EMERGENCY MANAGEMENT BILL 2004

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Interpretation

4 Application of Act

5 Interaction with other Acts

Part 2—State Emergency Management Committee

6 Establishment of State Emergency Management Committee

7 Terms and conditions of membership

8 Vacancies or defects in appointment of members

9 Functions and powers of SEMC

10 Proceedings of SEMC

11 Establishment of advisory groups by SEMC

12 Delegation

13 Annual report by SEMC

Part 3—The State Co-ordinator

14 Appointment of State Co-ordinator

15 Functions and powers of State Co-ordinator

16 Assistant State Co-ordinators

17 Authorised officers

18 Delegation

Part 4—The management of emergencies

Division 1—Co-ordinating agency

19 Co-ordinating agency

Division 2—Control agency

20 Control agency

Division 3—Declaration of emergencies

21 Publication of guidelines

22 Identified major incidents

23 Major emergencies

24 Disasters

Division 4—Powers that may be exercised in relation to declared emergencies

25 Powers of State Co-ordinator and authorised officers

26 Disconnection of gas or electricity

Division 5—Recovery operations

27 Recovery operations

Part 5—Offences

28 Failure to comply with directions

29 Obstruction

30 Impersonating an authorised officer etc

31 Disclosure of information

Part 6—Miscellaneous

32 Protection from liability

33 Employment

34 Evidentiary

35 Offences by bodies corporate

36 Insurance policies to cover damage

37 State Emergency Relief Fund

38 Regulations

Schedule 1—Related amendments, repeal and transitional provisions

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Emergency Management Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

In this Act, unless the contrary intention appears—

appointed member of SEMC means a member of SEMC appointed by the Governor under section 6(2)(f);

Assistant State Co-ordinator—see section 16;

authorised officer means a police officer or a person appointed as an authorised officer under section 17;

control agency—see section 20;

co-ordinating agency—see section 19;

disaster—see section 24;

emergency means an event that causes, or threatens to cause—

(a) the death of, or injury or other damage to the health of, any person; or

(b) the destruction of, or damage to, any property; or

(d) harm to the environment, or to flora or fauna;

Note—

This is not limited to naturally occurring events (such as earthquakes, floods or storms) but would, for example, include fires, explosions, accidents, epidemics, hi-jacks, sieges, riots, acts of terrorism or other hostilities directed by an enemy against Australia

identified major incident—see section 22;

major emergency—see section 23;

recovery operations means any measures taken during or after an emergency to assist the re-establishment of the normal pattern of life of individuals, families and communities affected by the emergency and includes—

(a) the restoration of essential facilities and services; and

(b) the restoration of other facilities and services necessary for the normal functioning of a community; and

(d) the provision of means of emotional support;

response operations means any measures taken during an emergency to protect life or property or to otherwise respond to the emergency;

SEMC means the State Emergency Management Committee established under Part 2;

State Co-ordinator—see section 14;

State Emergency Management Plan means a plan (or a series of plans) prepared by SEMC in accordance with section 9 and comprising strategies for the prevention of emergencies in the State and for ensuring that the State is adequately prepared for emergencies, including strategies for the containment of emergencies, the co-ordination of response and recovery operations and the orderly and efficient deployment of resources and services in connection with response and recovery operations;

vehicle includes an aircraft or vessel.

4—Application of Act

This Act does not authorise the taking of measures to bring an industrial dispute to an end or to control civil disorders (not being civil disorders resulting from, and occurring during the continuance of, a declared major emergency or disaster).

5—Interaction with other Acts

(1) Subject to this section, this Act is in addition to and does not limit, or derogate from, the provisions of any other Act.

(2) Where the provisions of this Act are inconsistent with any other Act or law, this Act prevails to the extent of the inconsistency.

Part 2—State Emergency Management Committee

6—Establishment of State Emergency Management Committee

(1) The State Emergency Management Committee (SEMC) is established.

(2) SEMC consists of the following members:

(a) the presiding member, being the person for the time being holding or acting in the position of chief executive of the administrative unit that has, subject to the Minister, responsibility for administering this Act;

(b) the State Co-ordinator;

(d) the Chief Officer of the South Australian Metropolitan Fire Service;

(e) the Chief Officer of the South Australian State Emergency Service;

(f) not more than 14 persons appointed by the Governor of whom—

(i) not more than 11 are to be appointed on the nomination of the Minister; and

(ii) one is to be appointed on the nomination of the Minister, being selected from a panel of three persons submitted by the Commissioner of Police; and

(iii) one is to be appointed on the nomination of the Minister, being selected from a panel of three persons submitted by the governing body of the S.A. St. John Ambulance Service Inc.; and

(iv) one is to be appointed on the nomination of the Minister, being selected from a panel of three persons submitted by the Local Government Association of South Australia.

(3) The Minister may, by notice in writing, request a person or body referred to in subsection (2)(f) to submit, within a time specified in the notice (which must be reasonable), a panel of names for the purposes of that subsection.

(4) Where a person or body fails to comply with a request under subsection (3) within the specified time, the Minister may select a person for appointment as a member of SEMC, and a person so selected may then be appointed to SEMC as if his or her name had been duly submitted by the person or body to whom the notice was addressed.

(5) A person or body referred to in subsection (2)(f) must, in constituting a panel for the purposes of that subsection, submit the name of at least one man and one woman.

(6) The Governor may appoint a suitable person to be the deputy of a member of SEMC (including an ex officio member of SEMC) and that person may, in the absence of that member, act as a member of SEMC.

7—Terms and conditions of membership

(1) A member of SEMC, other than an appointed member, holds office ex officio.

(2) An appointed member of SEMC will be appointed on conditions determined by the Governor and for a term specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.

(3) A member of SEMC is entitled to allowances and expenses determined by the Governor.

(4) The Governor may remove an appointed member of SEMC from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for misconduct; or

(5) The office of an appointed member of SEMC becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) is removed from office under subsection (4).

8—Vacancies or defects in appointment of members

(1) An act or proceeding of SEMC is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

(2) On the office of an appointed member of SEMC becoming vacant, a person must be appointed in accordance with this Act to the vacant office.

9—Functions and powers of SEMC

(1) SEMC has the following functions:

(a) to provide leadership and maintain oversight of emergency management planning in the State;

(b) to prepare and keep under review the State Emergency Management Plan;

(c) to provide advice to the Minister in relation to the operation of this Act and the management of emergencies in the State;

(d) to undertake risk assessments relating to emergencies or potential emergencies where SEMC thinks fit or where requested by the Minister;

(e) to ensure that agencies and organisations with functions under the State Emergency Management Plan are aware of those functions and are provided with adequate information for the purpose of understanding and carrying out those functions;

(f) to monitor the capacity of agencies and organisations with functions under the State Emergency Management Plan to properly carry out those functions;

(g) to co-ordinate the development and implementation of strategies and policies relating to emergency management (including strategies and policies developed at a national level and agreed to by the State);

(h) if an identified major incident, a major emergency or a disaster is declared under this Act—to monitor and evaluate the implementation of the State Emergency Management Plan and the response and recovery operations taken during or following the emergency;

(i) to perform any other functions assigned to SEMC by this Act or by the Minister.

(2) SEMC may, for the purposes of preparing and implementing the State Emergency Management Plan—

(a) create such offices as it thinks fit and appoint persons to those offices; and

(b) assign additional functions to the State Co-ordinator and, with the approval of the State Co-ordinator, assign functions to any Assistant State Co-ordinators.

10—Proceedings of SEMC

(1) The presiding member will, if present at a meeting of SEMC, preside at that meeting and in the absence of that member—

(a) if the State Co-ordinator is present at the meeting, the State Co-ordinator will preside; or

(b) if the State Co-ordinator is not present at the meeting—the members present will decide who is to preside.

(2) A quorum of SEMC consists of one half the total number of its members (ignoring any fraction resulting from the division) plus one.

(3) A decision carried by a majority of the votes cast by the members present at a meeting is a decision of SEMC.

(4) Each member present at a meeting of SEMC has one vote on a matter arising for decision and, if the votes are equal, the member presiding at the meeting may exercise a casting vote.

(5) A conference by telephone or other electronic means between the members of SEMC will, for the purposes of this section, be taken to be a meeting of SEMC at which the participating members are present if—

(a) notice of the conference is given to all members in the manner determined by SEMC for the purpose; and

(b) each participating member is capable of communicating with every other participating member during the conference.

(6) A proposed resolution of SEMC becomes a valid decision of SEMC despite the fact that it is not voted on at a meeting of SEMC if—

(a) notice of the proposed resolution is given to all members of SEMC in accordance with procedures determined by SEMC; and

(b) a majority of the members express concurrence in the proposed resolution by letter, telegram, telex, facsimile transmission or other written communication setting out the terms of the resolution.

(7) SEMC must have accurate minutes kept of its meetings.

(8) Subject to this Act, SEMC may determine its own procedures.

11—Establishment of advisory groups by SEMC

(1) SEMC may, at any time, establish advisory groups—

(a) to advise SEMC on any matter; or

(b) to carry out functions on behalf of SEMC.

(2) SEMC must, as soon as practicable after the commencement of this Act, establish an advisory group to advise SEMC in relation to recovery operations.

(3) The membership of an advisory group will be determined by SEMC and may, but need not, consist of, or include, members of SEMC.

(4) SEMC will determine who will be the presiding member of an advisory group.

(5) The procedures to be observed in relation to the conduct of the business of an advisory group will be—

(a) as determined by SEMC; and

(b) insofar as a procedure is not determined under paragraph (a)—as determined by the advisory group.

12—Delegation

(1) SEMC may delegate any of its functions or powers under this Act—

(a) to a member of SEMC; or

(b) to an advisory group established by SEMC; or

(d) to any other person or body.

(2) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(d) is revocable at will by SEMC.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

13—Annual report by SEMC

(1) SEMC must, on or before 30 September in each year, present a report to the Minister on the operations of SEMC during the preceding financial year.

(2) The Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before both Houses of Parliament.

Part 3—The State Co-ordinator

14—Appointment of State Co-ordinator

The person for the time being holding or acting in the position of Commissioner of Police is appointed as the State Co-ordinator.

15—Functions and powers of State Co-ordinator

The State Co-ordinator has the following functions:

(a) to manage and co-ordinate response and recovery operations in accordance with this Act and the State Emergency Management Plan;

(b) if an identified major incident, a major emergency or a disaster is declared under this Act—to ensure SEMC is provided with adequate information in order to fulfill its monitoring functions under this Act;

16—Assistant State Co-ordinators

(1) The State Co-ordinator may, at any time, appoint one or more Assistant State Co-ordinators to exercise powers and functions under this Act in relation to—

(a) specific parts of the State; or

(b) specific types of hazards; or

(2) The State Co-ordinator must, as soon as practicable after the declaration of an identified major incident, a major emergency or a disaster under this Act, appoint an Assistant State Co-ordinator to exercise powers and functions in relation to recovery operations.

(3) An Assistant State Co-ordinator will be appointed for such term and on such conditions as the State Co-ordinator may determine.

(4) An Assistant State Co-ordinator has the functions and powers delegated to the Assistant Co-ordinator by the State Co-ordinator or assigned to the Assistant Co-ordinator by SEMC with the approval of the State Co-ordinator.

17—Authorised officers

(1) The State Co-ordinator may appoint, individually or by class, such persons to be authorised officers for the purposes of this Act as the State Co-ordinator thinks fit.

(2) An authorised officer, other than a police officer, must be issued with an identity card in a form approved by the State Co-ordinator—

(a) containing the person's name and a photograph of the person; and

(b) stating that the person is an authorised officer for the purposes of this Act.

(3) An authorised officer must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for the inspection of the person—

(a) in the case of an authorised officer who is a police officer and is not in uniform—his or her certificate of authority; or

(b) in the case of an authorised officer who is not a police officer—his or her identity card.

(4) An authorised officer must, on ceasing to be an authorised officer for any reason, surrender his or her identity card and any insignia or special apparel or equipment issued to the authorised officer for the purposes of this Act to the State Co-ordinator or a person nominated by the State Co-ordinator.

Maximum penalty: $1 250.

18—Delegation

(1) The State Co-ordinator may delegate any of his or her functions or powers under this Act—

(a) to an Assistant State Co-ordinator; or

(b) to the person for the time being holding or acting in particular office or position; or

(2) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(d) is revocable at will by the State Co-ordinator.

Division 3—Declaration of emergencies

21—Publication of guidelines

SEMC may publish guidelines setting out circumstances in which an emergency should be declared, under this Division, to be an identified major incident, a major emergency or a disaster.

22—Identified major incidents

(1) If it appears to the State Co-ordinator that the nature or scale of an emergency that has occurred, is occurring or is about to occur is such that it should be declared to be an identified major incident, the State Co-ordinator may declare the emergency to be an identified major incident.

(2) A declaration under this section—

(a) may be made orally (but if made orally must, as soon as is reasonably practicable, be reduced to writing and a copy provided to the Minister); and

(b) subject to this section, remains in force while response operations are being carried out in relation to the emergency (but not for a period exceeding 12 hours).

(3) The State Co-ordinator may, at any time, revoke a declaration under this section.

23—Major emergencies

(1) If it appears to the State Co-ordinator that a major emergency has occurred, is occurring or is about to occur, the State Co-ordinator may declare the emergency to be a major emergency (whether or not the emergency has previously been declared to be an identified major incident under section 22).

(2) A declaration under this section—

(a) must be in writing and published in a manner and form determined by the Minister; and

(b) remains in force for a period specified in the declaration (which must not exceed 48 hours); and

24—Disasters

(1) If it appears to the Governor that a major emergency has occurred, is occurring or is about to occur and the Governor is satisfied that the nature or scale of the emergency is, or is likely to be, such that it should be declared to be a disaster under this section, the Governor may (whether or not the emergency has previously been declared to be an identified major incident under section 22 or a major emergency under section 23) declare the emergency to be a disaster.

(2) A declaration under this section—

(a) must be made in writing and published in a manner and form determined by the Minister; and

(b) subject to this section, remains in force for 96 hours.

(3) A declaration under this section may be renewed or extended on the authority of a resolution of both Houses of Parliament, but in the absence of such an authority, cannot be renewed or extended.

(4) The Governor may, at any time, revoke a declaration under this section.

Division 4—Powers that may be exercised in relation to declared emergencies

25—Powers of State Co-ordinator and authorised officers

(1) On the declaration of an identified major incident, a major emergency or a disaster under Division 3, and while that declaration remains in force, the State Co-ordinator must take any necessary action to implement the State Emergency Management Plan and cause such response and recovery operations to be carried out as he or she thinks appropriate.

(2) Without limiting or derogating from the operation of subsection (1), but subject to the regulations, the State Co-ordinator or an authorised officer may, if of the opinion that it is necessary to do so, do or cause to be done all or any of the following things:

(a) enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary);

(b) take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing;

(c) remove or destroy, or order the destruction of, any building, structure, vehicle, vegetation or seriously injured animal;

(d) direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person;

(e) remove, or cause to be removed, to such place as the State Co-ordinator or authorised officer thinks fit, any person or animal, or direct the evacuation or removal of any person or animal;

(f) direct or prohibit the movement of persons, animals or vehicles;

(g) remove flammable material or any other hazardous material or cause flammable material or any other hazardous material to be removed from any place, building or structure;

(h) cause any supply of fuel or other flammable liquid, any gas or electricity or any other hazardous material to be shut off or disconnected;

(i) direct a person who is in a position to do so—

(i) to stop any work or operation; or

(ii) to close any premises or other place; or

(iii) to contain the escape of any hazardous material, or to nullify the effects of the escape of any hazardous material; or

(iv) to shut off or remove any plant, equipment, apparatus or device or to perform any operation in relation to any plant, equipment, apparatus or device;

(j) shut off, or cut off, the supply of water or any drainage facility;

(k) make use of the gratuitous services of any person;

(l) remove to such place as he or she thinks fit any person who obstructs or threatens to obstruct response or recovery operations;

(m) direct, insofar as may be reasonably necessary in the circumstances, any person (other than a control agency or other person referred to in paragraph (n)) to assist in the exercise of any power under this section;

(n) in the case of a major emergency or disaster—give directions to any control agency or person whose responsibilities require him or her to engage in response or recovery operations, or who is so engaged;

(o) exercise any prescribed power.

26—Disconnection of gas or electricity

A person or company supplying gas or electricity to any premises or other place must, at the direction of the State Co-ordinator or an authorised officer under this Division, send a competent person to shut off or disconnect the supply of gas or electricity to the premises or other place, or to any adjacent premises or place (and the person so attending must then comply with any direction that may be given in the exercise of powers under this Division).

Division 5—Recovery operations

27—Recovery operations

(1) The State Co-ordinator may, at any time after the declaration of an identified major incident, a major emergency or a disaster under Division 3, direct authorised officers to take specified action for the purposes of carrying out recovery operations in accordance with the State Emergency Management Plan.

(2) An authorised officer may be assisted by volunteers in carrying out recovery operations under this section and may give such directions to a volunteer as the officer thinks necessary for that purpose.

(3) A recovery operation under this section cannot be carried out on private land unless—

(a) the owner of the land consents to the operation being carried out on the land; or

(b) the State Co-ordinator is satisfied that it is not reasonably practicable to seek the consent of the owner of the land (because the owner cannot be located or for any other reason) or that the consent of the owner is being unreasonably withheld.

(4) Where—

(a) the State Co-ordinator is satisfied that it is necessary or expedient that particular work be carried out in the course of a recovery operation under this section; and

(b) a person has (apart from this section) a duty to carry out the work or a legal liability in respect of carrying out the work,

the State Co-ordinator may cause the work to be carried out and recover, as a debt from the person, the reasonable costs of carrying out the work.

(5) For the purposes of subsection (4)—

(a) if an independent contractor is engaged for the purpose of carrying out the work—the reasonable costs of carrying out the work will be taken to be the actual costs of engaging the contractor (and in any proceedings under subsection (4) a certificate apparently signed by the State Co-ordinator certifying the costs of engaging the contractor is, in the absence of proof to the contrary, to be accepted as proof of the costs so certified); or

(b) in any other case—the reasonable costs of carrying out the work are to be assessed by reference to the reasonable costs that would have been or would be incurred in having the action taken by an independent contractor engaged for that purpose.

Part 6—Miscellaneous

32—Protection from liability

(1) No civil or criminal liability will attach to the State Co-ordinator, an authorised officer or other person for an act or omission in good faith—

(a) in the exercise or discharge, or purported exercise or discharge, of a power or function under this Act; or

(b) in the carrying out of any direction or requirement given or imposed in accordance with this Act in relation to an emergency.

(2) A liability that would, but for subsection (1), lie against a person lies instead against the Crown.

33—Employment

A person who is absent from employment on official duties in connection with response or recovery operations undertaken in accordance with this Act is not liable to be dismissed or prejudiced in employment by reason of that absence.

34—Evidentiary

In any proceedings, a document—

(a) purporting to be signed by the State Co-ordinator and certifying that a person named, or referred to, in the document was, on a specified date, an authorised officer; or

(b) purporting to be signed by the State Co-ordinator and certifying that a declaration of an identified major incident or major emergency was in force in respect of a specified emergency on a specified day or during a specified period; or

(c) purporting to be signed by the Minister and certifying that a declaration of a disaster was in force in respect of a specified emergency on a specified day or during a specified period,

is, in the absence of proof to the contrary, proof of the facts so certified.

35—Offences by bodies corporate

(1) If a body corporate commits an offence against this Act, any director or manager of the body corporate is also guilty of an offence and liable to the same penalty as may be imposed for the principal offence when committed by a natural person unless it is proved that he or she could not, by the exercise of reasonable diligence, have prevented the commission of the principal offence by the body corporate.

(2) A person may be prosecuted and convicted of an offence under this section whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.

36—Insurance policies to cover damage

All policies of insurance against damage or loss of property caused by, or occurring during the course of, an emergency will be taken to extend to damage or loss arising from measures taken by any person acting in pursuance of an authority conferred by or under this Act at the scene of the emergency.

37—State Emergency Relief Fund

(1) The State Disaster Relief Fund continues in existence as the State Emergency Relief Fund (the fund).

(2) Any money received by the Minister for the relief of persons who suffer injury, loss or damage as a result of an emergency in respect of which a declaration under this Act is made must be paid into the fund.

(3) The Minister may appoint a committee of persons to administer the fund.

(4) A committee appointed for the purposes of this section will administer the fund subject to the directions of the Governor.

(5) Subject to this section, no money received by the fund in respect of a particular emergency may be disbursed otherwise than to, or for the purpose of the relief of, persons who suffered injury, loss or damage as a result of that emergency.

(6) Where the committee is satisfied that it has made sufficient payment to all persons who suffered injury, loss or damage as a result of a particular emergency, the committee may, with the approval of the Governor, leave the balance of the money in the fund for the relief of persons who suffer injury, loss or damage in some future emergency.

(7) Where the committee is of the opinion that a person who suffered injury, loss or damage as a result of an emergency has been overcompensated for that injury, loss or damage by reason of being paid—

(a) money from the fund; and

(b) damages or compensation from another source,

the committee may, by notice in writing given personally or by post to the person, require the person to pay to the fund the amount of the overcompensation as determined by the committee and specified in the notice.

(8) A person who is given a notice under subsection (7) is liable to pay to the fund, as a debt due to the Crown, the amount specified in the notice within the time specified in the notice (being a period of not less than one month from the day on which the notice is given).

(9) Money paid to the fund pursuant to subsection (8) may be disbursed for the relief of persons who suffered injury, loss or damage as a result of the emergency in respect of which the money was first paid, or of any future emergency.

(10) No money in the fund may be used to defray the administrative costs of administering the fund.

38—Regulations

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act or as are necessary in consequence of conditions directly or indirectly caused by an emergency in respect of which a declaration under this Act is made.

(2) Without limiting the generality of subsection (1), the regulations may—

(a) apply generally or to a particular case or class of case; and

(b) apply throughout the State or within a particular part of the State; and

Part 1—Related amendments

1—Amendment of Electricity Act 1996

(1) Section 54—after "under the" insert:

Emergency Management Act 2004,

(2) Section 54—delete ", State Disaster Act 1980"

2—Amendment of Essential Services Act 1981

Section 6(3)(b) and (6)(a)(ii)—delete "State Disaster Act 1980" wherever occurring and substitute in each case:

Emergency Management Act 2004

3—Amendment of Gas Act 1997

(1) Section 54—after "under the" insert:

Emergency Management Act 2004,

(2) Section 54—delete ", State Disaster Act 1980"

4—Amendment of Local Government Act 1999

Section 298(5)—delete "is in force in relation to the area of the council under the State Disaster Act 1980" and substitute:

under the Emergency Management Act 2004 is in force in relation to flooding in the area of a council,

5—Amendment of Summary Offences Act 1953

Section 83B(11)(a)—delete "State Disaster Act 1980" and substitute:

Emergency Management Act 2004

Part 2—Repeal

6—Repeal of State Disaster Act 1980

The State Disaster Act 1980 is repealed.

Part 3—Transitional provisions

7—Continuation of State Disaster Plan

(1) The State Disaster Plan prepared under the State Disaster Act 1980, as in force immediately before the commencement of this clause, continues as the State Emergency Management Plan under this Act until altered or replaced by SEMC in accordance with this Act.

(2) SEMC must, as soon as reasonably practicable after the commencement of this Act, cause a review of the plan continued in operation under subclause (1) for the purpose of determining whether it should be altered or replaced.

South Australian Bills

EMERGENCY MANAGEMENT BILL 2004