On 27 March 2024, the Hon Brett Lee Potter, in his capacity as the Northern Territory’s Minister for Police, issued a declaration under the Emergency Management Act 2013 (NT) s 18(2). The next day the declaration was amended so that it referred to Mr Potter as the Minister for Fire and Emergency Services rather than the Minister for Police. The declaration says that:

… an emergency situation exists in the area described as “High Risk Area – Alice Springs Precinct” and shown within the thick yellow lines depicted on Certified Plan S2023/023 lodged with the Surveyor-General, Darwin.

The area is shown on the picture below. The picture is sourced from, and you can read the declarations in full, at the following website https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration.

The declaration remains in force until the Minister declares that it is no longer in force (s 18(1)(a)).

The declaration itself says nothing about the response to the ‘emergency situation’. The website says:

Dates and hours in effect

Wednesday 27 March to Wednesday 10 April 2024 from 6pm to 6am, unless revoked beforehand.

Who it affects

The curfew affects you if you’re in the high risk area and are under the age of 18 years without a valid reason, between 6pm and 6am

A valid reason can include:

  • working as part of your employment
  • accessing a youth-related service
  • being with a responsible adult
  • having a medical emergency.
  • working as part of your employment
  • accessing a youth-related service
  • being with a responsible adult
  • having a medical emergency.

Police are taking a common sense approach. This means you don’t need documentation if you have a valid reason for being out during curfew.

How it’s enforced

There will be an increased police presence.

Police will speak with you if you’re out during the curfew hours. If necessary, you will be instructed to leave the area or taken to a safe place with your consent.

The police will do this with the support of the Youth Outreach Engagement Team and the Tangentyere Council community patrols.

If you don’t follow directions, you will be cautioned that you’re committing an offence.

Arrests and youth diversion will be considered under the Youth Justice Act 2005 if you continue to not follow police direction.

The union representing the NT Police have raised doubts over whether the Emergency Management Act 2013 (NT) can authorise the implementation of a curfew that is now in place in Alice Springs – see

I cannot give a definitive answer to the question of whether the curfew is legal under this Act, that will be up to a court if anyone challenges it; but I can see the argument.

The Emergency Management Act 2013 (NT)

The Act says, at s 18(2):

The Minister, acting on the advice of the Council, may declare that an emergency situation exists in an area if:

(a) an event has occurred or is reasonably likely to occur; and

(b) the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event.

‘Council’ means the Territory Emergency Management Council established by s 36 of the Act. The term ‘event’ means (s 8):

… an occurrence, whether natural or caused by human acts or omissions, that:

(a) causes or threatens to cause:

(i) loss of, or damage to, property; or

(ii) loss of life or injury or distress to persons; or

(b) in any way endangers the safety of the public.

Section 23 says that during an ‘emergency situation’:

(1) … an authorised officer may do any of the following to carry out emergency operations or recovery operations or to ensure adequate protection of life or property:

(a) direct a person to evacuate from, and remain outside, a specified place in the affected area;

(b) remove or direct another person to remove a person who does not comply with a direction under paragraph (a) from the place;

(c) direct the owner of anything in or near the affected area to remove or secure the thing;

(d) remove or secure, or direct another person to remove or secure, anything in or near the affected area if the owner of the thing:

(i) does not comply with a direction to remove or secure the thing under paragraph (c); or

(ii) cannot be found within a reasonable time to give the owner a direction under paragraph (c);

(e) direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer.

(2) An authorised officer, or a person acting in accordance with the directions of an authorised officer, may use reasonable force to remove a person under subsection (1)(b) if necessary.

A police officer is an authorised officer (s 98(1)(f)). 

Section 4 of the Act says:

This Act does not authorise a person to do, or make preparations to do, any of the following:

(a) engage in armed combat;

(b) put down a riot or other civil disturbance;

(c) end a strike or lockout.

The terms ‘riot’ and ‘civil disturbance’ are not defined.

Discussion

The Minister’s declaration does not identify ‘an event’ that has warranted the declaration.  Compare that to, for example the declaration of a national emergency in response to the 2022 NSW Floods which set in detail the event and the reasons for the declaration (see https://www.legislation.gov.au/F2022L00312/latest/text).  Compare also the various Public Safety Orders made under the Public Health and Wellbeing Act 1988 (Vic) relating to the COVID pandemic (https://www.health.vic.gov.au/covid-19/public-safety-order-2022) which provide some statement of the risk being addressed and why the orders are necessary and the declaration of a state of emergency in NSW in 2019 (NSW Government Gazette, 19 December 2019 https://legacy.legislation.nsw.gov.au/regulations/2019-664.pdf) where the Premier said she was ‘satisfied that an emergency, namely bushfires in various parts of the State, constitutes a significant and widespread danger to life or property …’

We are of course meant to infer that there is lawlessness in Alice Springs but as noted, the actual ‘event’ that is said to warrant the declaration is not identified.  Leaving it to people to infer from the press release is hardly sufficient.  Presumably if the declaration is challenged the Minister will need to produce the advice received from the Council to put the declaration in context but the declaration, on its face, gives no guidance to either the police or the citizenry as to what it is about or why it is needed.

The failure of the NT minister to identify the nature of the emergency and whether paragraphs (a) and/or (b) of the definition of an ‘event’ apply or why the powers under s 23 are required is a significant omission.

If the issue is lawlessness, the question will arise whether it is permitted by s 4. The Criminal Code 1983 (NT) s 63 says:

(1) When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly…

(4) When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot and the persons assembled are said to be riotously assembled.

If young people are gathering on the streets of Alice Springs in order to ‘conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds’ then they commit an offence which may turn into a riot. Presumably the point of the curfew is to prevent the offence which is better than criminal prosecution after the event so there is much to commend it.  Arguably the powers are not being used to ‘put down’ but rather prevent a ‘riot or other civil disturbance’ but it would be an arguable point.

The government website (https://nt.gov.au/emergency/emergencies/alice-springs-emergency-declaration#emergency-declaration) says:

The Northern Territory (NT) Government has declared an emergency situation in Alice Springs. This includes a curfew in the high risk area to enhance the safety of young people in Alice Springs.

The declaration does not include a curfew. The declaration, published on the website, says nothing about the powers that may be used. It is unusual for the government to publish how this emergency declaration is to be enforced. The presence of the declaration empowers police, as authorised officers, to exercise the powers listed in s 23 as they see fit. They can exercise those powers ‘to carry out emergency operations or recovery operations or to ensure adequate protection of life or property’.

One can imagine that during an emergency a fire service or the Territory Emergency Service may want to order an evacuation in order to allow fire fighting operations to continue or to remove people at risk from a flood zone.  One would not expect the government of the day to tell the emergency managers what powers they will exercise.

Given the curfew only applies to those under the age of 18 it may be contrary to anti-discrimination legislation. Not all discrimination is unlawful but discrimination on the basis of age is (Anti-Discrimination Act 1992 (NT) s 19(1)(d); Age Discrimination Act 2004 (Cth)). Society discriminates against people on the basis of their age all the time, people have to meet a particular age to be criminally responsible for their actions, to be able to give effective consent to sexual intercourse, to drive, to vote etc.  Age Discrimination in the NT is not unlawful if it is required or authorised by ‘an Act or regulation of the Territory’ (s 23(a)). The police powers are authorised by s 23 of the Act but there is no specific power to discriminate on age. I can imagine a fire incident controller would want to direct a group of young people who are making the job of the firefighters harder than it needs to be but that would not be directing them to leave because of there age. But I can imagine in a flood or fire there may be an order to evacuate children on the basis that the adults can make their own decisions and may want to ‘stay and defend’ but children are at particular risk. I would infer that s 23 would be broad enough to justify that sort of discrimination where it is necessary for the purposes set out in s 18 . Equally there is nothing to stop the police extending the curfew to everyone if they think that is warranted. Of course we cannot judge what is warranted as we don’t know what ‘event’ triggered the declaration or what is at risk.

The Commonwealth Act (which applies in the NT by virtue of s 10 and the Australian Constitution s 122) says (at s 27):

It is unlawful for a person to discriminate against another person on the ground of the other person’s age:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first – mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to such premises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first – mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

The NT government is intending to restrict the access of young people to the public presmises (eg parks, the streets etc) on the basis of their age alone.  

Conclusion

Naturally the NT government have their own advice. I am not privy to that advice nor to the advice given to the Minister by the Council.

From an administrative law point of view the failure to identify, in the declaration, what event calls for the declaration, and whether the Minister is satisfied that the event causes or threatens to cause loss of, or damage to, property, loss of life or injury or distress to persons or in some way endangers the safety of the public is a major omission. It would be up to a court to decide whether it can consider the advice the Minister has received or whether the declaration has to be judged on its face. On its face it does not disclose that the Minister has considered any of the factors he is required to consider when making the declaration. 

On its face the declaration bears no relationship to the instructions on what the police will do in response to the declaration. The declaration is not limited as to time (though the website says it will expire on 10 April); the declaration does not identify why the powers under s 23 will be used nor how or on what basis it has been decided, in the absence of any particular event, that a curfew for those aged under 18 is a necessary response to the unidentified risk. Insisting that there is a curfew for those under the age of 18 may well be a breach of the Age Discrimination Act 2004 (Cth).  

The declaration says that there is an emergency situation.  It is up to the authorised officers to determine what powers under s 23 are relevant in response to that undefined situation. The failure to set out, either in the declaration or the website, the circumstances leading to the declaration give the police, and the citizens, no guidance on what powers under s 23 are relevant to the response to the emergency situation and would give a court little opportunity to assess whether the measures set out on the website are an appropriate response for the purpose of responding to the emergency.

I don’t pretend to have a definitive answer to the question ‘is the declaration unlawful?’  I can see the issue and can understand the concerns raised. If nothing else the failure to address the matters required by s 18 that is setting out what ‘event has occurred or is reasonably likely to occur’ and how or why ‘the Minister is satisfied that the special powers under section 23 are necessary in the area for effective emergency and recovery operations in response to the event’ is very bad form. There would be an arguable case that the minister has not considered the factors required by s 18(2) and that the declaration is specifically prohibited by s 4(b).

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.