In the wake if cyclone Lam, various media outlets are reporting that a state of emergency has been declared in parts of the Northern Territory; Neda Vanovac ‘State of emergency to help in Lam clean-up’ The West Australian (online) 21 February 2015; ‘Cyclone Lam: NT residents struggling to cope in aftermath of category 4 storm’ ABC News (online), 21 February 2015; ‘State of emergency declared after Cyclone Lam’, SkyNews.com.au, 22 February 2015.
The Northern Territory has a graduated scale of emergencies. An event may an ‘emergency situation’ an ‘emergency’ or a ‘disaster’ (Emergency Management Act 2013 (NT) ss 18, 19 and 21). A state of emergency is declared when the Minister is satisfied that an emergency (that is, ‘an event that requires a significant coordinated response using the combined resources of the Territory and non-government entities within the Territory’ (s 8) has occurred and that special powers are required to manage the response to the emergency.
During an emergency situation an authorised officer may (s 23):
(a) direct a person to evacuate from, and remain outside, a specified place in the affected area;
(b) remove or direct another person to remove a person who does not comply with a direction under paragraph (a) from the place;
(c) direct the owner of anything in or near the affected area to remove or secure the thing;
(d) remove or secure, or direct another person to remove or secure, anything in or near the affected area if the owner of the thing:
(i) does not comply with a direction to remove or secure the thing under paragraph (c); or
(ii) cannot be found within a reasonable time to give the owner a direction under paragraph (c);
(e) direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer.
Further, an ‘authorised officer, or a person acting in accordance with the directions of an authorised officer, may use reasonable force to remove a person under subsection (1)(b) if necessary’ (s 23).
A ‘state of emergency’ is an example of an emergency situation (s 18(1)(b)) so during a state of emergency, an authorised officer can exercise all those powers listed in s 23, above, as well as special powers that only apply during a declared state of emergency or disaster. Those extra powers are set out in s 24 and allow an authorised officer to:
(a) direct a person to assist in tasks to save life or property in immediate danger in the affected area;
(b) direct the owner or person in charge of a place of business, worship or entertainment in the affected area to close the place to the public for a specified period;
(c) using reasonable force if necessary, enter a place in the affected area;
(d) close a place open to or used by the public, including a road.
The difference between a state of emergency and state of disaster is that in an emergency, the response ‘requires a significant coordinated response using the combined resources of the Territory and non-government entities within the Territory’ (s 8). What converts an ‘emergency’ into a ‘disaster’ is that in a disaster the response ‘requires a significant coordinated response using the combined resources of the Territory, non-government entities within the Territory and resources from outside the Territory’ (s 8; emphasis added).
An authorised officer can exercise all those special powers listed above in both a state of emergency and a state of disaster.
An authorised officer is the Territory Controller, the Territory Recovery Controller, the Director of the Northern Territory Emergency Service; a relevant Regional Emergency Controller or Regional Recovery Coordinator, the Local Emergency Controller and Local Recovery Coordinator; any person appointed by any of the people already mentioned as an authorised officer, and any police officer (s 98).
A state of emergency remains in place for three days unless it is revoked, it is replaced with a disaster declaration or it is extended by the Minister, in each case by not more than 3 days (s 20). A state of disaster is declared by the Administrator and remains in place for seven days unless revoked or extended (s 22).
The NT Act seems to miss out on some useful provisions that are in other states. For example it does not say whether the declaration applies to the entire Territory or just parts of it. The ABC are reporting that ‘A state of emergency was declared in communities including Milingimbi, Ramingining, Galiwinku, Gapuwiyak and Mapuru Outstation’ which carries the obvious implication that the Minister believes he can declare the state of emergency for just parts of the Territory. Compare that to, for example, Victoria where ‘the Premier may declare a state of disaster to exist in the whole or in any part or parts of Victoria’ (Emergency Management Act 1986 (Vic) s 23(1); see also State Emergency And Rescue Management Act 1989 (NSW) s 33).
Further, the NT Act does not explain how the declaration is to be made public. The media are reporting this declaration but it does not appear, at least at the time of writing, in the government gazette, http://www.nt.gov.au/ntg/gazette.shtml; or as a media releases on the website of NT Police, Fire and Emergency Services; http://www.pfes.nt.gov.au/Media-Centre/Media-events/Cyclone-Lam-media-releases.aspx.
Other jurisdictions give explicit instructions on how such a declaration must be publicised. To again use Victoria as an example,
As soon as practicable after the making, revocation or variation of a declaration under this section the Premier must cause notice of the making, revocation or variation of the declaration to be broadcast from a broadcasting station in Victoria and to be published (with, in the case of the making or variation of a declaration, a copy of the declaration) in the Government Gazette. (Emergency Management Act 1986 (Vic) s 23(4); see also State Emergency And Rescue Management Act 1989 (NSW) s 34).
The purpose of making a declaration is to empower the emergency services but also to communicate to those affected the seriousness of the matter. In its final report the 2009 Victorian Bushfires Royal Commission said (at [2.5.1] ‘The Commission considers that declaring a state of disaster would offer benefits beyond the grant of additional powers. First, it would provide symbolic recognition of the gravity of a situation …’ Further as it empowers officers to use force, then the fact that the declaration has been made should be communicated to the community so that they can be made aware of the changed legal circumstances.
Now it has been communicated as it is being reported, but it appears impossible for anyone to find the actual declaration to determine where it applies and any specifics in the declaration. That might be excused on the basis that there is in fact an ongoing emergency, and it’s Sunday, but that does seem like pretty poor excuses given an emergency response must always be 24 hours a day. One can’t really imagine that it’s too hard to have someone in government who can put the terms of the declaration on the Fire and Emergency Services website so the exact terms of the declaration can be found, rather than relying on the second hand reports from the media.