Emergency Management for Local Government - Legal Issues

Emergency Management for Local Government - Legal Issues

Michael EburnANU College of Law and The Fenner School of Environment & SocietyThe Australian National UniversityCANBERRA

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?

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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.

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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?

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Legislative commands

• ACT – no local government.• NT, SA – no mention of Local Government

responsibilities in disaster management legislation or Local Government Act.

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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; and4. 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.)

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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.

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Emergency Committees or groups

• Develop emergency plans.

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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.

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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])

• What’s left for Local Government?

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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?

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).

Black Saturday

• Matthews v SPI Electricity (No 2)[2011] VSC 168.

• Alleged that police failed to perform their duties under the Emergency Management Act 1986 (Vic).

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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].

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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])

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“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])

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“… 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])

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But see, contra

• Pyreenes Shire Council v Day (1998) 192 CLR 330.

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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)…

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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.”

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Disclosing information

• Can councils be liable for disclosing or withholding risk information?

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Liability for disclosing reasonably accurate, known risk information• There are no reported cases of authorities

being sued for releasing reasonably accurate hazard information.

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To whom would a duty be owed?

• Current owner or potential future owners?• Who is vulnerable? Vulnerable to what?

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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.

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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’ < http://www.cmc.qld.gov.au/data/portal/00000005/content/13206001124751926466.pdf> 6 August 2011

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Liability for disclosing misleading information• Port Stephens v Booth and Gibson

[2005] NSWCA 323.

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The ‘Good faith’ defence…

• It was not good faith in: – Mid Density Developments Pty Ltd v Rockdale

Municipal Council (1993) 44 FCA 408; – Armidale City Council v Finlayson

[1999] FCA 330; or– Port Stephens v Booth and Gibson

[2005] NSWCA 323.

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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)

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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.

Damage

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

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.

Questions?

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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.

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The way we hope the law is…

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Plaintiff wins Defendant wins

The facts

The way it actually is…

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Plaintiff wins Defendant wins

Defendant’s versionPlaintiff’s version

Facts, or law, or both

The big ‘take home’ message

There are legal risks butThere are legal risks in everything we do…Nothing can guarantee you wont be suedNothing can guarantee you’ll win if you are but

The best answer is risk managementLitigation is a dispute resolution processBeing sued is a an opportunity to explain your position – to identify your processes.

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

Questions or comments?

• Thank you for your attention.

Michael EburnE: michael.eburn@anu.edu.auP: 02 6125 6424

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