This is an interesting question from Victorian local government. I’ve been asked:

Is the Emergency Management Manual Victoria (EMMV) legally binding for state or local government? We understand that it refers to the Emergency Management Act (1986) and other acts when it elaborates on the content of state or local emergency response/management plans. Does government therefore have to follow a manual, from a legal point of view? The same question appears when dealing with the 2009 Victorian Bushfire Recommendations, or the white paper.

The Emergency Management Manual Victoria (EMMV) is available online at Part 3 of the Manual is the State Emergency Response Plan (SERP). Preparation of the SERP is mandated by the Emergency Management Act 1986 (Vic). The plan is to provide ‘for the co-ordinated response to emergencies by all agencies having roles or responsibilities in relation to the response to emergencies’ (s 10). The SERP is to be published and a copy provided to ‘every agency to which the state emergency response plan applies’ (s 17).

A municipal council must also prepare a municipal emergency management plan (s 20) and that plan must be audited at least once every three years to ensure that it ‘complies with guidelines issued by the Minister’ (s 21(5) and s 21A). The relevant guidelines form part 6 of EMMV.

The interesting question is ‘what does it mean to ask is the EMMV legally binding?’ The answer to that depends upon what sort of law or legal remedy you are talking about. As part of the correspondence on this question, that is correspondence to clarify the question before I wrote this post, it was suggested that:

… it is likely that organisation would be considered to be breaching their common law duty of care by not following industry best practice, unless they could sufficiently show that the actions were for a reason that could not be reasonably covered by the plan.

That statement confuses two questions in negligence law; one is whether or not there is a duty of care, the second, which only arises if the answer to the first question is ‘yes’, is ‘what would a reasonable person do in response to that duty?’

In an earlier post I reported on a decision in Matthews v SPI Electricity (No 2) [2011] VSC 168 (see ‘Black Saturday’ litigation, May 11, 2011). There I said:

“This was an application by the State of Victoria to dismiss claims made alleging breach of statutory duty and negligence by members of Victoria Police, DSE and the CFA.

“The original case against SPI Electricity alleges negligence in they way the operated and maintained electricity distribution assets. SPI joined, as a defendant, the State of Victoria alleging that part of the loss or damage was due to a failure by police to perform their duties under the Emergency Management Act 1996 (Vic) and the associated disaster plan (DISPLAN) [now SERP]…

“The case against the police was based on two different torts; one was ‘breach of statutory duty’ and the other was ‘negligence’. Although related these two torts are not the same. To succeed in a claim for breach of statutory duty, the plaintiff has to show that the defendant was obliged (not merely permitted) to do something; that they failed to do what they were required to do; as a result the plaintiff suffered damage; and most importantly, that the Parliament, in imposing the duty, intended that the Act would give an injured individual a private right to sue for damages. The parliament does not usually spell out its intention in such clear language so the intention must be inferred from the structure of the Act. Where, for example, an Act provides for a remedy, for example that failure to do what is required is to be punished by a fine, then that would suggest that an alternative remedy, the payment of damages, was not intended. Equally where an Act is designed to establish a scheme for the benefit of the community as a whole, rather than an identified class of people, it is unlikely that the parliament intended that individuals would have a private right to sue.

“Forrest J had to consider these issues in relation to the Emergency Management Act 1996 (Vic). He noted that the Act was designed to establish coordination and response arrangements across Victoria for all types of hazards. The Act, and DISPLAN, were intended to ensure that ‘key players know who is in charge at particular levels and what their responsibilities are.’ [73]. He said (at [76]):

“Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right – to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.

“Forrest J formed the view that, by passing the Act, the Parliament in no way intended to give individuals a private right to sue if they believed that a person, in this case a police officer, had failed to perform a task or duty set out in either the Act or DISPLAN. Accordingly the action based on breach of statutory duty was dismissed.”

The net result of that (remembering this is the decision of a single judge so not a binding precedent) is that just because the SERP says that an agency, such as the police or the council, is to do something that does not give an aggrieved individual the right to sue for damages because they haven’t done that thing.

As for a common law duty of care, deciding when that exists is very complex and depends entirely on the particular facts. A court will consider all the ‘salient features’ of the relationship between the plaintiff and the defendant to determine whether, as a matter of law, those facts lead to a conclusion that the defendant had to take reasonable care to protect, or avoid harming, the plaintiff. In Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258, Allsop P identified a list of 17 relevant ‘features’ that needed to be considered in deciding whether or not there was a duty of care so it is impossible to explain here (if it is every possible) exactly how and when a duty of care will arise; but if we assume that an agency does owe a common law duty of care to an individual, then certainly failure to comply with the SERP could be evidence of failure to act ‘reasonably’.

In terms of making the plan then compliance with the Guidelines is mandatory (see ss 21(5) and 21A) but again the remedy is probably not an action for damages. If someone did try to sue they would have to deal with the Wrongs Act 1958 (Vic) s 84(2) which says:

For the purpose of the proceeding, an act or omission of the public authority relating to a function conferred on the public authority specifically in its capacity as a public authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

Someone who alleged that a plan did not meet the guidelines could only succeed (assuming they could establish a duty of care) if the plan was ‘so unreasonable’ that ‘no public authority’ would accept that it was an attempt to comply with the guidelines. So if a council wrote their response plan without looking at the guidelines, with no reference to the guidelines, without any attempt whatsoever to comply with the guidelines, then they would not enjoy any protection from s 84. If, on the other hand, there is an honest attempt there could be no liability even if, in retrospect, it can be shown that a better plan could have been prepared or the plan that was prepared did not, despite genuine attempts, actually comply with the guidelines.

So the first conclusion is that the presence of an assigned task or duty in the SERP will not, simply because of that, give rise to a duty of care. Further a person who wanted to sue either because a municipal authority did not follow the SERP or because they (the person suing) alleged the municipal plan did not comply with the guidelienes, they would have a very difficult if not impossible case to make. So in that sense the EMMV is not ‘legally binding’ if by legally binding you mean ‘likely to expose us to an obligation to pay damages (ie monetary compensation)”.

But there are other areas of law, for example, administrative law. Under administrative law a person could seek an order requiring an authority to do what that authority is required to do. So, for example, a municipal authority that is required to prepare a municipal emergency management plan may not be legally liable to pay damages if they don’t prepare a plan, but a person with a relevant interest, say a ratepayer, may have standing in the Supreme Court to obtain an order to require the Council to make the plan.

There is also what we might call local government law. Local governments in Australia are not independent authorities, they are the creature of statute law. In Victoria, municipal authorities are established by the Local Government Act 1989 (Vic). The purpose of local government is not to do what they want, or what they think is a good idea, but “to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts. (s 3A, emphasis added).

Where a local government is failing to exercise good governance the Minister may appoint an inquiry into the council’s affairs, may recommend to the Mayor remedial action to be taken and may, pending resolution of the matter, authorise someone else to take steps to give effect to the recommendation (Local Government Act 1989 (Vic) ss 209-218) and may, ultimately,

… recommend to the Governor in Council that all the Councillors of a Council be suspended, if the Minister is satisfied on reasonable grounds—
(a) … that there has been a serious failure to provide good government … (Local Government Act 1989 (Vic) s 219).

If the Minister for Police and Emergency Services is responsible for ensuring that ‘satisfactory emergency management arrangements are in place’ and has approved the SERP for that purpose (Emergency Management Act 1986 (Vic) ss 5 and 10) then the Minister for Local Government may think that only a very ‘courageous’ local government (using that term as Sir Humphrey Appleby might use it; see would choose to ignore, or thought it was not bound to give full faith and credit to the EMMV.

In that sense I would suggest the EMMV is, indeed, binding on local authorities.