1. Emergency Management for Local Government - Legal Issues Michael Eburn ANU College of Law and The Fenner School of Environment & Society The Australian National University CANBERRA

2. Risk is the ‘effect of uncertainty on objectives’. (AS/NZS ISO 31000:2009 ‘Risk Management – Principles and guidelines’ [2.1]). What is the ‘risk’ of natural hazards to: –Federal; –State; and –Local; governments? 24 August 2011Emergency Management for Local Government2

3. Local government as ‘victim’ Hazards affect local governments as they affect individuals and business. Disasters impact upon LG staff, assets and infrastructure. Local government need to plan to continue to meet their core tasks. 24 August 2011Emergency Management for Local Government3

4. Local government as ‘government’ What is the role of Local Government in responding to hazard events? What do people expect from Local Government and what is it reasonable to expect? 24 August 2011Emergency Management for Local Government4

5. Legislative commands ACT – no local government. NT, SA – no mention of Local Government responsibilities in disaster management legislation or Local Government Act. 24 August 2011Emergency Management for Local Government5

6. Legislative commands – Except ACT/NT/SA Local Governments must: 1.Have emergency plans; 2.Maintain an emergency management Committee; 3.Support (if not appoint) the local emergency management coordinator; and 4.Perform any other functions allocated under State disaster plans. (State Emergency And Rescue Management Act 1989 (NSW) ss 28-32; Disaster Management Act 2003 (Qld) ss 29-37; 57-62; Emergency Management Act 2006 (Tas) ss 19-24; 34-39; 46-50; Emergency Management Act 2004 (Vic) ss 18-21A; Emergency Management Act 2005 (WA) ss 34-49.)State Emergency And Rescue Management Act 1989 (NSW)Disaster Management Act 2003 (Qld)Emergency Management Act 2006 (Tas)Emergency Management Act 2004 (Vic)Emergency Management Act 2005 (WA) 24 August 2011Emergency Management for Local Government6

7. Emergency plans Identify risks. Identify what local government resources are available to be deployed to assist with emergency response and recovery and local roles and responsibilities. In Victoria, nominate neighbourhood safer places and community fire refuges. 24 August 2011Emergency Management for Local Government7

8. Emergency Committees or groups Develop emergency plans. 24 August 2011Emergency Management for Local Government8

9. Local Controller NSW - Local Emergency Operations CONtroller (LEOCON) is a police officer. Qld - Local Disaster Coordinator is the CEO or employee of Local Government. Tas/Vic - Municipal Emergency Management Coordinator/Resource Officer nominated/appointed by Council. WA - Local Emergency Coordinator appointed by the State Emergency Coordinator. 24 August 2011Emergency Management for Local Government9

10. NSW - LEOCON “coordinate[s] the provision of local level resources in response to requests from a Combat Agency operation”; “is responsible for the control and coordination of emergency response measures where there is no designated Combat Agency within the local government area.” (NSW DISPLAN 2010 [317] & [318])NSW DISPLAN 2010 What’s left for Local Government? 24 August 2011Emergency Management for Local Government10

11. Liability issues – will you be sued? An action in negligence raises three questions: 1.Did the defendant owe a duty of care? 2.Was there a breach of that duty? 3.Did the breach cause the plaintiff’s damage?

12. Duty of care “… the path to defining the circumstances in which a duty of care is owed by one party to another has been a long and tortured one, and has, as yet, no end.” (Makawe Pty Limited v Randwick City Council [2009] NSWCA 412).[2009] NSWCA 412

13. Black Saturday Matthews v SPI Electricity (No 2) [2011] VSC 168. [2011] VSC 168 Alleged that police failed to perform their duties under the Emergency Management Act 1986 (Vic). 24 August 2011Emergency Management for Local Government13

14. Two questions: “(a) Did the legislature in enacting the EMA intend to impose an obligation upon police officers carrying out particular roles and functions pursuant to DISPLAN; and (b) Did the legislature intend to confer a private right upon an individual so that he or she could sue for non-compliance?” [68]. 24 August 2011Emergency Management for Local Government14

15. Or, as Forrest J put it: “… one must ask whether the legislature intended, in imposing an obligation under EMA [or LGA], to benefit a particular class of persons as opposed to the community generally or, to put it another way, was it passed primarily for the general good.” ([68]) 24 August 2011Emergency Management for Local Government15

16. “Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right – to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.” ([76]) 24 August 2011Emergency Management for Local Government16

17. “… the relevant provisions of the EMA … are for the protection of the public as a whole in relation to a wide range of disparate potential emergencies. … I am not persuaded that the EMA, or DISPLAN, can be construed as conferring upon an individual a right of action based upon a failure by a police officer to comply with certain provisions of DISPLAN.” ([84]- [85]) 24 August 2011Emergency Management for Local Government17

18. But see, contra Pyreenes Shire Council v Day (1998) 192 CLR 330.(1998) 192 CLR 330 24 August 2011Emergency Management for Local Government18

19. Civil Liability Legislation (Eg Civil Liability Act 2002 (NSW) s 42) (a) the functions required to be exercised by an authority are limited by the financial and other resources that are reasonably available to the authority … (b) the general allocation of … resources … is not open to challenge, (c) the functions required to be exercised by an authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate)… 24 August 2011Emergency Management for Local Government19

20. Civil Liability Legislation (Eg Civil Liability Act 2002 (NSW) s 43(2)) “… an act or omission … does not constitute a breach of statutory duty unless … [it was] so unreasonable that no authority … could properly consider the act or omission to be a reasonable exercise of its functions.” 24 August 2011Emergency Management for Local Government20

21. Disclosing information Can councils be liable for disclosing or withholding risk information? 24 August 2011Emergency Management for Local Government21

22. Liability for disclosing reasonably accurate, known risk information There are no reported cases of authorities being sued for releasing reasonably accurate hazard information. 24 August 2011Emergency Management for Local Government22

23. 24 August 2011Emergency Management for Local Government23

24. To whom would a duty be owed? Current owner or potential future owners? Who is vulnerable? Vulnerable to what? 24 August 2011Emergency Management for Local Government24

25. Liability for withholding reasonably accurate, known risk information Councils have knowledge that purchasers/owners do not. There may be a duty to give information, but not advice. But see Makawe Pty Limited v Randwick City Council [2009] NSWCA 412.[2009] NSWCA 412 24 August 2011Emergency Management for Local Government25

26. Liability for disclosing inaccurate information Did that motivate Brisbane City Council which withheld information about revised flood levels? One landowner: “… paid top dollar -- more than $500,000 -- for a stately Queenslander … -- in total ignorance of the projected flood levels. … She may not have bought in Chelmer 14 months ago had she known about it. "I think it could have influenced my decision. "I think the report could have put me off buying here without a doubt. "We will be selling by the end of the year.”” Crime and Misconduct Commission (2004) ‘Brisbane River Flood Levels’ 6 August 2011 http://www.cmc.qld.gov.au/data/portal/00000005/content/13206001124751926466.pdf 24 August 2011Emergency Management for Local Government26

27. Liability for disclosing misleading information Port Stephens v Booth and Gibson [2005] NSWCA 323.[2005] NSWCA 323 24 August 2011Emergency Management for Local Government27

28. The ‘Good faith’ defence… It was not good faith in: –Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCA 408;(1993) 44 FCA 408 –Armidale City Council v Finlayson [1999] FCA 330; or[1999] FCA 330 –Port Stephens v Booth and Gibson [2005] NSWCA 323.[2005] NSWCA 323 24 August 2011Emergency Management for Local Government28

29. Breach of duty The reasonable man's response to a risk “… calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.” Wyong Shire Council v Shirt (1980) 146 CLR 40 (Mason CJ) 24 August 2011Emergency Management for Local Government29

30. Gardner v NT [2004] NTCA 14... this Court must be careful not to impose unreasonable expectations and unreasonable duties which are based more on hindsight and a lack of appreciation of the practicalities and difficulties that exist … than a realistic assessment of the care which a reasonably prudent person would exercise in these circumstances.

31. Damage Did the actions/failure cause the damage? What difference would it have made if some other action had been decided upon?

32. Our scenario Can you apply these principals? Do the defendants owe a duty of care to the plaintiff? Did they cause the damage? NOTE: Legislation in all States and Territories impacts on the liability of volunteers and organisations that have volunteer members. We need not concern ourselves with that here.

33. Questions? 24 August 2011Emergency Management for Local Government33

34. The take home message It is for the court to determine where the rights and wrongs are so… Even if the law is on your side you may be sued, but hopefully you’ll win. Law is the scene in which negotiations occur. 24 August 2011Emergency Management for Local Government34

35. The way we hope the law is… 24 August 2011Emergency Management for Local Government35 Plaintiff wins Defendant wins The facts

36. The way it actually is… 24 August 2011Emergency Management for Local Government36 Plaintiff wins Defendant wins Defendant’s version Plaintiff’s version Facts, or law, or both

37. The big ‘take home’ message There are legal risks but There are legal risks in everything we do… Nothing can guarantee you wont be sued Nothing can guarantee you’ll win if you are but

38. The best answer is risk management Litigation is a dispute resolution process Being sued is a an opportunity to explain your position – to identify your processes.

39. Don’t worry about the law … focus on achieving good outcomes for your community.

40. Questions or comments? Thank you for your attention. Michael Eburn E: michael.eburn@anu.edu.aumichael.eburn@anu.edu.au P: 02 6125 6424 24 August 2011Emergency Management for Local Government40