Legal Issues around civil contingencies in Australia: All hazards? All agencies?

1. Legal Issues around civil contingencies in Australia: All hazards? All agencies? Dr Michael Eburn ANU College of Law and Fenner School of Environment and Society

2. In this presentation I will… • Identify the issues addressed in the Civil Contingencies Act 2004 (UK); • Explain these issues are addressed in Australia and ask:- • “Are there lessons for either country here?”

3. The Civil Contingencies Act 2004 (UK) • Contingency planning • Agencies, including local governments, must assess risks and plan for their response; • Must plan to warn the community • Civil Protection • Agencies may be required to perform civil protection functions. • Can disclose information between them.

4. The Civil Contingencies Act 2004 (UK) • Emergency powers • Power to make emergency regulations • Various powers may be provided • Coordinators must be appointed.

5. The Australian experience • Australia has: • The Commonwealth; • 6 states and 2 self-governing territories; and • 565 local government authorities. • Each State and Territory • Has police, bush and urban fire, ambulance and generic State Emergency services.

6. We have no national Act • The Commonwealth does not have counter-disaster legislation. • The Commonwealth sees its role in • Finance – the Natural Disaster Relief and Recovery Arrangements; Social Security payments. • Assets – Primarily defence.

7. What’s missing… • The power to require government departments to plan for contingencies (CCA ss 2 and 3). • Any ‘emergency powers’ would depend on the executive power of the Commonwealth (see CCA s 22(3)). • There is no the “Principal Federal Official” or “Federal Coordinating Officer”

8. States • All the States/Territories have counter-disaster legislation. • Provide for standing appointment of emergency coordinators at State/Region and Local level (cfCCA s 24).

9. Lead combat agencies • Appointed by State Disaster plans (cfCivil Contingencies Act 2004 (Contingency Planning) Regulations 2005 (UK) r 9) • In the event of disagreement, overlap there is a emergency coordinator (usually a police officer) who can determine the issue. • Control moves to another agency (usually police) on emergency declaration.

10. Emergency powers • Standing powers are triggered by a declaration of emergency/alert/disaster (cfCCA 22(3)). • No specific parliamentary supervision but each state has a parliamentary emergency committee to provide whole of government response. Declarations are made by the Minister or Premier/Chief Minister.

11. Local Government The Productivity Commission, draft report ‘Barriers to Effective Climate Change Adaptation’: “… local governments are primarily responsible for managing disasters in their local government area, while other agencies such as the police and State Emergency Service perform emergency management activities on a larger scale under command structures determined at the state or territory level.”

12. But that’s not correct… • Local governments are vitally concerned with ‘preparation’ and ‘prevention’ but with limited capacity. • They have no specific “response” role in EM legislation. They respond to protect their own assets and to provide their services.

13. Combat agencies • Are state based – the local SES, RFS or Fire Brigade are in charge of the response at local, region and state level. • Councils may provide resources to the response.

14. What’s missing… • An equivalent to the CCA s 2 and Schedule 1. • A whole of government/community approach – Australia’s EM arrangements are really government’s arrangements.

15. Are there lessons here for each other? • Thank you for your attention and the chance to contribute. Michael EburnANU College of Law & Fenner School of Environment and SocietyP: + 61 2 6125 6424E: michael.eburn@anu.edu.au