ACT Emergencies Amendment Bill Passes in Response to 2020 Bushfires Review

Thursday 27 August 2020 @ 3.18 p.m. | Legal Research

The Emergencies Amendment Bill 2020 (the Bill) was presented to the ACT Assembly on 20 August 2020 by Mick Gentleman MLA, Minister for Police and Emergency Services (the Minister). The Bill was passed by the Assembly on 27 August 2020 and will amend the Emergencies Act 2004 (the Act) to implement the recommendations of the interim report of the whole of ACT Government review of the effectiveness of the response to the 2019-20 bushfire season. The amendments made by the Bill primarily relate to the appointment of an emergency controller.

Background - Operation of Emergencies Act

The Act establishes a whole of ACT government framework for dealing with all ACT hazards emergency planning and responses. It also provides a framework and authority for the ACT Government and its agencies to undertake prevention, preparation, response and recovery activities in the periods before, during and after an emergency. A key part of the framework is the power of the Chief Minister to declare a state of alert, a state of emergency or appoint an emergency
controller to manage the response to emergencies presenting a significant danger to the people, property, essential services or the environment.

According to the Bill's explanatory statement, the bushfires of 2019-20 and the storm season produced "some of the most unprecedented weather conditions in Australia’s history, impacting large parts of Australia with significant unpredictable fires with dangerous behaviour fueled by hot, dry and windy conditions". As a result, and for the first time, according to the Minister, elements of the ACT’s emergency framework were activated. This activation included the appointment of an emergency controller.

Unprecedented fire activity heavily impacted large swathes of the ACT and surrounding region, and were the toughest the ACT region has had to contend with since 2003. The unprecedented activity was, was according to the explanatory statement, reflected in the 2019-20 bushfire season being the first time the ACT has had to appoint an emergency controller and the first declaration of a state of alert and the first declaration of a state of emergency since the commencement of the Act.

Following the 2019-20 season, on 29 April 2020, the ACT Government announced a review of the bushfire season to review the effectiveness of the whole of Government response. The Final Report of that review concluded that "the overall view of stakeholders was that the legislative framework was sound, and that the Act fulfilled its functions during the 2019-20 bushfire season." 

However, there was a key recommendation from the Report that amendments be made to the Act, to clarify roles provided for in the Act key being to provide greater support to the "emergency controller". The current Bill gives effect to the reports key recommendations.

Changes Made by the Bill

Currently the Act provides two ways for the appointment of an emergency controller to be done. 

First, the Act in section 150A provides that an emergency controller may be appointed if the Chief Minister is satisfied that an emergency has happened, is happening or is likely to happen. In this type of appointment, where the Chief Minister has not declared a state of emergency under the Act section 156, the Act provides that the appointment must be reviewed no later than 48 hours after it is made and the appointment ends seven days after the day it was made.

Second, an emergency controller must be appointed under the Act section 159 if a state of emergency is declared under section 156 of the Act. In this type of appointment there is no requirement to review that appointment, no time limit is placed on the appointment, and the appointment is dependent on the existence of the state of emergency.

The ACT Emergency Services Commissioner was appointed as the emergency controller on 2 January 2020, and because of the extended nature of the emergency, the appointment lasted for 39 consecutive days. Because of this, the review and reappointment of the emergency controller occurred multiple times.

Resulting from the above the Bill:

  • extends the maximum appointment period (where the appointment is not made in conjunction with declaring a state of emergency) to be a maximum of 28 days; and
  • also removes the current obligation on the Chief Minister to review the appointment of the emergency controller (where a state of emergency has not been declared) no later than 48 hours after the appointment was made.

This requirement for the Chief Minister to review the appointment is replaced with a requirement for the emergency controller to advise the Chief Minister and the Minister for Police and Emergency Services at least every seven days about the status of the emergency (for a declared state of emergency) and whether the emergency controller considers the declaration is still justified. 

Further, the Bill imposes a requirement that if the Chief Minister or the Minister decide, based on advice from the emergency controller, that the declaration or appointment is no longer justified, they must revoke the declaration or appointment. Such an obligation to revoke is in addition to their existing discretion to amend the period of appointment or revoke the appointment at any time. According to the explanatory statement:

"These requirements significantly strengthen the human rights framework for the Act, ensuring that any emergency declaration or appointment of an emergency controller, which may see a reasonable limitation on a number of human rights, is limited in duration."

The Bill also:

  • establishes a power for the Chief Minister to appoint a deputy emergency controller to work under the direction of the emergency controller to support the emergency controller, as well as acting for the emergency controller when required (this measure brings the ACT into line with the majority of Australian jurisdictions);
  • makes a number of changes to consolidate the provisions for the appointment, functions and powers of the emergency controller;
  • makes changes to Act provisions differentiating between whether an appointment is made in conjunction with a declaration of a state of emergency or not which create an unnecessary complexity in determining which provision applies at any particular point in time;
  • amends the immunity provisions applying across relevant ACT legislation to include the emergency controller and any person under the control of the emergency controller, conferring broad powers on the emergency controller and chief officers and members of the emergency services to protect and preserve life, property and the environment; and 
  • extends exemptions to the commission of certain offence that may occur under other ACT legislation, to include the emergency controller and persons under the control of the emergency controller. 

In respect of exemptions, while the powers of the emergency controller already operate despite any other ACT law, the Bill is intended to removes any uncertainty as to whether the exemption extends to persons acting under the control of the emergency controller. Legislation affected by this and amended by the Bill is the:

  • Tree Protection Act 2005,
  • Lakes Act 1976, 
  • Water Management and Resource Recovery Act 2016, 
  • Nature Conservation Act 2014, 
  • Environment Protection 1997, 
  • Water Resources Act 2007, 
  • Heritage Act 2004, and 
  • Fuels Rationing Act 2019

In his presentation speech the Minister indicates that the Bill demonstrates the government's willingness to improve emergency services:

"While we did well, we can improve. This Bill is one example of this, and we will continue to improve as we prepare for the next bushfire season, which is coming ever closer."

At the time of writing, the Bill is awaiting notification.

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