Emergency Management for Local Government Legal Issues

1. Emergency Management for Local Government Legal Issues Michael Eburn ANU College of Law and Fenner School of Environment & Society

2. Emergency Management Legal issues for local government? • Prevent • Prepare • Respond • Recover

3. Areas of law Administrative law • Review of decision making. Criminal law • Leads to punishment – fines and gaol – not really relevant here. • Inquests and inquiries Tort • negligence, misfeasance in public office, nuisance etc. • Leads to the award of $.

4. Inquiries • Royal Commission • Coronial inquests • Not meant to be adversarial – but often are.

5. Tort - Negligence An action in negligence raises three questions: • Did the defendant owe a duty of care? • Was there a breach of that duty? • Did the breach cause the plaintiff’s damage?

6. Duty of care • Doesn’t arise just because a statute says someone must or may do something. • Difference between statutory duty and statutory power. • An obligation to an individual must be consistent with the Act. • “… 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). • Note the judgment of Alsop P – there are 18 factors to consider.

7. Prevent • Land use planning • Raises issues of: • Information – letting people know they are in a flood risk? • Restrictions – planning to avoid disaster – can you build on the flood plain? What can you build? • What can you do to protect your own property? Is self-help allowed? Is it OK to clear those trees?

8. Examples • Failure by a council to give accurate, or any, information about known risks of exposure to aircraft noise (Port Stephens v Booth and Gibson [2005] NSWCA 323) and contamination (Armidale City Council v Finlayson [1999] FCA 330 ) has led to liability. • No cases of liability for releasing accurate hazard information. • May be liability for inaccurate or misleading information (Port Stephens v Booth and Gibson)

9. Is there liability… • Wollongong City Council v Fregnan [1982] 1 NSWLR 244.a Council “… which follows the practice of supplying information upon which the recipient is likely to rely in circumstances in which it is reasonable for him to do so is under a duty to exercise reasonable care that the information given is correct.”

10. Makawe Pty Limited v Randwick City Council [2009] NSWCA 412 • Council approved a development where the car park was below the water table and so was subject to flooding. Was the council liable to the ultimate purchaser? • No – but the issue isn’t easy. In that case the developer knew of the risk; they drew up the plans and identified the problem and the proposed solution. The council weren’t ‘in control’ and were exercising their statutory power to approve the development, not to approve a good development. • Caveat emptor?

11. Response • Response by Councils? • Have to respond to maintain their services. • What law is relevant? • Consider Queensland 2011? Is ‘law’ the issue? • Response by State agencies • SES, RFS? Link with councils may be different across jurisdictions. Who’s ‘in control’?

12. Recovery • Recovery centres? • The Volunteers? • What are the duties? What could go wrong?

13. Breach of duty • Duty is only to act as the ‘reasonable’ defendant. • It is not a duty to guarantee safety. • The reasonable defendant is not the average defendant – a legal fiction. • Be careful not to apply the ‘retrospectoscope’

14. Wyong Shire v Shirt(1980) 146 CLR 40 [14] ... the reasonable man's response 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.

15. 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.

16. Vairy v Wyong Shire Council[2005] HCA 62 The duty of care which a council owes … is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of … activity.

17. Civil Liability Acts There is only liability if you fail to act as the reasonable authority. The Court must look at: (a)  the probability that the harm would occur if care were not taken, (b)  the likely seriousness of the harm, (c)  the burden of taking precautions to avoid the risk of harm, (d)  the social utility of the activity that creates the risk of harm.

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

19. 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 member (eg RFS/Salvation Army). We need not concern ourselves with that here.

20. Summary – duty of care • A statutory authority, CAN owe a duty of care. • But – must be consistent with the statute • The exercise of ‘quasi-legislative’ powers are beyond judicial review and cannot be subject to a duty of care, neither can decisions regarding ‘… the raising of revenue and the allocation of resources…’

21. Legislation ACT, NSW, Qld, Tas, Vic and WA • the functions required to be exercised by the authority are limited by the financial and other resources • the general allocation of resources is not open to challenge, • The court must consider the whole range of functions that the authority has to perform.

22. The little‘take home’ message Emergency management is subject to law; Legal risk varies with degree of control and impact on individuals. Hard to see any tort issues with ‘planning’ and ‘preparation’, may be low risk at ‘response’, higher at ‘recovery’.

23. 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

24. 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.

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