A correspondent has written and said:

My question pertains to the difference between declaring a ‘state of emergency’ and a ‘state of (or area of) disaster’. In examining the wording of state legislation, the choices states make when facing a natural disaster in terms of a ‘declaration’ are inconsistent and variable. For instance in the NSW EMPLAN it notes when discussing the 1989 Act that ‘other New South Wales Acts provide for the declaration of a ‘State of Emergency’. These should not be confused with a declaration under the State Emergency & Rescue Management Act 1989’.

While ‘a natural disaster is defined as a serious disruption to a community or region caused by the impact of a naturally occurring rapid onset event that threatens or causes death, injury or damage to property or the environment and which requires significant and coordinated multi-agency and community response’, as you have noted, this has rarely precipitated a declaration of a ‘state of emergency’ despite all the states and territories having legislation provisions for declaring a state of emergency or disaster (see https://emergencylaw.wordpress.com/?s=state+of+emergency).

Therefore I am finding obscurity surrounding the difference between a declaration of a state of emergency and a state of disaster, the powers surrounding both, and in particular which acts would trigger the NDRRA (Natural Disaster Relief and Recovery Arrangements). What complicates the matter is that each state has its own particular approach within the legislation, with both explicit and implicit meanings. NSW only points to a state of emergency without explaining when a declaration of disaster may be employed. SA has 3 emergency levels according to the degree of the emergency and in NT there are 3 graded categories of’ emergency situation’, ‘a state of emergency’ or ‘a state of disaster’. Victoria refers to a ‘declaration of disaster’ with the implicit meaning of an emergency but has provisions within the legislation to declare a location ‘an area of emergency’.

It appears that a ‘state of emergency’ in its many interpolations is the highest level in all states and produces extra-ordinary powers but is not always called upon when there are disasters.

Thus, I am trying to ascertain then is what the hierarchy of ‘declarations’ is within each state and territory, what powers each of them carries, what each state practices in regard to declaring a ‘state of emergency’ or ‘state of disaster’ or other, and in particular their relation to the NDRRA i.e. from a state perspective if there is any particular declaration level/legislation which would trigger a state request to the Commonwealth for an NDRRA activation.
Any assistance in this would be greatly appreciated.

That’s an interesting question and, as quite rightly noted, there are differences in each jurisdiction. Primarily it should be noted that the power to declare an emergency or disaster, and by doing so trigger emergency powers, must be in legislation. If it’s not in the Act it can’t be done, or if it is done, it doesn’t actually mean anything.

Attached to this post is a table that appears at the back of my book Emergency Law (4th ed, 2013, The Federation Press). This table outlines the various terms and the powers that are triggered, and gives references to the legislation (see Table of Emergency powers).

Some states have a hierarchy of declarations, for example in the ACT there can be ‘state of alert’ or a ‘state of emergency’. A state of alert is declared by the Minister whereas a ‘state of emergency’ is declared by the Chief Minister. There are no clear criteria of when one or other is appropriate but different levels of emergency powers arise depending on the event (Emergencies Act 2004 (ACT) ss 151 to 160A).

New South Wales, on the other hand, has only a single level of declaration, that is a ‘state of emergency’ (State Emergency and Rescue Management Act 1989 (NSW) ss 32A-41). So to return to the question, there is no such thing as a ‘state of disaster’ in New South Wales.

Apart from these state wide declarations, most states allow the police or hazard management agencies (whatever they are called in each state) to declare a disaster or emergency area, again to trigger special emergency powers to be used to control the hazard in that area (see for example Public Safety Preservation 1986 (Qld); Emergency Management Act 2005 (WA) ss 50-55; State Emergency and Rescue Management Act 1989 (NSW) s 60L). One has to look at each Act to determine when the declaration can be made and what powers follow.

As the NSW EMPlan says (at [823]) “It should be noted that other New South Wales Acts provide for the declaration of a ‘State of Emergency’. These should not be confused with a declaration under the State Emergency & Rescue Management Act 1989.” Those Acts include the Essential Services Act 1988, the Dams Safety Act 1978, the Energy and Utilities Administration Act 1987 and the Essential Services Act 1988. As noted each of those Acts have their own definition of what constitutes an emergency, who may make the declaration and what effect that declaration has.

Let me return to the specific questions:

Q: ‘… what the hierarchy of ‘declarations’ is within each state and territory’?
A: There is no consistent answer to that question; it varies from state to state and not all of them have a hierarchy.

Q: ‘what powers each of them carries’?
A: Again that varies with each jurisdiction; the table attached will give some guidance on that mater.

Q: What [is the] relation to the NDRRA i.e. from a state perspective if there is any particular declaration level/legislation which would trigger a state request to the Commonwealth for an NDRRA activation.
A: The relationship with the NDRRA is … none at all. The NDRRA is a cooperative state/federal scheme. The NDRRA is not set out in legislation but in a determination made by the Minister (see http://www.em.gov.au/Fundinginitiatives/Naturaldisasterreliefandrecoveryarrangements/Pages/default.aspx for the details). Under those arrangements Commonwealth assistance is directed to “state measures that complement other strategies in relation to natural disasters, such as insurance and disaster mitigation planning and implementation.” (Natural Disaster Relief and Recovery Arrangements Determination, 2012 [1.1.2]). Payments are made to the states once the states have incurred expenditure on natural disaster relief and recovery in excess of prescribed thresholds (Natural Disaster Relief and Recovery Arrangements Determination, 2012 [1.2]). The Commonwealth pays 50% after state payments exceed the first threshold (currently $140m for NSW) and 75% when state expenditure exceeds the second threshold (currently $245m for NSW – see http://www.disasterassist.gov.au/NDRRADetermination/Pages/default.aspx).

Paragraph [4.2] of the current determination says:

When a natural disaster occurs and the relevant state knows, or expects, the disaster to be an eligible disaster the state must notify the Secretary of that fact as soon as practicable. The notification must be in the form set out in Attachment A (Notification Form).

Accordingly when a state declares a ‘natural disaster’ they are signalling to the Commonwealth that this is an event that is expected to trigger the NDRRA. It has no relationship, whatsoever, to a declaration of a state of alert, emergency or disaster under emergency management legislation.

For a much more complete discussion of the various alert/emergency/disaster declarations see my book Emergency Law (4th ed, 2013, The Federation Press).

I hope that helps.

Michael Eburn
22 January 2014

Table of Emergency powers