Dr Michael EburnSenior FellowANU College of Law and Fenner School of Environment and SocietyAustralian National UniversityCANBERRA ACT 0200P: + 61 2 6125 6424E: michael.eburn@anu.edu.au

Australian emergency management arrangements and law

Australian disaster law

• A developing field

Australia and the USA

http://petergrantfineart.wordpress.com/2010/06/21/the-size-of-australia-vs-usa/

Australia

• 8 jurisdictions (6 states; 2 self governing territories).

• All police, fire, ambulance and State Emergency Services are state based.

• Most Australians live along the Eastern Sea board, within 50kms of the coast.

Risks

• Australia faces all manor of risks:– Tropical cyclones – Floods– Severe storms– Bushfire (or wildfire)– Landslides– Earthquake– Tsunami

Australian emergency management• Australia, like the US is a federation with

three tiers of government– Federal– State and – Local

Primary responsibility

• Lies with State governments.• The federal government supports the

states by the provision of resources, primarily in the ‘response’ phase but also some grants available for hazard mitigation.

• Significant commonwealth funding in recovery through NDRRA.

National policy

• Is set cooperatively through Council of Australian Governments rather than by the Commonwealth.

• There is no Federal emergency management legislation (no equivalent to the Stafford Act).

States

• Are responsible for– Land use and planning law;– The operation of the emergency services;– The establishment and empowerment of local

government.

National policy

• National Strategy for Disaster Resilience (2011)

• Key concepts are ‘Shared responsibility’ and ‘resilient communities’.

Governments will improve resilience by:• developing and implementing effective, risk-based land management and

planning arrangements and other mitigation activities; • having effective arrangements in place to inform people about how to

assess risks and reduce their exposure and vulnerability to hazards; • having clear and effective education systems so people understand what

options are available and what the best course of action is in responding to a hazard as it approaches;

• supporting individuals and communities to prepare for extreme events; • ensuring the most effective, well-coordinated response from our emergency

services and volunteers when disaster hits; and • working in a swift, compassionate and pragmatic way to help communities

recover from devastation and to learn, innovate and adapt in the aftermath of disastrous events.

Translating the policy to action…

‘… the problem with shared responsibility is what’s shared and what’s not – who’s responsible for what?’

‘… we’re saying we’re building resilient communities more for the sake of saying we’re doing something rather than the reality of actually doing something.’

Barriers to resilience

1. The emergency services are very good at what they do. They are victims of their own success.

2. Increased urbanisation – ‘sea change’ and ‘tree change’.

3. Risk aversion.

‘If I think about every time we get a storm these days, if a tree falls over somebody's front fence or their garage, immediately they ring the SES [State Emergency Service]. So the SES … now are seeing much more demand. I think that's because the government has done a fantastic job - and these agencies, done a fantastic job in marketing themselves and telling them that they're around. So, instead of people saying, listen I'll sort that out, their immediate response is to ring the SES and they'll come and cut it down for them…

I think that's what's happening in fire too… a lot of our research is saying that people are still going to hang around until the last minute and generally they're going to want answers and somebody to tell them what to do.’

Managing for emergencies conflicts with other desires and priorities‘If you step back and you say, well, how could we have prevented that fire? Here’s the strategy … Clear every tree for 100 metres each side of the road winding up … all that littoral forest and beautiful tall timber … Get rid of all the timber cottages in the village. They’re 100 years old … made of timber and highly volatile. Put brick and concrete structures in place. Put perimeter hazard reduction around the village every two years … I can tell you now if we had put that strategy in place the public would have said f___ off … So if you step back and look at where [place name] sat in the landscape, and you look at the forest and 10 years of drought and accumulated fuel loads … what part of inevitability didn’t we get here?’

Litigation

• Issues of legal liability are still uncertain• There is relatively little ‘post event’

litigation.• Tort immunity of government largely

abolished – so governments can be sued.

But

• Determining the duty of government agencies has proved difficult.

• Although litigation involving governments is meant to be resolved as it is between people, governments are different.

• Australian courts have not favoured the policy/operational distinction.

The High Court of Australia

‘One day this Court may express a universal principle to be applied in determining such cases. Even if a settled principle cannot be fashioned, it would certainly be desirable for the Court to identify a universal methodology or approach, to guide the countless judges, legal practitioners, litigants, insurance companies and ordinary citizens in resolving contested issues about the existence or absence of a duty of care, the breach of which will give rise to a cause of action enforceable under the common law tort of negligence.’ Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, [211] (Kirby J).

Post disaster (wildfire) litigation is uncommon• The usual ‘targets’

– 1867-1997 Landowners;– 1884-1979 Railway companies– From 1977 Electrical utilities– From 1995 State government emergency

servicesSee Eburn & Dovers (2012) ’Australian wildfire litigation’ International Journal of Wildland Fire 21, 488–497.

Litigation

• Against state (fire) agencies has been unsuccessful; see– Gardner v The Northern Territory (2004) NTCA 14

– Southern Properties v CALM [No 2] [2010] WASC 45

– Warragamba Winery v New South Wales [2012] NSWSC 701

– Myer v State Fire Commission (Tasmania) [2012] TASSC 54

Emerging issues

• ‘Fail to warn’ (see Eburn M 'Litigation for failure to warn of natural hazards and community resilience' (2008) 23 Australian Journal of Emergency Management 9-13; ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55).

• Floods – and dam management (Queensland 2011 floods).

Paying for it all

• Because our emergency services/emergency management are government funded, liability if established shifts the costs to all taxpayers.

Myer Stores v Tas State Fire Commission [2012] TASSC 54‘At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured.  That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public.’

Is insurance the answer…

• My colleague, Rachel Carter from La Trobe University in Melbourne will address issues in relation to disaster insurance.