According to a police media release ‘At 2:30pm [on Tuesday 6 March 2012] the NSW Premier confirmed a State of Emergency for Wagga Wagga and surrounding towns as a result of the floods’.

A declaration of a state of emergency is made under the State Emergency and Rescue Management Act 1989 (NSW) and needs to be distinguished from a declaration that an area is a natural disaster area.

A declaration that an area is an area of natural disaster is made for the purposes of the National Disaster Relief and Recovery Arrangements (or NDRRA).  Under those arrangements, when a State or Territory spends more than a pre-set threshold on recovery from natural disasters, the Commonwealth government steps in to meet. It is a condition of this scheme that a State or Territory must notify the Commonwealth when a disaster occurs (see National Disaster Relief and Recovery Arrangements 2011 Determination, [4.2]).  The formula for calculating Commonwealth assistance is complicated but in simple terms the Commonwealth pays 50-75% of the costs above the state and territory threshold amounts (see National Disaster Relief and Recovery Arrangements 2011 Determination, [5.8]).

Given the recent flood event, many areas of NSW have been declared a natural disaster area. The step of declaring a state of emergency is however a new and interesting development.

All the states and territories have legislation provisions for declaring a state of emergency or disaster but these are rarely used.   I am aware of only two prior instances where this sort of emergency legislation has been called upon:

  1. On 18 January 2003 bushfires burned into urban Canberra.  A declaration of a state of emergency was made at 2.45pm, just 20 minutes before the fires burned into Duffy (The Canberra Firestorm: Inquests and inquiry into Four Deaths and Four Fires between 8 and 18 January 2003, 2006; Vol I pp 346 and 355); and
  2. Disaster declarations were also made during the 2011 Queensland floods (Three Quarters of Queensland Disaster Declared).  

Despite the intensity of the fires, there was no consideration of declaring a State of Disaster (under the Emergency Management Act 1986 (Vic)) during the Black Saturday bushfires of 2009 (2009 Victorian Bushfires Royal Commission, Volume II, Part I, p 86-87).

One of the concerns in making these sorts of declarations is the shift in authority.  During the Canberra fires the concern was that once a declaration was made under the Emergency Management Act 1999 (ACT) (as it then was; that Act has been repealed, the current Act is the Emergencies Act 2004 (ACT)) control of the emergency would shift from the fire service, to the police.  Given the emergency was a massive fire that seemed inappropriate.  Arrangements were made for the Chief Police Officer to execute a delegation appointing the Chief Fire Officer as his alternate emergency controller so that when the declaration was made, control could be effectively retained by the fire service, but the police would then have extra powers to order evacuation.  I am unaware of any case, however, where those powers were used.

In the Black Saturday fires the Royal Commission reported that witnesses ‘all expressed the view that declaration of a state of disaster was not necessary since the additional powers conferred d by such a declaration were not required’ (p 86).  The Commission thought that was a narrow view of the benefit of such a declaration.  They said:

The Commission considers that declaring a state of disaster would offer benefits beyond the grant of additional powers. First, it would provide symbolic recognition of the gravity of a situation… Second, it would place the State’s political leaders firmly in charge of the emergency, reassuring the public that their government had the situation in hand and facilitating rapid mobilisation of Cabinet and high-level government attention if required. (p 86).

A declaration of a state of emergency under the State Emergency and Rescue Management Act 1989 (NSW) may be made under s 33(1):

If the Premier is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales, the Premier may, by order in writing, declare that a state of emergency exists in the whole, or in any specified part or parts, of New South Wales in relation to that emergency.

Once the declaration is made, s 36 provides that the Minister:

(1)  …is responsible for controlling and co-ordinating the activities of such government agencies, and the allocation of such available resources of the Government, as the Minister considers necessary or desirable for responding to the emergency.

(2) For that purpose, the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function.

(3) If a direction is given to a government agency under this section:

(a) the government agency must comply with the direction, and

(b) the direction prevails over anything to the contrary in any Act or law, except the Essential Services Act 1988 .

These are broad ranging powers.  Government departments act under their legislation and under the direction and control of their particular Minister.  This Act gives the overall job of coordinating government to the Minister for Police and Emergency Services and he or she can direct government departments on how they will operate regardless of their normal operating procedures and processes.  It should be noted that the State Emergency Service, the Rural Fire Service and the NSW Police are all government agencies (see State Emergency and Rescue Management Act 1989 (NSW) s 3 and Public Sector and Employment Management Act 2002 (NSW)) and so are subject to the direct control of the Minister.  In that sense the declaration does what the Royal Commission thought it would do, it places ‘the State’s political leaders firmly in charge of the emergency’.

The Minister is also granted the power to order evacuations and may use force to ensure that the evacuation orders are complied with (State Emergency and Rescue Management Act 1989 (NSW) s 37).  Of course the Minister is not expected to, himself, enforce evacuations, but he can give directions to emergency services officers to exercise that power.

An emergency services officer is:

(a)        a police officer,

(b)        an officer of New South Wales Fire Brigades of or above the position of station commander,

(c)        an officer of the State Emergency Service of or above the position of unit controller,

(d)       a member of a rural fire brigade of or above the position of deputy captain,

(e)        a District Emergency Management Officer,

(f)        a member of the Ambulance Service of NSW of or above the rank of station officer.

The minister is also given other emergency powers including the power to direct an emergency services officer, or authorise an emergency services officer to direct:

(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,

(c)        the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in an emergency area or any part of an emergency area,

(d)       the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(e)        the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(f)        the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

It is ofen suggested that a declaration is required to obtain those powers (and see the commentary on the 2003 Canberra fires inquest, and the 2009 Royal Commission, above) but in fact those powers exist in any event.

In New South Wales the State Emergency Service is the lead or combat agency for responding to emergencies created by floods and storms.  The Commissioner of the SES has ‘overall control of operations’ (State Emergency Services Act 1989 (NSW) s 20) and the Commissioner has the power to evacuate areas including the power to use force to achieved that objective (s 22) and to take other safety measures (s 22A; see also s 22E).

The Commissioner can appoint emergency officers to exercise various powers under the Act.  The Act also refers to senior emergency officers.  A senior emergency officer is the same as an emergency services officer under the State Emergency and Rescue Management Act 1989 (NSW) s 32A (compare s  32A with the State Emergency Services Act 1989 (NSW) s 18A).

The effect of the disaster declaration is to transfer ultimate control from the Commissioner to the Minister.  It is unclear whether the Commissioner retains the powers under the SES Act or whether those powers are vested solely in the Minister.  Senior emergency officers/emergency services officers can exercise various emergencies powers under both Acts.  The matter has not been tested but it would be my view, that the powers granted to the Minister are additional to, and not instead of, the powers vested in the Commissioner.  Both, then can exercise their powers but the Commissioner is subject to the direction of the Minister (State Emergency and Rescue Management Act 1989 (NSW) s 36).

It now remains to be seen what effect the declaration has and whether it achieves anything other than ‘symbolic recognition of the gravity of a situation’.

Michael Eburn

7 March 2012.