In March 2022, the Commonwealth government declared that the flood emergency in Lismore, NSW was a national emergency (see Stephanie Borys and Henry Belot ‘Prime Minister declares floods a national emergency, more money for residents in Lismore and other NSW towns’ ABC News (Online) 9 March 2022). This was the first use of the Commonwealth’s powers under the National Emergency Declaration Act 2020 (Cth).

According to Borys and Belot:

The emergency declaration gives the federal government power to deploy money and resources faster and is a legislative power that [the Prime Minister] Mr Morrison sought after the 2019-2020 bushfire crisis.

Mr Morrison said he intended to ask the Governor-General on Friday to formally make the declaration, which would cover both NSW and Queensland. 

“To make sure all emergency power is available and we cut through any red tape that might be faced,” he said.

Mr Morrison said to make the declaration, both the NSW and Queensland premiers had to formally request it.

I have previously written about the National Emergency Declaration Act – see Federal Parliament passes the National Emergency Declaration Bill 2020(December 15, 2020).  As I noted in that post:

The effect of the declaration is that it gives Ministers the power to modify or vary provisions of legislation (s 15) that

… requires or permits any of the following matters (a relevant matter):

(a) the giving of information in writing;

(b) the signature of a person;

(c) the production of a document by a person;

(d) the recording of information;

(e) the retention of documents or information;

(f) the witnessing of signatures;

(g) the certification of matters by witnesses;

(h) the verification of the identity of a person;

(i) the attestation of documents;

(j) the reporting or notification of a matter to a Department, agency or authority of the Commonwealth.

The other effect is that whilst a national emergency declaration is in force:

The Prime Minister may, by written notice, require an accountable authority of a Commonwealth entity to provide specified information to the Prime Minister for the purposes of preparing for, responding to or recovering from an emergency to which the national emergency declaration relates.

It is not clear how these powers would or did affect the flood affected citizens of Lismore and other areas.

With respect to a request for a declaration, Queensland Premier Palaszczuk was quoted (Bryant Hevesi, ‘National emergency declaration: Annastacia Palaszczuk says ‘we’ve actually gone past that’ as flood waters in Qld, March 10, 2022) as saying:

“Queensland has very good disaster management arrangements in place, unfortunately we’ve seen a lot of national disasters so we actually respond very quickly,” Ms Palaszczuk said. 

“We’ve actually used our own state specific disaster declarations and they’ve provided us with all the necessary powers that we need, especially when it means like closing roads or closing schools or relocating people.”

“All [the National Emergency disaster declaration] … does is effectively remove some red tape when it comes to how Commonwealth agencies are able to perform their duties in relation to this disaster. It doesn’t impact on the ADF resources. They’re already fully available. It doesn’t trigger any payments.” 

But the Prime Minister was only partially correct when he said ‘to make the declaration, both the NSW and Queensland premiers had to formally request it.’  A request from the Premier of an affected state is only one ‘trigger’ for a declaration (s 11(1)(c)(i)).  A declaration can be made, without the request of the State Premier, where the Prime Minister is satisfied that ‘the making of the declaration is appropriate, having regard to the nature of the emergency and the nature and severity of the nationally significant harm’ (s 11(1)(c)(iv)).  Later (‘Flood-ravaged Queensland set to be included in federal government’s emergency declaration, despite earlier refusal’ ABC News (Online), 10 March 2022) the ABC reported that the declaration was to be extended to Queensland ‘… despite Premier Annastacia Palaszczuk’s earlier refusal of the offer.’ The article continues:

“I think there’s been a bit of a misunderstanding about what the state of emergency declaration entails,” Mr Morrison said.

“It does not impact on the flow of funding support of defence force assistance or any of those things, that is all flowing.

“What it does is it assists the Commonwealth government in managing the regulatory issues in a more streamlined way, which particularly becomes more relevant as you move through the recovery phase.”

A spokesperson for the Premier’s office said it was a decision for the Commonwealth.

“It doesn’t require the Premier’s agreement,” they said.

One might infer that indeed the declaration was made without the Queensland premier’s request.

Under the National Emergency Declaration Act 2020 (Cth) s 14A the Senate Standing Committee on Legal and Constitutional Affairs must conduct a review of the declaration within one year of the declaration being made. We may have to wait until that review, or the report of the independent inquiry into the floods (‘NSW Government establishes independent flood inquiry’, NSW Government, 21 March 2022) to determine what, if anything, the declaration achieved and if any orders were made to relax Commonwealth requirements as part of the response to the floods.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW)Natural Hazards Research AustraliaNSW Rural Fire Service Association and  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.