This Act became law on 3 December 2013 but has not yet commenced operation. It will come into force on 1 September 2014 if it is not ‘proclaimed’ to commence before that date (s 2). Notwithstanding it is not yet in operation, I thought it might be helpful to give some commentary on the Act.
The Act amends, but does not replace, the Emergency Management Act 1986 (Vic) so Victorians will have the confusing situation of having two Acts, both called the Emergency Management Act, in force at the same time.
Once the new Act is in operation, the 1986 Act will deal with the emergency management responsibilities of local councils; declarations of a ‘state of disaster’; compensation of registered emergency workers; declaration of an ‘emergency area’ by police and the powers that they may then exercise; offences in relation to obstructing an emergency worker or failing to comply with directions in an emergency area, and legal protection for volunteer emergency workers.
Provisions relating to the development of the emergency response plan and the recovery plan, as well as setting operational standards are removed from the 1986 Act and will now be governed by the 2013 Act.
When the new Act comes into force, the office of the Fire Services Commissioner (established following the 2009 Victorian Bushfires Royal Commission) is abolished as is the office of the Emergency Services Commissioner established under the 1986 Act. These are replaced by a new Emergency Management Commissioner and an Inspector-General for Emergency Management.
The Act identifies ‘class 1’ and ‘class 2’ emergencies. A class 1 emergency is a major fire or any major emergency where the MFB, CFA or Victoria SES are the designated control agency. All other emergencies are ‘class 2’ (s 3).
“major emergency “means—
(a) a large or complex emergency (however caused) which—
(i) has the potential to cause or is causing loss of life and extensive damage to property, infrastructure or the environment; or
(ii) has the potential to have or is having significant adverse consequences for the Victorian community or a part of the Victorian community; or
(iii) requires the involvement of 2 or more agencies to respond to the emergency; or
(b) a Class 1 emergency; or
(c) a Class 2 emergency;
If a ‘class 1’ emergency is ‘any other major emergency…’ and a major emergency is any ‘class 1 emergency’ then the definitions are circular and unhelpful. It is not at all clear what subparagphs (b) and (c) in the definition of ‘major emergency’ are meant to achieve.
“major fire” means a large or complex fire (however caused) which—
(a) has the potential to cause or is causing loss of life and extensive damage to property, infrastructure or the environment; or
(b) has the potential to have or is having significant adverse consequences for the Victorian community or a part of the Victorian community; or
(c) requires the involvement of 2 or more fire services agencies to suppress the fire; or
(d) will, if not suppressed, burn for more than one day;
Paragraph (d) is problematic, as many fires, if not suppressed, will burn for more than a day, but can be suppressed easily and quickly. It seems that paragraph (d) would be better phrased if it said ‘cannot be suppressed in less than one day’.
Putting aside those definitional issues, the Emergency Management Commissioner replaces the Fire Services Commissioner (s 24) and is responsible for, inter alia, coordinating response agencies, ensuring control arrangements are in place, appointing a ‘state response controller’ to a class 1 emergency and keeping the Minister informed during an emergency (even if the Minister is at the tennis – ‘Kim Wells admits to tennis error as fires raged’ (http://www.theage.com.au/victoria/kim-wells-admits-to-tennis-error-as-fires-raged-20140123-31aia.html#ixzz2rGfm7YXL)) (s 32).
During a class 1 emergency, the Commissioner is to appoint a State Response Controller and the Commissioner may give directions to that controller to ensure that the response is being exercised effectively. This is quite a change for Victoria. Under the (current) 1986 Act it is the Chief Commissioner of Police who is the State Emergency Response Coordinator. Under the current Act the State Emergency Response Coordinator can direct even the Fire Services Commissioner (s 16B) so it is the case that, despite anything to the contrary in the relevant emergency plan, it is the Victoria Police who are ultimately responsible for emergency response. The model in the new Act transfers that responsibility to the Emergency Management Commissioner who must be a person who ‘has appropriate management, professional, technical and operational expertise in emergency management’ (s 25).
Community warnings was a key focus of the 2009 Victorian Bushfires Royal Commission. Following the Commission’s final report, a statutory obligation to issue warnings was imposed (Fire Services Commissioner Act 2010 (Vic) s 24). That obligation will be continued under the 2013 Act (ss 42 and 43).
The Emergency Management Commissioner will also be responsible for
1. ‘consequence management’ that is ‘the coordination of agencies … which are responsible for managing or regulating services or infrastructure which is, or may be, affected by a major emergency’ in order to ‘minimise the adverse consequences to users of services or infrastructure caused by the interruption to the services or infrastructure as a consequence of the major emergency’; and
2. recovery coordination.
Critically that appears to ensure that one officer, the Emergency Management Commissioner is responsible for the entire spread of actions from Response and Recovery and that should be less disjointed than the current arrangements of having a State Emergency Response Coordinator and a State Recovery Coordinator.
Finally the Commissioner is to develop operational standards and operating procedures for the emergency response agencies (ss 48 and 50).
The Inspector General for Emergency Management replaces the current Emergency Services Commissioner in monitoring the performance of the emergency management agencies and arrangements (s 64).
The 2013 Act will also change the institutions responsible for emergency management planning in Victoria. The Emergency Management Council will be abolished and in its place there will be a State Crisis and Resilience Council. This Council is to be ‘the peak crisis and emergency management advisory body in Victoria responsible for providing advice to the Minister in relation to— (a) whole of government policy and strategy for emergency management in Victoria; and (b) the implementation of that policy and strategy’ (s 7). The Council is made up of heads of each government department as well as the Chief Commissioner of Police, the Emergency Management Commissioner and the CEO of Emergency Management Victoria (discussed below).
A corporate (that is legal) entity known as Emergency Management Victoria (EMV) will be established. EMV is, inter alia ‘to act as the agency responsible for the coordination of the development of the whole of government policy for emergency management in Victoria’ and ‘provide policy advice to the Minister in relation to emergency management’ (s 17).
Finally the new Act has provisions for the creation of the state emergency response plan and a state emergency recovery plan. The minister is responsible for preparing these plans in consultation with the State Crisis and Resilience Council (ss 53 and 59).
When this Act commences there will be amendments to other Acts in particular to the Country Fire Authority Act 1958 (Vic); the Metropolitan Fire Brigades Act 1958 (Vic) and the Victoria State Emergency Service Act 2005 (Vic) to bring them into line. In particular the objectives of each of those organisations will be amended to require them to ‘contribute to a whole of sector approach to emergency management [and] promote a culture within the emergency management sector of community focus, interoperability and public value.’ These organisations will also be required to ‘collaborate and consult with Emergency Management Victoria’ and use their best endeavours, and report on those endeavours, to meet operational standards set by the Emergency Management Commissioner.
Not surprisingly the 2013 Act does not completely rewrite emergency management in Victoria, rather it builds on and develops what has gone before. Victoria had an Emergency Services Commissioner and then, after the 2009 bushfires, a Fire Services Commissioner and, as an outsider, the difference between them had not been well articulated and the creation of the Fire Services Commissioner had significantly reshaped the Emergency Services Commissioner’s role. Creating now the Emergency Management Commissioner and the Inspector General for Emergency Management appears to be an effective attempt to ‘tidy up’ and clarify the various position.
The creation of the Emergency Management Commissioner and empowering the Commissioner to appoint the State Response Controller to a particular event, rather than having the Chief Commissioner of Police as the standing State Response Controller would appear to be an effective way to ensure that emergency management professionals, not the police, manage emergencies. It also clarifies reporting responsibilities that in my view (and in submissions I made during the review of the 1986 Act) were confused between the Chief Commissioner of Police, the Fire Services Commissioner and the heads of various agencies.
What difference the Act makes to the culture and effectiveness of emergency management in Victoria remains to be seen but it does seem that it will ensure clearer lines of authority and responsibility which can only be a good thing.