For the second time in 18 months NSW is under a State of Emergency due to a natural disaster. You can read the wording of the declaration here.
From memory, before the flooding in 2012 there have only been two declarations of a State of Emergency in NSW under the current legislation.
- 1998 – After the Longford Gas explosion in Victoria to cut off supplies in NSW border areas that were supplied from Victoria.
- 1991 – During a Blue Green Algae outbreak in the Darling River to put the Public Works Department in charge of the government response.
A State of Emergency is declared under the State Emergency and Rescue Management Act to give emergency services extraordinary powers to combat an emergency situation. These powers are usually more extensive than those available to the emergency services under their own acts (in this case the Rural Fires Act).
I thought it might be interesting to do a play by play comparison of the powers under each act. This is necessarily a simplification, if you’re interested or need to use this stuff you need to read each Act, their Regulations or even get legal advice.
A few quick notes. Not all RFS Members are Officers for the purposes of the Act. I’m not sure which rank confers these powers or whether they’re delegated in another fashion, but if anyone knows I’d appreciate it. An Emergency Services Officer for the purposes of the SERM Act include RFS members of or above the position of Deputy Captain.
Coordination and Direction
Under the RFS Act
Who Exercises it?: The Commissioner of the RFS (s44)
What is it’s extent? When a Section 44 bushfire emergency is declared the Commissioner or delegate (in reality, the incident management teams) take control of the bushfire response. Directions can be issued to the RFS, Fire and Rescue NSW, the NSW Police Force and other persons in connection with fire fighting operations. (s45)
Under the SERM Act
Who Exercises it?: The Minister
What is it’s extent? The Minister gains the ability to direct the entire resources of government in the emergency response – even if those directions are contrary to other legislation or law (with the exception of the Essential Services Act). (s36)
Comments
In my opinion this is one of the most important provisions of the State of Emergency powers – Michael Eburn covers it in his excellent post on the State of Emergency declaration here.
Evacuation
Under the RFS Act
Who Exercises it? RFS Officers
What is it’s extent? Only if a person, vehicle or thing is interfering with RFS Operations. (s22A)
Under the SERM Act
Who Exercises it?: Emergency Services Officers where authorised by the Minister
What is it’s extent? Evacuate and remain out of the emergency area, these powers include the use of force. (s37)
Comments
The RFS does not have any power to evacuate people for their safety, so if they believe it is necessary They could rely on common law powers of the Police to detain and remove people from an area for their own safety, but a State of Emergency is likely to produce much greater levels of compliance and require less use of force. However this does raise the question of whether the RFS should have the power under their own act to ‘force’ evacuations. The traditional paradigm in community response to fires has been to leave it up to the community to decide. Recently we’ve seen a trend towards strongly advising people to evacuate in the worst fires – and an overall preference to evacuation as the safest measure. The State Emergency Service has significant evacuation powers under their Act in the case of flood emergencies, which can even include the use of force. To give the RFS greater powers to evacuate people would give them more options in the event of a fire without needing to resort to a State of Emergency.
Entry
Under the RFS Act
Who Exercises it? RFS Officers in the possession of a written authority (s32) and in some circumstances providing notice (s29)
What is it’s extent? Any premises to exercise their functions. (s23)
Under the SERM Act
Who Exercises it?: Any person in possession of a written authority (s37F) and in some circumstances providing notice (s37C)
What is it’s extent? To comply with a direction to undertake safety measures in section 37.
Road Closure
Under the RFS Act
Who Exercises it? Officers in charge of RFS brigades
What is it’s extent? Any road in the vicinity of a fire (and the RFS do not need to be controlling that closure – they can instruct somebody else to do so) (s24)
Under the SERM Act
Who Exercises it?: Emergency Services Officers where authorised by the Minister
What is it’s extent? Any road in an emergency area (and the emergency services officer does not need to ‘man’ the closure) (s37A)
Pulling down buildings and other safety measures
Under the RFS Act
Who Exercises it? RFS Officers
What is it’s extent? To protect life and property destroy buildings, fences, vegetation or establish fire breaks (and the RFS can instruct somebody else to do so) (s25)
Under the SERM Act
Who Exercises it?: Emergency Services Officers where authorised by the Minister can direct actions to
What is it’s extent? Pulling down or destroying damaged walls or premises. The destruction or removal of any material or thing that threatens life or property or inhibits the emergency response. (s37A)
Use of Force
Under the RFS Act
Who Exercises it? RFS Officers where authorised by the Commissioner
What is it’s extent? Only for the purpose of gaining entry (s31)
Under the SERM Act
Who Exercises it?: Persons where authorised by the Minister.
What is it’s extent? Only for the purpose of gaining entry (s37E)
Commandeering Property
Under the RFS Act
Who Exercises it? RFS Officers
What is it’s extent? Take and use without payment any water on any land. (s26)
Under the SERM Act
Who Exercises it?: The Minister
What is it’s extent? Take possession of and use any property. The property owner may receive but is not entitled to compensation.
Disconnection of Utilities
Under the RFS Act
None.
Under the SERM Act
Who Exercises it?: Emergency Services Officers where authorised by the Minister can direct actions to
What is it’s extent? Shutting off of any main supply of gas, water or other substance or gas or electricity to premises in the emergency area. (s37A)
Protection from Liability
Under the RFS Act
Who Exercises it? Any officer or member of the RFS, other fire fighting agencies or those acting under their direction
What is it’s extent? Protected persons (or the Crown) cannot be held liable for actions done in good faith.
Under the SERM Act
Who Exercises it?: Any person acting under the execution of a State of Emergency.
What is it’s extent? Protected persons (or the Crown) cannot have legal proceedings brought against them for actions done in good faith.
Casus Calamitas 