This question comes from an academic colleague, Dr Christine Eriksen, Research Fellow at the Australian Centre for Cultural Environmental Research and the Centre for Environmental Risk Management of Bushfires at the University of
Wollongong; you can see details of her research at http://socialsciences.uow.edu.au/ausccer/people/UOW073400.html.
Dr Eriksen wrote:
I am writing to seek your advice on the legalities of bushfire evacuations. In the aftermath of the recent State Mine Fire in the Blue Mountains, my team at UOW revisited interview participants who were initially interviewed mid-2013 on their preparedness for bushfire. The State Mine Fire provided a unique opportunity to investigate if their preparations withstood the attack. During one interview, a participant vented his frustration with police orders to evacuate his property, as he was well-prepared to face the fire. He candidly asked me if legally he had to follow such an order when the ‘Prepare. Act. Survive.’ policy guides people on how to prepare their property in order to stay and defend it. I promised to get back to him with an answer, as I needed to get my facts straight first.
I have always been under the impression that Australia does not have a ‘mandatory evacuation’ policy in place. Is this correct? Does the situation changed when a State of Emergency is declared? Referring to section 37 (as well as 37A-38) of the State Emergency and Rescue Management Act 1989, the Act can ‘…authorise an emergency services officer to direct a person to do any or all of the following: a) to leave any particular premises and to move out of an emergency area or any part of an emergency area…’. The key seems to be the word ‘direct’: does ‘direct’ equal mandatory? Is it ‘advice’ or an ‘order’
The policy adopted by the fire authorities has been against forced evacuation. In 2003 the Australian Federal Police sought a declaration of a State of Emergency under the (then) Emergencies Act 1999 (ACT).
Commander Newton believed that a declared state of emergency might prove necessary in order to empower police to forcibly evacuate people from situations in which the police believed the person’s life was at risk. (Maria Doogan, ‘The Canberra Fire Storm: Inquests and Inquiry in Four Deaths and Four Fires between 8 and 18 January 2003’, ACT Coroners Court, p 343).
The Executive Director of the Emergency Services Bureau, Mike Castle,
… said that he resisted Commander Newton’s request for his support in declaring a state of emergency because forced evacuations were at odds with best practice as developed by the Australian Fire Authorities Council’ (Doogan, p 344).
Ultimately a declaration was made but I have not seen evidence that there were any compulsory evacuations.
The issue of the AFAC policy and evacuations was considered by the 2009 Victorian Bushfires Royal Commission. The Commission (Final Report, Vol II, ¶1.2) said:
Fundamental to the stay or go policy was the idea that people should decide for themselves in advance of a bushfire whether they will stay to actively defend a well-prepared home or leave early to avoid any confrontation with the fire. People were advised to make the choice in the light of individual circumstances, without being directed by fire agencies, and to detail their intentions in a ‘fire plan’ to be activated on days of high bushfire risk. The policy did not tell people they risked death and serious injury if they stayed to defend.
As a result of criticism of the policy, the Royal Commission made recommended that:
The State introduce a comprehensive approach to evacuation, so that this option is planned, considered and implemented when it is likely to offer a higher level of protection than other contingency options.
The approach should:
■ encourage individuals—especially vulnerable people—to relocate early
■ include consideration of plans for assisted evacuation of vulnerable people
■ recommend ‘emergency evacuation’. (Teague et al., 2009 Victorian Bushfires Royal Commission, Recommendation 5).
The Royal Commission took the view that the paramount consideration in bushfire policy must be the perseveration of human life (Final Report, Vol I, xxvii-xxviii). The Royal Commission’s recommendations, and approach, have been adopted across Australia. Today the ‘Bushfires and Community Safety Policy’ (Version 5.0, November 2012) adopted by the Australian fire agencies through their peak body, the Australian Fire and Emergency Services Authorities Council (AFAC) still focuses on personal decision making but does recognise that fire agencies need to:
Act on the understanding that people within the community who, for a range of reasons, are not able to prepare or respond appropriately, may need assistance to relocate before a bushfire threatens their district or property. (¶4.3.13)
Incident Controllers need to ‘make decisions about whether to recommend an evacuation to the general public or relevant authority’ (¶4.3.14). The policy still refers to ‘recommend’ rather than ‘require’.
The current policy was reflected in the response to the West Australian Perth Hills Bushfire. The Special Inquiry into those fires, led by former Australian Federal Police Commissioner Mick Keelty, was concerned with the application of the post 2009 policy and raised the very issues raised by your respondent. In the Perth Hills fires people were evacuated and no lives were lost, but many homes were. The final report said:
The Special Inquiry does not dispute the priority given to protecting life, however, it is concerned that the process of widespread evacuation may be at odds with the focus on educating people about risks and empowering individuals and communities to exercise choice and take responsibility, as set out in the National Strategy for Disaster Resilience. The Strategy has an explicit focus on building disaster resilient communities, noting that in these communities:
People understand the risks that may affect them and others in the community. They understand the risks assessed around Australia, particularly those in their local area. They have comprehensive local information about hazards and risks, including who is exposed and who is most vulnerable. They take action to prepare for disasters and are adaptive and flexible to respond appropriately during emergencies.
The National Strategy for Disaster Resilience further defines a disaster resilient community as one where people have taken steps to anticipate disasters and to protect themselves.
The Special Inquiry spoke with residents who questioned the rationale for preparing their own bushfire plan setting out what they will do during a fire event if it is likely they will be evacuated anyway. The Special Inquiry was concerned that the widespread use of evacuation as a strategy to protect life has the potential to disempower communities, rather than building resilience. Residents could choose not to engage in community level preparations, not consider what action they would take during a bushfire, or not take adequate steps to protect their properties, if they believe the default response to an emergency is to evacuate. (Mick Keelty, ‘A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review’ p 42).
The conclusion is that there is not a policy of mandatory evacuation. The AFAC policy is still that people need to make their own decision and prepare for bushfires but they need to be informed that the safest place to be, during a bushfire, is somewhere else and that in some circumstances homes cannot be saved and lives will be lost. The fire agencies need to make arrangements for people who cannot evacuate or for whom their ‘plan A’ (whether to evacuate or stay and defend) fails.
Although there is no clear policy in favour of mandatory evacuations, the police and emergency services do have the power to require to people to evacuate. Pursuant to the State Emergency and Rescue Management Act 1989 (NSW) s 60L:
A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, a person to do any or all of the following:
(a) to leave any particular premises and to move outside the danger area,
(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the danger area,
(c) not to enter the danger area.
Police may use reasonable force to ensure compliance with their direction (s 60L(2)). The exercise of this power does not require a state of emergency to have been declared. More problematically, because this power is a power vested in the police, they may exercise it when they think it is necessary, there is no need for them to discuss their decision or seek approval from the relevant incident controller.
Where a State of Emergency is declared, various emergency service officers may be given a similar power (s 37) including the power to use reasonable force to ensure compliance (s 37(2)). During the 2013 Blue Mountains fires a State of Emergency was declared. The Minister’s powers were delegated to the Commissioner of the Rural Fire Service who authorised some emergency service officers to direct evacuations (see ‘Order declaring state of emergency in respect of bush fires’, 20 October 2013 and Shane Fitzsimmons’, ‘State of Emergency; Authorisation of Powers’). (Similar powers may also be given to emergency service officers by the Commissioner of the State Emergency Service when managing a response to a flood, storm or other emergency for which the SES is the ‘combat agency’ (see State Emergency Service Act 1989 (NSW) s 22)).
There is no specific criminal offence for failing to comply with the order, but there is a general offence to obstruct the Minister or a person acting under the authority of the Minister during a declared State of Emergency (State Emergency and Rescue Management Act 1989 (NSW) s 40; see also State Emergency Service Act 1989 (NSW) s 24). The maximum penalty is a fine of $5500 and/or 2 years gaol. It is unlikely that this could be applied to someone who simply refused to leave his or her own home.
It follows that police, and during a State of Emergency authorised emergency services officers, can require people to evacuate – that is a compulsory order but the extent of the compulsion is that the officer may use reasonable force to ensure compliance; for example a police officer may chose to use force to evacuate a person from a flat when then entire block needs to be evacuated due to a fire in another apartment or to forcibly remove children from a home despite objection from their parents, The use of the power in a bushfire such as the State Mine fire is, however, virtually unimaginable. The risk to officers and the diversion of resources that can be used to warn others means that the chances of police or emergency services deploying resources to forcibly evacuate one person, during an extreme bushfire, must be virtually nil.
Making a compulsory order would, however, provide protection for individual officers who, for whatever reason, believe that taking action is justified and possible and would also be relevant for public institutions, for example nursing homes would be expected to comply or face serious legal implications if they do not evacuate when ordered to do so and residents are killed or injured and workplaces would be expected to release their workers if police direct the workplace to be evacuated. The issue of an evacuation order may also be relevant and give moral strength to the emergency services who may then refuse to re-enter the danger zone to rescue someone who has chosen not to evacuate (as was seen during Cyclone Yasi when Premier Anna Bligh announced that people in the impact area could not expect assistance after they had been ordered to evacuate).
In summary, there is not a policy of mandatory evacuation but the police and emergency services do have the power to order an evacuation if required. Where an order is made under ss 37 or 60L it is a ‘mandatory’ order but during fires such as the State Mine fire, it will, for all practical purposes, be unenforceable.
10 January 2014