Executive Master ClassDarwin, 2014

Emerging Legal Considerations in Emergency Management

Dr Michael EburnANU College of Law

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What I’ll do

• Review Australia’s emergency oil spill (and other) arrangements.

• With reference to ‘The Deepwater Horizon Oil Spill: The Politics of Crisis Response’ Harvard Kennedy School of Government (2013) (‘Deepwater’).

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Australia’s governments

Commonwealth Government

State and Territory governments

Local Government

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Australia’s governments

Commonwealth Government

State Governments

Territory governments (ACT and NT)

Local Government

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Compare US federal EM law

• Stafford Act.• Principal Federal Officer.• Federal Coordinating Officer.

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With Australian federal EM law

• ‘Soft law’– COMDISPLAN.– NATCATDISPLAN.– Model Arrangements for Leadership During

Emergencies of National Consequence.

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With Australian federal EM law

• ‘Hard law’– Specific Acts like the Protection of the Sea

(Powers of Intervention) Act 1981 (Cth).– No Australian equivalent of the Stafford Act.

(see Eburn, M., 'Managing ‘civil contingencies’ in Australia', (2014) 18(2) International Journal of Human Rights 143-158; and ‘Responding to catastrophic natural disasters and the need for Commonwealth legislation’ (2011) 10(3) Canberra Law Review 81-102).

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State and Territories

• All hazard/all agency response laws– Emergency or Disaster Management

legislation; plus– Specific agency legislation; and– A jurisdiction wide, all hazard response plan.

• And, specific hazard legislation.

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‘Competing legal regimes’

• “The response is at the local level. And then when the locals can’t handle it, it goes to the State. The State provides support, and when it exceeds [the state’s] capacity, they go to the federal government …’ (Deepwater, Part B, p 3).

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In Australia

• The normal response is at state level – even when it’s local it’s the state police, fire and ambulance services. Local government may have some role in clean up of an oil spill on their beach.

• And when they go to the federal government it’s for resources under COMDISPLAN.

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Protection of the Sea (Powers of Intervention) Act 1981 (Cth) • AMSA may take action:

– Where there is a marine casualty that poses a threat of marine pollution by oil (s 8) and substances other than oil (s 9). The casualty may be on ‘the high seas’ or, subject to certain constitutional pre-conditions, in internal waters).

– Anywhere to prevent or mitigate the danger posed by the marine casualty.

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The Australian Constitution, s 109.

• “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”; or

• A state law is invalid if it is inconsistent with a valid Commonwealth law.

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Are they inconsistent?

• And if they are – so what?• AMSA may ‘by law … [be] in charge, but

you tell the head of … that you’re in charge, and you have to do a lot of managing’ (Deepwater, Part A, p 11).

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The MERCOM

• ‘The MERCOM is appointed by AMSA and is supported by statutory powers under the Protection of the Sea (Powers of Intervention) Act 1981’ (National Plan, [3.3]).

• No statute appoints the MERCOM or defines powers. The MERCOM is a delegate of AMSA.

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Compare with Quarantine Act

• Statutory authority to make quarantine directions vested in:– Director of Human Quarantine (s 8A);– Director of Animal and Plant Quarantine (s

8B); and– Chief Quarantine Officers and Quarantine

Officers (ss 9 and 9AA).

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Here’s a room for confusion

• Both the Protection of the Sea (Powers of Intervention) Act 1981 and the Quarantine Act 1908 say that orders can be made under the legislation that is inconsistent with other Commonwealth legislation (s 5 and s 2B respectively) – so who prevails?

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Emerging issues

• Or are they really recurring issues?

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No plan survives contact with the enemy – or ‘nullification’• “… not one of the Gulf governors … would

accept that his own experts had signed off on plans that, essentially, they no longer liked in the harsh light of day” (Deepwater Part B, p 11).

• Consider Victorian Flood Response – following the 2011 floods it was decided that the 2007 flood plan wasn’t adequate so new arrangements had to be created.

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Failure to warn?

• Does your plan deal with the actual problem as well as

• The perceived problem (it’s all political – who’s got the ear of the ‘shock jocks’)?;

• Can we describe that as ‘failure to warn’?‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55.

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Expectations are a legal issue

• What are the communities expectations of government? – Consider the response to ACT Mitchell fire?

Victoria’s Morwell fire?• Of the private sector – ‘Disasters happen’

but is there tolerance of technological disasters?– MH370? What of an oil spill?

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The legal process

• What are the measures of success?• Do we understand risk?

– RTA v Dederer [2007] HCA 42;– NSW Ambulance v Worley [2006] NSWCA

102; – October 2013 Blue Mountains fire.

• Risk, too, is relative.

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Distinguish between litigation and post event inquiries.Bushfire and Natural Hazard CRC research programs:

– ‘Policies, institutions and governance of natural hazards’ (ANU);

– Scientific diversity, scientific uncertainty and risk mitigation policy and planning (UWS).www.bnhcrc.com.au

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Questions? Comments?

Thank you for your attention.

Dr Michael Eburn

ANU College of Law

Australian National University

CANBERRA ACT 0200

P: (02) 6125 6424

E: michael.eburn@anu.edu.au

Blog: emergencylaw.wordpress.com