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Chapter 5: Declaration of national emergency

Summary

5.1 Australia’s disaster outlook is alarming. States and territories alone may not be able to respond effectively to, or provide immediate relief or recovery from, extreme to catastrophic disasters.

5.2 State and territory governments are primarily responsible for responding to and recovering from natural disasters. The role of the Australian Government is largely to support states’ and territories’ responsibilities. However, the Australian Government has unique capabilities, and is able to take a broader view of the national consequences of extreme to catastrophic disasters.

5.3 To better assist states and territories in responding to and recovering from such disasters, the Australian Government should create a legislative mechanism for the making of a declaration of a state of national emergency.

5.4 A declaration would signal to communities the severity of a disaster early, act as a marshalling call for the early provision of Australian Government assistance when requested, facilitate coordination with state and territory emergency management frameworks, and, in very limited circumstances, allow the Australian Government to act without a request from a state or territory.

A challenging future

5.5 Natural disasters that engage the responsibilities of the Australian Government will be more frequent and more intense in the future. Consecutive and compounding natural disasters will increasingly stress existing emergency management frameworks. These disasters will not always be confined to a single state or territory; they will extend across boundaries and, in more severe cases, will have a truly national impact.

5.6 The 2019‑2020 bushfire season is an early indication of a concerning future, concurrently impacting several states and territories. The bushfires were not the only disaster to impact Australia during that period. The season also saw heatwaves, hailstorms and flooding; all on the back of the crippling drought. In many areas, the combination of these events compounded their effect. These successive hazard events strained existing systems and capacity.

5.7 It is foreseeable that a future disaster, or compounding disasters, could have a catastrophic impact on a national scale. This is particularly so given the increasing exposure of some areas to disaster risk. For example, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) noted that the Gold Coast in Queensland has significantly more infrastructure and interconnected critical services, and many more inhabitants, than it did when the Great Gold Coast Cyclone struck in 1954. A similar cyclone on the Gold Coast today would be likely to be many times more damaging. It could also impact the communities now located across the border in NSW.

5.8 The risks posed to Australia are, of course, broader than those posed by natural disasters. They extend to the risks posed by events such as pandemics, cyber-attacks, terrorism and war. While these risks and threats are not the focus of our report, they should be considered when determining whether Australia is prepared for the risks posed by such events, including by future compounding disasters. This includes because the same agencies that are required to respond to a natural disaster may also be needed to respond to other events.

5.9 State and territory governments are responsible for responding to, and recovering from natural disasters. The Australian Government’s role is one of support – it provides assistance to states and territories, and its capabilities complement state and territory responses. The Australian Government has told us that it does not wish to replicate or assume state and territory government responsibilities [440] and, in our view, nor should it.

5.10 Some state and territory governments have taken the position in this Royal Commission, in effect, of maintaining the status quo. However, we are concerned that maintaining the status quo could increase the risk of state and territory resources being overwhelmed to the extent that the relevant state or territory cannot effectively respond to, or recover from, a natural disaster.

5.11 Our terms of reference require us to consider whether the Australian Government should have the power to declare a state of national emergency (a declaration), how such a declaration would interact with state and territory emergency management frameworks, and whether it should facilitate the Australian Government having clearer authority to take action in the national interest.

5.12 It is clear that communities expect national leadership and coordination in times of crisis. In particular, communities expect the Australian Government to provide assistance when it can, regardless of the division of responsibilities for managing natural disasters across the different levels of government under Australia’s federal system. The Australian Government is uniquely placed to be able to understand, and respond to, future disasters in the national interest. It is able ‘to see the national picture, the national risks and the impacts on all Australians.’ [441] There is a need, however, to better use and coordinate Australian Government resources to act in the national interest in response to natural disasters. A declaration of a state of national emergency would provide a clear, transparent articulation of the role of the Australian Government and foundation for action.

An enhanced Australian Government role

5.13 As noted, the Australian Government primarily plays a supporting role in relation to natural disasters. We are of the view, however, that there is scope for a greater level of Australian Government support, which could be brought to bear earlier to assist state and territory governments to discharge their responsibilities. The Australian Government needs to take further action, and do so sooner, to protect lives and property in the future.

5.14 This is partly because the Australian Government ‘is often better placed to take a broader national view of the strategic consequences of unfolding events’. [442] This national perspective uniquely positions the Australian Government to signal that the impact, or likely impact, of a disaster will be extreme or catastrophic.

5.15 The Australian Government also has a unique set of supporting capabilities that can, and do, assist states and territories to save lives and property and also to recover from the impacts of natural disasters. These capabilities include the provision of logistical support, transportation of personnel and equipment, assistance in large‑scale evacuations, and provision of financial assistance. These capabilities were drawn on in the 2019‑2020 bushfire season, and in response to other disasters such as Cyclone Debbie in 2017.

5.16 Australian Government capabilities continue to evolve and develop, and are likely to have additional benefits in responding to, and recovering from, natural disasters in the future.

Existing arrangements

5.17 Plans are already in place for the management of natural disasters. The most recent version of the Australian Government Crisis Management Framework (October 2020) (AGCMF) outlines the Australian Government’s approach to the management of disasters and emergencies. [443] This includes providing ministers and senior officials with guidance on their respective roles.

 

Figure 18: Adapted from the Australian Government Crisis Management Framework (October 2020) outlining Australian Government responsibilities.

Supporting Role

Joint Management

Primary Responsibility

Providing support to the states and/or territories where Australian Government coordinated assistance has been requested or where Commonwealth interests are affected or threatened.

Working together with the states and/or territories to manage a crisis that has potential to affect, or has affected, more than one jurisdiction, the broader community or an Australian Government area of responsibility, and prioritise limited resources when there is competing demand.

Managing any crisis that is not the responsibility of a state or territory.

Financial assistance

Providing financial assistance to state and territory governments and individuals affected by a major crisis.

National Catastrophic Natural Disaster Plan

5.18 The AGCMF is supported by a number of national plans and arrangements. In 2010, the Australian Government and states and territories agreed to a plan that applies in circumstances where a catastrophic disaster impacts Australia – the National Catastrophic Natural Disaster Plan (NATCATDISPLAN). [444] The Council of Australian Governments (COAG) endorsed the plan on 12 July 2010. Its stated function is as a ‘contingency plan’ for the provision of coordinated support by the Australian, state and territory governments to a state or territory where its government and/or its capacity to manage the response to and recovery from a catastrophic natural disaster has been ‘significantly incapacitated’. Notably, the NATCATDISPLAN has never been triggered, not even during the 2019‑2020 bushfire season, despite the national scale of the disaster.

5.19 In agreeing to the NATCATDISPLAN, Australian, state and territory governments have effectively agreed that in certain, albeit extreme, circumstances the Australian Government can provide assistance to a state or territory where a request for that assistance has not been made (ie when the ‘affected Executive Government is temporarily incapacitated’). [445] One principle underlying the plan is that assistance provided by governments will normally be at the request and in support of ‘the legitimate Commonwealth Government or State authority’. The plan could, however, also be activated at the direction of the Prime Minister where no representative of the government of an affected state can be readily contacted due to the impact of a catastrophic natural disaster and where it appears to be clear that significant assistance to the jurisdiction is required. [446]

5.20 It is unclear when the NATCATDISPLAN would be activated, in particular where a state and territory government is incapacitated. Further, it does not outline how Australian Government resources would be coordinated to provide assistance to states and territories, and does not facilitate clear messaging to communities. While it contemplates, and may therefore be said to allow, the taking of unilateral Australian Government action, it would be preferable to redraft the current plan to provide certainty. We note the intention of the Department of the Prime Minister and Cabinet to comprehensively review the plan in 2021 as part of a wider review of the AGCMF and its plans. [447]

Australian Government Disaster Response Plan

5.21 We also note that the Australian Government Disaster Response Plan (COMDISPLAN) [448], while necessary, is not sufficient to facilitate greater direct involvement by the Australian Government. This is because the COMDISPLAN is the plan for the provision of Australian Government non-financial assistance to Australian states and territories in an emergency or disaster when requested by a state or territory. The COMDISPLAN assumes that a state or territory is managing the disaster and also has the capacity to request assistance.

A state of emergency

5.22 The Australian Government does have mechanisms, set out in legislation, for declaring an emergency in some circumstances. For example, the Australian Government can declare an emergency in relation to biosecurity matters. [449] The Governor-General can declare a human biosecurity emergency if the Health Minister is satisfied that a listed human disease is posing a severe and immediate threat, or is causing harm to human health, on a nationally significant scale. The declaration must also be necessary to prevent or control the entry into, or the emergence, establishment or spread of, the listed human disease in, Australia. Such a declaration was made during the COVID-19 pandemic. [450]

5.23 There is, however, no formal mechanism for the Australian Government to convey the seriousness of a natural disaster to Australian communities and internationally. Australian natural disaster arrangements would benefit from a specific, legislative mechanism for a declaration that provides both a signal of a state of emergency, and articulates the role and objectives of Australian Government support.

What would the declaration do?

5.24 In circumstances where a natural disaster is having a major impact, a declaration could provide an important formal signal to communities and individuals about the severity of the disaster. A declaration would also provide an important signal to the Australian community more broadly. This signalling effect would be consistent with the purpose of similar state declarations. For example, NSW told us that that a ‘natural disaster declaration’ is used by the NSW Government ‘to publicly acknowledge the severity of a natural disaster’. [451] Victoria also supported the important signalling effect of a declaration of a disaster, advising that ‘the declaration signalled to Victorian communities the gravity of the situation’. [452]

5.25 In addition to signalling, a declaration would provide clarity and transparency of objectives, thresholds and considerations for the use of Australian Government resources. The Australian Government already contributes significantly to the response to, and recovery from, natural disasters through financial and non-financial measures. For example, the Australian Government provides financial assistance to communities through the Australian Government Disaster Recovery Payment and Disaster Recovery Allowance. Australian Government agencies also facilitate the provision of international support, and make continued dispensing determinations to enable ongoing access to prescription medicine for those affected by a natural disaster.

5.26 Other Australian Government departments, bodies and agencies also routinely provide essential services that are needed in the preparation for, response to, and recovery from disasters. Examples include the Bureau of Meteorology, Geoscience Australia, the CSIRO and Services Australia.

5.27 A declaration could, as the Australian Government suggested, be ‘an implied warning order requiring all Commonwealth agencies to adjust their posture to be ready to respond’. [453] It would indicate the need for a state of readiness or action, and could function to mobilise those agencies in support of states and territories. The introduction of this new mechanism would support action by the Australian Government before, during and immediately after, and in the recovery phase of, a natural disaster.

5.28 A declaration should normally, where state and territory consent has not been provided, only relate to Australian Government resources – it should not seek to determine how the resources of states and territories are used or allocated.

5.29 It should also provide a clear mechanism to support the Australian Government to act unilaterally in a limited set of circumstances – such as where a state or territory government cannot take actions to save lives or property, including, for example, where an executive government of a state or territory is incapacitated.

Before

5.30 A declaration would put Australian Government agencies on the front foot before a disaster occurs, or before an existing disaster becomes more severe. It should be ‘the catalyst for a more coherent, pre-emptive and expeditious mobilisation of Commonwealth resources, including movement to heightened preparedness postures and pre-positioning of critical Commonwealth resources in anticipation of state and territory requests for assistance’. [454]

5.31 A declaration would signal to Australian Government agencies that existing powers and processes should be ready to be used at short notice. For example, while the ADF can already pre-position to areas where a state or territory might eventually request their assistance, a declaration may trigger or expedite that pre-positioning. A declaration could also enable the rapid redeployment of the resources of the Australian Public Service, for example, to better aid the provision of international assistance or financial support during a natural disaster.

5.32 Many welcomed the assistance received from the ADF during the 2019‑2020 bushfires and suggested that earlier assistance from the ADF would be desirable. The request for earlier assistance reflects two important considerations. First, the Australian Government should not wait for a natural disaster to overwhelm or exhaust local resources before it is able to provide assistance and secondly, it generally takes time to mobilise resources and move them to affected areas.

5.33 Consideration should also be given to whether specific powers could be introduced that allow directions to be given to Australian Government agencies, such as science and geoscience agencies, to prioritise providing assistance related to the disaster to states and territories. Similar powers exist in some state declaration frameworks. For example, a declaration of an emergency in Victoria allows the relevant minister to provide direction to any government agency concerning activities to be undertaken, or refrained from being undertaken, in a state of emergency. [455]

During and immediately after

5.34 State and territory governments have primary responsibility for responding to natural disasters, and a declaration should not displace that responsibility. States and territories must be able to coordinate and direct their own emergency combat and recovery agencies, and other resources.

5.35 The effect of a declaration during a natural disaster, and immediately after, should facilitate Australian Government agencies proactively supporting states and territories in responding to the disaster. This should include expeditious mobilisation of Australian Government resources, and continued pre-positioning of those resources where they may be required.

5.36 In extremely limited circumstances, a declaration should also enable the Australian Government to take action in the national interest and in support of a state or territory where a request for assistance has not been made. The scale of future disasters may be such that the resources available to a state or territory, including those provided by other states and territories, are or are likely to be fully committed or exhausted. For a variety of reasons, a request for Australian Government assistance may not have been made, such as where the impact of a natural disaster is rapidly developing in an unforeseen manner. In these limited circumstances, where lives and property are in danger, the Australian Government should not stand idle – it should act.

5.37 We heard that, during the 2019‑2020 bushfires, the ADF evacuated over 1,100 people from the coastal town of Mallacoota in Victoria by sea and air. The evacuation is a good example of how an Australian Government resource may be utilised in the national interest to provide relief during a natural disaster. The ADF also delivered much needed food and water supplies to places and persons that were affected by the bushfires or were cut off during the bushfires.

5.38 It is important that our intention is clear in suggesting an Australian Government declaration of a state of national emergency – we do not suggest the Australian Government supplant the responsibility of states and territories for management of emergencies within their jurisdictions and for determining their own internal coordination mechanisms. Instead, we suggest the Australian Government support them to meet that responsibility by facilitating Australian Government action where a state or territory government is unable to discharge its responsibilities without assistance.

5.39 The making of a declaration would also give greater weight to the escalation of discussions of national resourcing priorities to the National Cabinet or similar forum. There may come a time when the competition for resources to respond to a natural disaster is such that a national decision concerning the prioritisation or allocation of resources, especially the finite resources of the Australian Government, is required. The National Cabinet or similar forum could play a role in this regard.

Longer term recovery

5.40 Consideration could also be given to whether a declaration triggers, or might otherwise initiate, the provision of additional financial support from the Australian Government to assist communities to recover from a natural disaster. The Australian Government provided significant financial support following the 2019‑2020 bushfires. For example, the Australian Government committed $2 billion to recovery through the National Bushfire Recovery Fund, to ‘coordinate a national response to rebuild communities and livelihoods after the devastating fire-front has passed’. This Fund is administered by the National Bushfire Recovery Agency (NBRA). The Australian Government has also paid $252.3 million under the Australian Government Disaster Recovery Payment and the Disaster Recovery Allowance.

5.41 Under the Constitution, the Australian Government can make grants of financial assistance to the states with certain terms and conditions. These grants may be made to assist states to recover from natural disasters. In most cases, the spending of public money by the Commonwealth Parliament requires a source of legislative authority. A declaration underpinned by legislation could provide unambiguous authority for these grants of assistance, thereby supporting the delivery of relief.

Sources of constitutional power

5.42 A declaration that allows the Australian Government to take the actions outlined above raises some constitutional issues. That is primarily because there is no express mention of national emergencies or natural disasters in the Constitution. However, our view is that the Australian Government has a sound constitutional basis for introducing a declaration mechanism through legislation.

Referral of power from states

5.43 State Parliaments can refer ‘matters’ to the Commonwealth Parliament, as provided for by the Constitution. [456] Referrals can occur where the Commonwealth either does not have the power to make legislation or to ensure that it does have power, or to fill any potential gaps in Commonwealth legislative power. This approach has been taken to support measures relating to, for example, terrorism, corporations, and redress for institutional child sexual abuse.

5.44 The Australian Government has suggested to us that the states should refer power to it to allow it to clearly enact legislation supporting the making of a declaration as part of a ‘two key’ model for collective action that involves the consent of the Australian government and the affected state or territory. This two-key process relies on the states referring power to the Commonwealth. [457]

5.45 We agree that a referral of power by the states could provide a strong and unequivocal basis to enable the Australian Government to implement a declaration. It would signify a collective, national approach to the introduction of the declaration.

5.46 The exercise of power could be made contingent on the making of a declaration. In particular, it could be that the referred power is only activated when a state consents to the making of a declaration, or where a state is unable to provide consent (or is unable to provide consent in sufficient time) and the Australian Government needs to take unilateral action. Consideration could also be given to whether a referral would allow for the Australian Government to direct the use of state resources.

5.47 However, we do not consider that a referral is required for legislation to enable the making of a declaration. Additionally, an approach that depends upon negotiating with the states to refer matters could be protracted, thus delaying the introduction of legislation that enables the making of a declaration. As the Australian Government noted, negotiation ‘with potential participating states and territories and the necessity for sequenced state and Commonwealth legislation to give effect to a referral means that referrals can often take some time to put in place’. [458] We would be reluctant, especially in the face of increasing disaster risk, to see extended delay in circumstances where a referral is desirable, but far from essential.

Legislative power

5.48 The Australian Government’s suite of legislative powers provides constitutional authority for a declaration. These powers, known as ‘heads of power’, are set out in section 51 of the Constitution. Provided that an act, fact, matter or thing described in a law is relevantly connected to a section 51 head of power, the law will ordinarily be valid. The ‘incidental power’, contained in section 51, allows the Commonwealth to introduce laws that give practical effect to each of the other powers set out in that section.

5.49 The heads of power listed are extensive and should cover the circumstances where the Australian Government needs to act with respect to a national emergency without a request from a state or territory. A full list of these powers is reproduced at Appendix 15: Declaration. In particular, the Australian Government could introduce legislation that would allow it to take action in circumstances where a natural disaster (whether bushfire, cyclone, flood or another natural disaster) impacts upon, for example, the following subject matter:

  • trade and commerce with other countries, and among the States
  • postal, telegraphic, telephonic, and other like services
  • the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth
  • astronomical and meteorological observations
  • quarantine
  • banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money
  • insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned
  • bankruptcy and insolvency
  • foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth
  • external affairs, and
  • the control of railways with respect to transport for the naval and military purposes of the Commonwealth.

5.50 The Commonwealth also has exclusive power under section 52 of the Constitution to make laws for the peace, order, and good government of the Commonwealth with respect to:

  • the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes
  • matters relating to any department of the public service, and
  • other matters declared to be within the exclusive power of the Parliament.

5.51 A combination of these powers would support the making of a declaration underpinned by legislation. This legislative approach has been used previously, and has been upheld by the High Court of Australia. [459]

5.52 Some states have commented that relying on a ‘patchwork’ of powers to support a legislative scheme may result in unintended gaps. We are of the view, however, that given the extensive scope of the combined powers, and the wide ranging potential impact of natural disasters, it would be difficult to encounter a situation that is not relevantly connected to the subject matter of a head of power. [460]

5.53 We have already noted that legislation for a grant of financial assistance to the states can provide for certain matters and conditions.

Executive power

5.54 The executive power of the Commonwealth, found in section 61 of the Constitution, extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth. The ‘execution and maintenance of the Constitution’ encapsulates the notion of maintaining the federal system. If a natural disaster were to threaten or disrupt the operation of the federal system, the executive power would enable the Commonwealth to act to uphold and protect it.

5.55 Section 61, in conjunction with the incidental power, [461] has been relied upon for the purpose of enacting legislation. The Australian Government’s response to the global financial crisis is an example of legislation relying on this source of power. This power is said to encompass the inherent authority derived from the character and status of the Commonwealth as a national government.

5.56 Some states and territories consider that the extent to which this power could be relied upon by the Australian Government is uncertain, may not extend to coercive action, and could contravene the Melbourne Corporation principle. [462] We note, however, that facilitating the evacuation of individuals to save their lives where a state cannot act is unlikely to contravene the Melbourne Corporation principle, and it is unlikely that any state could reasonably argue that it does.

Proposed declaration model

5.57 The introduction of a declaration should be supported by legislation. Legislating for a declaration model would provide clarity of the circumstances in which a declaration may be made and the actions that the Australian Government could take in support of states and territories. It would also better define the role of the Australian Government in relation to that of the states and territories.

Relevant considerations for the making of a declaration

5.58 The following matters will need to be considered in determining the declaration model to be adopted. We provide our views on each of these considerations, including canvassing limits in some circumstances.

Decision-making

5.59 The Australian Government’s ‘two key’ proposal would, in a majority of circumstances involve the Australian Government and the affected states and territories agreeing that a declaration be made. In circumstances where affected state and territory governments do not agree to the making of a declaration, the Australian Government proposes that it still be able to make a declaration. [463]

5.60 We think that the proposal could also allow the Australian Government to make a declaration where affected state or territory governments have not agreed at the time, but where agreement is provided at a later date. For example, a state government might be temporarily incapacitated to the extent that it cannot provide agreement at the time of the making of a declaration, but it may provide agreement once it has returned to proper functioning, or where an emergency action was taken by the Australian Government to save lives or protect Australian Government assets.

5.61 Ordinarily, the role of the Australian Government is to provide support to states and territories in responding to and recovering from natural disasters. Due to this, it will generally be appropriate for the Australian Government to consult with state and/or territory governments about how it can best perform these roles. The decision to make a declaration could be assisted by consultation with first ministers through the National Cabinet or a similar forum.

5.62 However, there may be instances where consultation is not possible (for example, where a state or territory is incapacitated) or practical (for example, where lives are in immediate danger). Accordingly, the making of declaration should not depend on agreement from the affected state or territory government, or a referral of power from states.

5.63 Regardless of whether state or territory government agreement is obtained, the making of a declaration will require a decision-maker at the Australian Government level. Existing legislation provides a useful guide as to the appropriate person to make a declaration. For example:

  • the Prime Minister can declare that a terrorist act that occurs outside Australia is a declared overseas terrorist act for the purposes of the Australian Victims of Terrorism Overseas Payment scheme
  • the Minister for Water Resources, Drought, Rural Finance, Natural Disasters and Emergency Management is responsible for determining that an event is a ‘major disaster’ for the purpose of the Australian Government Disaster Recovery Payment, and
  • the Governor-General may declare that a human biosecurity emergency exists if the Health Minister is satisfied of defined criteria, allowing the Health Minister to specify requirements necessary to prevent or control the entry or spread of a human disease into Australia, including restricting or preventing the movement of persons, and requirements for specified places to be evacuated.

5.64 Given the limited circumstances in which a declaration would be made, and the objective of giving national recognition and prominence to a disaster, we suggest that the Prime Minister should be responsible for making a declaration.

Thresholds

5.65 Careful consideration would need to be given to the threshold for making a declaration. We suggest that a declaration model could contain two thresholds.

5.66 The first threshold, in the case of a national disaster, would apply to the making of a declaration generally. The second threshold would apply with a view to the Australian Government taking unilateral action. We suggest that two thresholds are necessary, as a declaration should be able to be made where unilateral action is not required, and the taking of action by the Australian Government without a request from a state or territory should be subject to a higher threshold.

5.67 We consider that the first threshold for making a declaration could include circumstances where:

  • a natural disaster (or compounding disasters) is having, or is likely have, a national impact because of its scale or consequence
  • the natural disaster (or compounding disasters) has the potential to overwhelm or exhaust the affected state or territory’s capacity to respond and recover, or
  • given the nature or complexity of the natural disaster (or compounding disasters) Australian Government assistance should be provided in the national interest.

5.68 The second threshold for a declaration, supporting the Australian Government taking unilateral action, will need to be sufficiently high so as to confine the circumstances in which such action could be taken. The intervention of Australian Government resources, such as the ADF, in response to a disaster and without a request from a state, is truly exceptional. It is, from a principled perspective, at odds with the division of responsibilities between the Australian Government and the states and territories, and our long established use of the ADF in Australia. The threshold for taking unilateral action should recognise that:

  • there is significant risk to lives or property
  • the affected state or territory cannot take action
  • a request for assistance will not be forthcoming before lives or property are lost, and
  • it is necessary to take action in the national interest.

Duration

5.69 Consideration should also be given to how long a declaration would be in place after it has been made.

5.70 We note that all emergency declarations made under state and territory legislation prescribe a period of operation. Australian Government legislation also contains limits on duration of analogous declarations. For example, under the Biosecurity Act 2015 (Cth), a declaration of a biosecurity emergency or human biosecurity emergency made by the Governor-General must not be longer than the relevant minister considers appropriate and, in any case, must not be longer than three months. However, the Governor-General may extend the emergency period for up to three months at a time in prescribed circumstances.

5.71 It is our view that a declaration should only be in place for the minimum period for which it is required. A declaration that is in place for an unnecessarily long duration risks reducing the important signalling effect of the declaration. It also risks extending, unnecessarily, the duration of any associated intervention.

Powers and processes

5.72 The powers available under a declaration could reflect those outlined above before, during and immediately after, and in the recovery from, natural disasters. In particular, the powers and processes enabled by a declaration could include:

  • the ability for the Australian Government to make a public declaration to communicate the seriousness of a natural disaster
  • processes to mobilise and activate Australian Government agencies quickly to support states and territories to respond to and recover from a natural disaster, and
  • the power to take action without a state or territory request for assistance in clearly defined and limited circumstances.

Recommendation 5.1 Make provision for a declaration of a state of emergency

The Australian Government should make provision, in legislation, for a declaration of a state of national emergency. The declaration should include the following components:

  1. the ability for the Australian Government to make a public declaration to communicate the seriousness of a natural disaster
  2. processes to mobilise and activate Australian Government agencies quickly to support states and territories to respond to and recover from a natural disaster, and
  3. the power to take action without a state or territory request for assistance in clearly defined and limited circumstances.

Interaction with state and territory frameworks

State and territory declaration frameworks

5.73 All state and territory governments can declare a state of emergency or disaster in certain circumstances. The terminology of the declaration – that is, whether it is called an emergency or a disaster – varies depending on the arrangements in each state or territory. For present purposes, we use ‘emergency’ to capture both terms. Under state and territory legislation, an ‘emergency’ is typically defined as an actual or imminent event that requires a coordinated response and represents a threat to life, persons, animals, property or the functioning of an essential service. It will usually also have resourcing implications for the state and possibly other jurisdictions. An ‘emergency’ or ‘disaster’ tends to include events such as: natural disasters, including fires, floods and earthquakes, epidemics or disease outbreaks; and terrorism or warlike actions.

5.74 The power to make a declaration in each state and territory varies, with some providing that the Premier or responsible minister can make a declaration, while others allow the state emergency coordinator, or other officials, to make a declaration for a defined area.

5.75 State and territory declarations typically trigger the activation of certain powers to be used by the government or responsible agencies for the duration of the declaration. [464] In Victoria, for example, the declaration provided ‘the Minister with powers for directing and coordinating the activities of all government agencies and the allocation of State resources necessary for responding to the disaster’. [465] A summary of the key powers activated by a declaration for each state and territory is outlined in Appendix 15: Declaration.

Declarations in the 2019‑2020 bushfire season

5.76 During the 2019‑2020 bushfire season, a number of states of emergency or disaster were declared. [466] Some were made in anticipation of the disaster, while others were reactive:

  • In NSW, the Premier, the Hon Gladys Berejiklian MP, declared three states of emergency during the 2019‑2020 bushfire season. The first was declared on 11 November 2019 for a period of seven days. [467] The second was declared on 19 December 2019 until 26 December 2019, [468] and the third was in force from 2 January 2020 until 10 January 2020. [469] The declarations were made upon the Premier being satisfied that an emergency, ‘namely bushfires in various parts of the State, constitutes a significant and widespread danger to life or property’.
  • In Victoria, the Premier, the Hon Daniel Andrews MP, declared a state of disaster on 2 January 2020 for six local government areas and three alpine resorts, [470] and varied it on 3 January 2020 to include an additional alpine resort. [471] The 2019‑2020 bushfire season was the first time such a declaration had been made in Victoria. [472] The declaration remained in force until 9 January 2020. The decision to make and then later vary the declaration was stated to be made on advice from the Minister for Police and Emergency Services and the Emergency Management Commissioner, including the potential for ‘significant and widespread danger’ to life or property, among other matters. [473] At that date, the Premier extended the declaration for a further two days, until 11 January 2020.
  • In the ACT, the Chief Minister, Andrew Barr MP, declared a state of alert from 2 January – 9 February 2020. A territory-wide state of emergency was declared from 31 January 2020 to 2 February 2020, the Chief Minister ‘being satisfied that an emergency is likely to happen’. [474]
  • In WA, the Fire and Emergency Services Deputy Commissioner Craig Waters declared an emergency situation for the City of Karratha and Shire of Ashburton lasting three days on 9 February 2020, in regard to Tropical Cyclone Damien. [475] No declaration was made in relation to the 2019‑2020 bushfires. [476]
  • No declarations were made for (or for parts of) the NT, Queensland, SA [477] or Tasmania. We note that in Queensland a state of fire emergency was declared on 9 November 2019 by the Minister for Fire and Emergency Services, the Hon. Craig Crawford MP, under the Fire and Emergency Services Act 1990 (Qld) ‘to mitigate public safety risks’. [478] However, there was no declaration of a disaster situation under the Disaster Management Act 2003 (Qld).

Timeline of state and territory emergency declarations made during the 2019‑2020 bushfire season

Figure 19: Timeline of state and territory emergency declarations made during the 2019‑2020 bushfire season

Potential interaction

5.77 The extent to which a national declaration would interact with state and territory emergency management frameworks would depend on the way in which a national declaration is made and its legal effects.

5.78 Where the Australian Government makes a declaration without relying on a referral of power, we envisage that a declaration would sit alongside state and territory frameworks. This is because a declaration would involve the Australian Government taking steps to organise its own resources in responding to the disaster, rather than interfering with state and territory processes. It would not be dependent on the existence of a state or territory declaration. Instead, it would operate to ‘complement existing state and territory emergency declarations and support better national coordination’. [479]

5.79 In the event that national and state and territory frameworks were to interact – for example, if a declaration was made based on a referral of power from the states – the integration of a national declaration within state and territory frameworks could be used to activate state and territory powers and authorities. This would assist in providing certainty in the operation of a national declaration, and would ensure that the frameworks were harmonised for use during an emergency. Integration of a national declaration within state and territory frameworks would, in particular, assist in the event of incapacity of a state to respond to the disaster, including by triggering state powers and the deployment of state or territory resources in the interest of that state or territory.

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