clear what action is to be taken if police refuse to authorise a person to stay. The fact that police can authorise who is on a property where they have a pecuniary interest must also mean they can choose not to authorise that person to stay and that must have some meaning.

My view is that reading ss 36B and 36C together that yes ‘persons in an “emergency area” can be forced to leave regardless of pecuniary interest’. That seems unproblematic if they don’t comply with any conditions authorising them to stay but is less clear if police decline to authorise them to stay. My conclusion is based on the premise that if police ‘may’ authorise a person to stay even if they are on their own property so it must follow that they may also refuse to authorise a person to stay, and that has to have meaning. I think that is also consistent with why an emergency area may be declared. If you want to get everyone out of a building that is at risk of collapsing you want everyone out.

I note however that is inconsistent with the rest of the evacuation processes in Victoria.  Further there is no general power to evacuate people who are not on a road, footpath or open space. It would be also open to a court to find that the section allows police who are evacuating say a park to allow people who are on the road, footpath or open space to stay in the area provided for example they go and stay home. If they leave home they can then be compelled to leave both for breaching the condition and by virtue of s 36B(1)(c).

At the end of the day I would suggest that the sections are poorly drafted and if anyone challenges a direction to leave or a prosecution for failing to comply with an order to leave, some judge will have to sort it out.