This question relates to the Emergencies Act 2004 (ACT). My correspondent raises a number of questions and issues and I’ll deal with them in turn. The correspondence starts:

I was wondering if you could offer me some guidance in relation to an issue that arises under the ACT Emergencies Act.

An ESA internal plan has recently been released called the Elevated Fire Danger Plan (EFDP). The EFDP is identified as a supporting plan under the ACT Emergency Plan (http://www.legislation.act.gov.au/ni/2012-225/default.asp) and it is noted in the plan that it gains its legislative basis from the Emergency Plan.

My first question is that I believe that the EFDP is in effect a commissioners guideline, and should it be notified as required under s11 of the Emergencies Act. Guidelines in relation to bush and grass fires have been notified and are the Emergencies (Concept of operations for bush and grass fires in the Australian Capital Territory) Commissioner’s Guidelines 2012 (http://www.legislation.act.gov.au/ni/2012-400/current/pdf/2012-400.pdf) and the Built up area and bushfire abatement zone declaration (http://www.legislation.act.gov.au/ni/2012-450/current/pdf/2012-450.pdf).

Under the Emergencies Act 2004 (ACT) s 147, the Commissioner of the Emergency Services Agency is to prepare a draft emergency plan that is, in turn, approved by the Minister. There is no specific provision in the Act for any ‘sub plan’ but s 148 says:

The emergency plan must include a plan for an emergency if there is a reasonable possibility of the emergency happening in the ACT (whether or not an emergency of that kind has happened in the ACT or had an effect in the ACT).

The Emergencies (Emergency Plan) 2012 (No. 1) says (at 3.4.2)

Section 148 of the Act provides that the Plan must include a plan for an emergency if there is a reasonable possibility of the emergency happening in the ACT. Sub Plans form part of this Plan, however will be prepared separately in order to establish the appropriate level of detail to appropriately address emergency management requirements for the particular hazard or supporting function.

That’s a reasonable interpretation. Section 148 does not use the term ‘sub plan’ but it does say the emergency plan must include a plan for’ not ‘the emergency plan must plan for…’. The Act does not say what the plan must or must not look like, so having the plan in ‘parts’ and calling them sub plans is not inconsistent with the Act. I think we can infer that there is no issue with having ‘sub plans’ for the various hazards.

The Emergency plan goes on to say [3.4.2]:

Sub Plans may be prepared when the management arrangements necessary to deal with the effects of the hazard or the supporting function:
 differ from the routine operational and coordination arrangements of agencies, including long running incidents;
 require specific measures to reduce potential impacts on life, property or the environment of the ACT;
 require the application of the resources and capability of multiple ACT Agencies or cross jurisdictional resources; or
 where otherwise identified in this Plan.
Annexure D identifies the relationship of this Plan, the Hazard Specific Sub Plans and Supporting Sub Plans. As required, additional sub plans may be prepared to address specific hazard or support

Annexure D lists the various plans and includes the Elevated Fire Danger Plan.

Commissioner’s guidelines are provided for in the Emergencies Act 2004 (ACT) s 11. That section says:

(1) The commissioner may make guidelines for the strategic operation of each of the emergency services (the commissioner’s guidelines ).
(2) The commissioner’s guidelines are a notifiable instrument except to the extent that the commissioner considers it is in the public interest that it not be notifiable.

Notifiable instruments must be published on the ACT legislation website (http://www.legislation.act.gov.au/). My correspondent has given examples of published guidelines. My correspondent has been unable to give me a copy of the Elevated Fire Danger Plan but has summarized it’s effect, below. A commissioner’s guideline relates to the ‘strategic operation of each of the emergency services’ whereas a sub plan relates to the response to a hazard. Based only on what I’m told (below) if this plan relates to the hazard of fires on day of elevated fire danger, rather than how the RFS will organize it’s business, then it’s not inconsistent with anything to call it a plan. Further if the Minister, when making the Emergency Plan called for the creation of a Elevated Fire Danger plan, then that’s what’s required.

There is not going to be a definitive answer here. The Commissioner can make guidelines, the Minister can make the plan. Response to various things could be put in one or the other so they have a choice. If after consultation it’s been decided to put the plan for the response on elevated fire danger days into a sub plan there’s nothing unlawful in that.

The next issue is:

The plan designates the RFS as the lead agency for activation and preparation of arrangements under the plan. The plan goes on to state that on a day when the plan is activated, (Severe, extreme or catastrophic days and a total fire ban) then a pre emptive Incident Management Team is to be established and an Incident Controller appointed.

If an Incident Controller is appointed and there are no fires occurring, what powers and functions can that person exercise under the Emergencies Act? My reading of the Act is that the only way to exercise any powers or functions under the Act pre-emptively is under s150A when an emergency controller is appointed and the Chief Minister is satisfied that an emergency is likely to happen. Would this be correct?

An emergency is ‘an actual or imminent event that requires a significant and coordinated response’ (Emergencies Act 2004 (ACT) s 4). An emergency controller for the ACT can be appointed. Section 150 says:

… if the Chief Minister is satisfied that––
(a) an emergency has happened, is happening or is likely to happen; but
(b) it is not necessary to declare a state of emergency.

Then the ‘Chief Minister may appoint a person to be the emergency controller for the emergency’ which includes something that ‘is likely to happen’.

As for an incident controller and we can infer that is an incident controller as intended by the Australian Inter-agency Incident Management System or AIIMS. There is no legislative provision for the position of ‘incident controller’ it’s an administrative position, effectively the lead agency nominating who is to be in charge of operations. There can be no barrier to appointing an incident controller before the event. He or she may have no powers to exercise but he or she doesn’t need powers to start preparing for the response should an event occur. Whether a fire on a severe or high fire day is ‘imminent’ is not the issue. The powers of the various chief officers (s 34) are not predicated on their ‘being’ an emergency and it is only sensible that they would nominate who is to take charge should an emergency occur and ‘stand up’ the IMT before the event.

Appointing an IMT does not require any particular power nor does it require the IMT (including the incident controller) to exercise any particular power prior to an actual fire. I note that the Emergencies (Concept of operations for bush and grass fires in the Australian Capital Territory) Commissioner’s Guidelines 2012 provides for pre-formed IMTs to do such things as monitor the weather and provide information to the Commissioner and Minister, none of which requires, or is the exercise of any specific power.

The next issue is that when a fire actually occurs we have been verbally advised that regardless of where a fire may start, and regardless of the type of fire, the RFS will be incident controller. I feel that this contravenes not only the notifiable instruments identified above, but the provisions of the Emergencies Act. Would this be a fair assumption? I also feel that this is in contravention of s 8A(3) of the Emergencies Act which precludes the commissioner from directing a chief officer from undertaking an operation in a particular way.

The particular concern I have is that the majority of fires we have on these days are level 1 as defined by the Bushfire concept of operations, and a plan and verbal direction given are inconsistent with the provisions of the Act and a commissioners guideline.

Section 8A(2) says “The commissioner may direct a chief officer to undertake response or recovery operations in relation to the emergency.” If the Commissioner directs the Chief Officer (RFS) to undertake response operations, then that is what is to happen. The Commissioner cannot tell the Chief Officer (RFS) how to exercise his authority, but he may certainly direct him, and the other Chief Officers, that the RFS is to ‘undertake response operations’. I’m not sure how such action would be inconsistent with the Emergencies (Concept of operations for bush and grass fires in the Australian Capital Territory) Commissioner’s Guidelines 2012 which appear to envisage an all agencies response; for example ‘First response to all bush and grass fires in the ACT will be by the nearest available most appropriate resource, irrespective of jurisdiction or Service.’ There is provision that fires in the built up area will be managed by ACT Fire and Rescue and fires in the Rural Zone by the RFS. Fires in the Bushfire Abatement Zone may be managed by either service. It may be odd if a house fire in the heart of Belconnen was to be managed by the RFS because it was day of catastrophic fire weather, and that could be inconsisent with the Commissioner’s guidelines with respect to the management of fires in the urban area, but I can’t see that it would be illegal (and of course, having not seen the plan, I can’t be sure that it does in fact provide for that).

If it was inconsistent with the Act that would restrict the Commissioner’s ability, if it was inconsistent with his guidelines then all he would need to do is amend the guidelines. In summary, although I haven’t seen the Elevated Fire Danger Plan (EFDP) I can’t see any legal barrier to it operating as described by my correspondent.