Today’s correspondent asks what do I “make of the new Reconstruction Authority Act. I would like your opinion on the Functions and what the interactions are with EM [Emergency Management]?
The Act in question is the NSW Reconstruction Authority Act 2022 (NSW) (the Reconstruction Authority Act). This Act received Royal Assent on 28 November 2022. Some parts of the Act are not yet in force, but in this discussion I will write as if the whole Act is in force.
The introduction of this Act was a response to the 2002 Flood Inquiry by ‘former Chief Scientist Professor Mary O’Kane, AC, and former NSW Police Commissioner Mick Fuller, APM’ (NSW, Parliamentary Debates, Legislative Assembly, 9 November 2022, p. 53 (Anthony Roberts, Minister for Planning, and Minister for Homes) (‘Hansard’). In his second reading speech (Hansard, p. 54), Minister Roberts said:
The structure, functions and powers proposed for the NSW Reconstruction Authority draw on our recent experience responding to the impacts of fires and floods, and provide a single point of reference for reconstructing infrastructure, strengthening government’s recovery response and building our communities to be stronger and more resilient.
The State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) gives a definition of ‘emergency’ (s 4). The Reconstruction Authority Act now adds to the official lexicon a definition of ‘disaster’ (s 6). A disaster
… includes the following—
(a) natural disasters, including, for example, bushfires, coastal hazards, cyclones, earthquakes, floods, heatwaves, landslides, severe thunderstorms, tornadoes and tsunamis,
(b) hazards caused by natural disasters including air pollution, water and soil contamination and water insecurity,
(c) other emergencies in relation to which the Minister has requested assistance from the Authority,
(d) other emergencies in relation to which—
(i) a public authority, including a Minister other than the Minister administering this Act, has requested assistance from the Authority, and
(ii) the Authority has agreed to provide assistance,
(e) events, incidents or matters, or classes of events, incidents or matters, prescribed by the regulations.
The use of the word ‘includes’ suggests that this definition is not comprehensive. Other things may also be a disaster even if we are not sure what those other things may be.
The list of the Authority’s functions (s 10) is very long. That section says:
(1) The Authority’s functions are as follows–
(a) disaster prevention and preparedness, including–
(i) identifying, assessing and managing the risks from disasters, and
(ii) leading disaster resilience, adaptation and mitigation activities, and
(iii) building community capacity and resilience to disasters, and
(iv) developing and implementing methodologies for disaster resilience, adaptation and mitigation activities,
(b) reconstruction and recovery following disasters and other emergencies, including–
(i) assisting the Minster administering the State Emergency and Rescue Management Act 1989 and the State Emergency Recovery Controller to exercise the Minister’s and Controller’s functions in relation to recovery under that Act, and
(ii) facilitating, coordinating and directing the recovery, planning and rebuilding of affected communities, including repairing and rebuilding land and infrastructure and other development, and
(iii) balancing constraints to enable a focused, timely and expedited recovery of affected communities,
(c) information provision and exchange and community engagement, including–
(i) supporting collaboration and coordination between government agencies, local councils, service providers and communities to improve disaster prevention, preparedness, recovery, reconstruction and adaptation, and
(ii) increasing the flow of information and enabling community participation to support the development of strategies for disaster prevention, preparedness, recovery, reconstruction and adaptation,
(d) to coordinate the development and implementation of whole-of-government policies for–
(i) managing the risk of disasters in the State, and
(ii) ensuring communities can recover, reconstruct and adapt effectively and efficiently following disasters, and
(iii) improving the preparedness and resilience of communities for potential disasters,
(e) to prepare and implement a State disaster mitigation plan for disasters in the State,
(f) to provide advice and support to local councils to help maximise the effectiveness of councils’ disaster preparedness and reconstruction programs,
(g) to provide advice and assistance to local councils and relevant strategic planning authorities under the Environmental Planning and Assessment Act 1979 to ensure strategic plans prepared under that Act, Division 3.1 and the State disaster mitigation plan align,
(h) to lead the management and coordination of housing and infrastructure renewal and recovery within affected communities,
(i) to work closely with affected communities to ensure the needs of each community are recognised in the recovery and reconstruction of the community, and to improve the disaster preparedness and resilience of communities,
(j) to lead public education on disaster risks and certain disaster preparations,
(k) to carry out research, and provide advice, proposals, recommendations and reports to the Minister, about–
(i) disaster prevention and preparedness, and
(ii) recovery and reconstruction following disasters,
(l) to enter into joint ventures, project delivery agreements and other arrangements with landowners, developers, State and Commonwealth government agencies and local councils in relation to disaster prevention, recovery and reconstruction,
(m) to implement funding schemes to provide financial support in relation to disaster prevention, recovery and reconstruction,
(n) to carry out rezoning and land use planning, including exercising the functions of local councils for the purpose of land use planning in relation to disasters,
(o) to carry out flood modelling and the determination of flood planning levels, particularly in relation to high risk catchments,
(p) to assist with the development of flood plans,
(q) to monitor the cumulative impact of disasters on the State, including by collecting and storing data about the impact, or likely impact, of disasters across the State,
(r) to exercise other functions conferred or imposed on the Authority by or under this Act or another Act,
(s) to do anything supplementary, incidental or consequential on the exercise of the Authority’s functions under paragraphs (a)-(r).
(2) To avoid doubt—
(a) the functions of the Authority are not intended to limit functions given to agencies by the State Emergency Management Plan under the State Emergency and Rescue Management Act 1989, and
(b) to the extent of any inconsistency between a direction given by the Authority or chief executive officer in exercising functions under this Act and a direction given by the State Emergency Recovery Controller in exercising functions under the State Emergency and Rescue Management Act 1989, the direction given by the State Emergency Recovery Controller under the State Emergency and Rescue Management Act 1989 prevails.
Emergency management covers the principles of preventing, preparing for, responding to and recovering from an emergency ranging from a localised incident to a complex disaster. NSW has agencies do deal with specific hazards – in simple terms the State Emergency Service for floods and storms, the Rural Fire Service for fires in rural areas, NSW Fire and Rescue for urban fires, urban search and rescue and hazardous material events, NSW Health and NSW Ambulance for health issues such as disease outbreaks along with others identified in both legislation and the SEMP.
Reviewing the functions of the Reconstruction Authority shows that the focus on prevention and recovery will belong to the Authority. This makes sense as agencies like the SES and the fire brigades have had little capacity to control the development of risk (see Building risk (June 4, 2022)) and have also had no responsibility for the longer term recovery of communities after the fire or flood. The Reconstruction Authority Act moves the P for prevention and the R for Recovery to the Authority rather than the agencies that will be seen more clearly as emergency response rather than emergency management agencies.
To this end, Minister Roberts said (Hansard, p. 54):
The authority will be required to work closely with the emergency service agencies and will establish formal agreements or memorandums of understanding with the combat agencies across all hazards to ensure effective collaboration across disaster prevention, preparation, response and recovery.
In terms of prevention the Authority will have significant powers to affect land use planning. Declarations may be made about specific projects or areas of the state that are declared to be a ‘reconstruction area’ or a ‘disaster prevention area’ (ss 39-41). With respect to those projects or those areas, the Authority can acquire land, including by compulsory acquisition, and can then clear, develop or dispose of that land or dedicate the land to a public purpose (ss 45-48). The Authority could for example, after a flood, acquire land that was flood affected and, at the same time acquire other, less hazardous land. They could clear the flood affected land, build new housing on the acquired land and then dedicate the old land to be used as a park and flood mitigation zone.
The Authority can give relevant decision makers notice requiring them to make their decision or complete their processes. This would be important post-disaster for example, where there is an application to redevelop land or take urgent remedial action such as clearing land, but where the relevant council is taking too long to make a decision. The Authority can issue a Notice to Decide (s 50) or a Progression Notice (s 51) to compel the decision maker to act. If the decision is not made within the time the Authority can ‘step in’ and become the relevant decision maker (ss 52-58). This should have an impact on decisions, particularly for large projects, that are often held up by delays at local levels where local decision makers are themselves impacted and overwhelmed by a disaster.
With respect to a declared project (s 39), that is a project that:
… is necessary to help—
(i) facilitate the protection, rebuilding and recovery of an affected community, or
(ii) mitigate against potential disasters for an affected community, or
(iii) improve the resilience of an affected community for potential disasters through, for example, the betterment of the community
The Authority may step in to complete or take over the project and may complete the project (ss 60-67) and, in some circumstances, without the need for the assessment under the Environmental Planning and Assessment Act 1979 (NSW) (s 68).
The Minister said (Hansard p. 55) that these powers
… will enable the authority to exercise functions to expedite decision-making processes and to step in to manage projects and development where necessary to avoid delays in delivering critical development or to pause development that is inappropriate in the face of a disaster…
One of the authority’s biggest successes will be in ensuring that development for the purposes of reconstruction and mitigation happen faster. The authority will do that by permitting development, supporting development approvals and, in some circumstances, undertaking development where it is appropriate to do so…
These powers are not designed to strongarm or encourage unnecessary or unwanted development in New South Wales… The powers exist to ensure that the red tape can be removed when action is required to protect people and property. They will ensure that the authority can work with local councils to keep things moving so that communities can recover from disasters as soon as possible.
Of course, this brief review does not do full justice to the Authority or explain the full extent, and limits of its powers. Identifying how the Authority exercises its powers, fulfils its functions and what impact it has on disaster resilience will take time as the Authority commences its operations and establishes its credentials. For those interested in learning more about the authority, you can visit the website – https://www.dpie.nsw.gov.au/about-us/our-agencies/nsw-reconstruction-authority – or read the legislation – https://legislation.nsw.gov.au/view/html/inforce/current/act-2022-080.
Emergency management runs across the spectrum described as PPRR – Prevent, Prepare, Respond and Recover. It is a feature of regular commentary that the emergency services have to live with and respond to events where the creation, or prevention, of the hazard lies with others eg with those responsible for land use planning and development. The management of the recovery of communities has been developed on an ad hoc basis either by community leaders who step up when the need arises or the creation of specific recovery arrangements such as the current Northern Rivers Reconstruction Corporation or the deployment of retired military leaders to lead the recovery (think for example of the appointment of Major General Mick Slater to lead a Queensland flood recovery task force, before the creation of Queensland’s Reconstruction Authority that he was then tasked to lead).
The new NSW Reconstruction Authority has the power to take the lead in both the management of projects designed to prevent and recover from future disasters. It significantly moves responsibility for ‘Prevention’ and ‘Recovery’ from the emergency response agencies to a single authority that will, hopefully, allow those aspects of emergency management to attract more consistent consideration.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the 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.