Emergency Management Act 2005

The Act casts a wide net. At the apex, the Minister, Premier, State Emergency Coordinator (Police Commissioner), SEMC members, and State Disaster Council members exercise high-level declaration, direction, and policy functions. Hazard management agencies—public authorities or persons prescribed under s. 4(1) for particular hazards in defined areas—declare emergency situations (s. 50), authorise officers (s. 55), and revoke declarations (s. 53). Combat agencies and support organisations prescribed under s. 6 perform operational or support roles.

Public authorities, defined broadly in s. 3 to include public sector agencies, bodies established for public purposes, local governments, the Police Force, and prescribed entities, must comply with SEMC directions (s. 20), State policies and plans, and Coordinator directions during a state of emergency (s. 74). They may also be designated to perform local government functions (s. 35).

Local governments bear concrete duties: preparing and maintaining local emergency management arrangements (s. 41), establishing local emergency management committees (s. 38), appointing or consulting on coordinators (s. 37), managing recovery (s. 36(b)), and exercising cyclone powers (Part 3 Division 3). Their committees and coordinators report annually (ss. 40, 33).

Hazard management officers (s. 55) and authorised officers (s. 61) exercise the coercive powers in Part 6 and must carry identification where practicable (s. 62). Police officers have additional powers under s. 71 and inherit immunities.

Individuals and businesses are affected as owners, occupiers (defined by reference to the Local Government Act 1995), or persons in emergency areas. They may be directed to evacuate, remain quarantined, submit to decontamination, provide identifying particulars, close premises, assist officers, or refrain from obstructing (ss. 67, 70, 75, 86). Employers must protect emergency-response volunteers from victimisation and maintain service continuity for leave calculations (ss. 92–93). Volunteers themselves, including those carrying out prescribed emergency activities under regulations (s. 101), receive employment protection and may be covered by mandated insurance.

The broader community benefits from information exchange for welfare services (s. 72) and compensation entitlements (s. 78), but faces offences for non-compliance, false information, or impersonation (Part 8). Bodies corporate and their officers attract extended liability rules (ss. 97–98).

Finally, the State itself is bound, funds compensation and expenses from the Consolidated Account (ss. 82, 96), and provides facilities to the SEMC (s. 24). The Act therefore affects every level of government, prescribed agencies, private landowners, employers, employees, and volunteers across the State.

Duties are distributed asymmetrically. The SEMC must arrange preparation of policies and plans (ss. 17–18), review them (s. 19), advise the Minister (s. 14(a)), coordinate risk strategies (s. 14(e)), and direct public authorities (s. 20). Public authorities given roles under policy must comply and respond to directions to prepare, review, or test plans (s. 20(3)–(4)). Local governments must prepare arrangements consistent with State documents, including recovery plans (s. 41), review them (s. 42), and make them publicly available (s. 43). Hazard management agencies must consult per policy before declaring an emergency situation (s. 50(4)), notify coordinators (s. 50(5)), revoke when powers are unnecessary (s. 53(1)), and ensure officers comply with their directions (s. 55(6)).

Officers owe duties to act only within authorisation terms (ss. 55(5), 61(5)), comply with superior directions (ss. 55(6), 61(6)), and confirm oral directions in writing within two working days (s. 77(2)). Police must avoid conflict with hazard management or Coordinator directions (s. 71(3)).

Individuals and occupiers must comply with directions under ss. 47, 67, 70, 71, 75(1)(i) (s. 86(1)), provide reasonable help when required (s. 75(1)(o) and s. 87), and avoid obstruction, false information, or false compensation claims (ss. 85, 89, 90). Employers must not victimise emergency-response volunteers (s. 93(1)).

Rights are primarily protective. Persons suffering loss from specified property powers are entitled to "just and reasonable" compensation unless insurance covers it, their conduct contributed, or the loss would have occurred anyway (s. 78). Applications are made to the Minister (s. 79), with Tribunal review (s. 83). Insurance policies are statutorily extended (s. 84), rendering contrary terms void.

Employment rights are preserved: continuity for leave calculations and paid absence at ordinary rates during voluntary emergency response (s. 92). Volunteers receive potential regulatory compensation and insurance (s. 101). Officials and the State enjoy broad tort immunity for good-faith acts (s. 100), though motor vehicle third-party insurance liabilities are preserved.

Procedural rights include the requirement for reasonable consultation before declarations (s. 50(4)), notice of declarations (ss. 54, 60), and the ability to challenge compensation decisions. Class directions need not be served individually if published suitably (s. 77(2A)). Persons given cyclone directions may seek court contribution orders from owners or occupiers (s. 48(4)–(7)). Confidentiality is protected except for statutory purposes (s. 95).

The Act itself is subject to five-yearly review (s. 103), giving the community an indirect right to influence its future operation.

Part 8 creates a suite of strict offences. Obstructing or hindering a hazard management officer or authorised officer carries a $50,000 fine (s. 85). Failure to comply with a direction under ss. 47, 67, 70, 71 or 75(1)(i) is punishable by 12 months imprisonment or $50,000, plus $5,000 for each continuing offence under Interpretation Act 1984 s. 71; a reasonable excuse defence exists (s. 86). Failure to give reasonable help under s. 75(1)(o) attracts $50,000 (s. 87). Impersonation, giving false or misleading information, and false compensation claims each carry $50,000 fines (ss. 88–90).

Employment victimisation under s. 93 can result in Magistrates Court orders for reinstatement, compensation (capped at six months' remuneration or $5,000), or a fine up to $50,000 payable to the Treasurer, with continuing offence provisions (s. 94). Confidentiality breaches incur $12,000 and one year imprisonment (s. 95). Identification card non-return by former authorised officers is $1,000 (s. 62(4)). Electronic monitoring interference or non-compliance carries 12 months imprisonment or $12,000 (s. 70A(6)–(7)).

Regulatory offences under volunteer compensation rules may attract up to $50,000 plus continuing penalties (s. 101(5)(f)). Bodies corporate face extended liability: conduct and state of mind of directors, employees, or agents are attributed unless reasonable precautions were taken (s. 97). Officers of bodies corporate are liable for certain offences under Criminal Code ss. 39 and 41 (s. 98).

Enforcement relies on evidentiary aids in s. 99: prosecution notice allegations of declarations, areas, officer status, notices, or requirements are presumed true absent contrary evidence. Documents signed by the Minister, Coordinator, SEMC chair, or officers are presumed authentic. Good-faith information exchange under s. 72 attracts civil and criminal immunity. Revocation of declarations does not affect prior penalties or proceedings (ss. 53(4), 59(4)). The Act prevails over inconsistent laws (s. 8(1)), and other written law powers do not preclude declarations (s. 94A).

Section 8(1) provides that this Act prevails over any inconsistent provision in another Act or subsidiary legislation. It is expressly additional to the Fuel, Energy and Power Resources Act 1972 (s. 8(2)) and does not derogate from other powers except where inconsistent (s. 8(3)). It does not authorise industrial dispute or civil disturbance measures (s. 9).

Numerous definitions import concepts from other statutes: "local government district", "occupier", and "owner" from the Local Government Act 1995; "public authority" from the Public Sector Management Act 1994; "terrorist act" from the Commonwealth Criminal Code; "employee" and "employer" from the Industrial Relations Act 1979. Hazard management agencies are chosen for their functions "under any written law" (s. 4(3)).

Part 6 powers interact with road traffic law (s. 68 overrides Road Traffic (Vehicles) Act 2012 permit requirements), criminal investigation law (ss. 66(1)–(2) prescribe officer offices for Criminal Investigation (Identifying People) Act 2002 Part 3), medicines legislation (s. 76A overrides Medicines and Poisons Act 2014 and Misuse of Drugs Act 1981 for authorised poisons activities), and motor vehicle insurance (s. 100(3) preserves Motor Vehicle (Third Party Insurance) Act 1943 liabilities).

Compensation interacts with insurance contracts (s. 78(2)(a) reduces entitlement by recoverable insurance; s. 84 extends policies). Employment protections overlay the Industrial Relations Act 1979. Volunteer compensation regulations may require insurance policies with prescribed terms (s. 101).

The Civil Liability Act 2002 is available to further limit liability (s. 100(2)). Evidence Act 1906 is supplemented but not displaced (s. 99(4)). Criminal Procedure Act 2004 infringement notice regulations are enabled (s. 102(3)). The Act expressly states that powers under other written laws do not prevent declarations or affect the necessity test for Part 6 powers or "extraordinary measures" (s. 94A).

Recent amendments, particularly the Emergency Management Amendment (COVID-19 Response) Act 2020 and the 2022 Temporary COVID-19 Provisions Act, inserted health-specific powers while preserving the Act's primacy.

The compilation table reveals incremental but significant expansion. The Emergency Management Amendment (COVID-19 Response) Act 2020 (assented 3 April 2020, with retrospective operation from 16 March 2020 for key sections) inserted s. 70A (electronic monitoring of quarantined persons), amended movement and direction powers (ss. 67, 70, 71, 75), expanded information exchange to include travel and close contacts (s. 72), and adjusted direction confirmation and class-direction rules (s. 77). These changes were driven by the need for enforceable quarantine during a pandemic, where traditional powers proved insufficient for location monitoring and mass directions. Section 70A(2) allows the State Emergency Coordinator to direct monitoring if necessary for quarantine compliance, with offences carrying 12 months imprisonment or $12,000.

The Emergency Management Amendment (Temporary COVID-19 Provisions) Act 2022 made some 2020 changes permanent while sunsetting others (Part 3 Division 1 operative from 3 November 2022, Part 3 Division 1 sunsets 3 November 2024 per proclamation). It inserted s. 94A to clarify that other laws do not preclude declarations, deleted spent Part 6A, amended offence and direction provisions (ss. 86, 77), and updated the long title. The amendments addressed legal uncertainties exposed by prolonged COVID-19 declarations, ensuring future health emergencies could rely on the Act without challenge on the basis that ordinary powers under public health legislation sufficed.

The Directors’ Liability Reform Act 2023 amended s. 98 to apply updated Criminal Code officer liability provisions. The Medicines and Poisons Act 2014 cross-references were updated in 2014 (operative 2017). These changes reflect a legislative trend toward greater flexibility for protracted or novel hazards while maintaining parliamentary oversight through review (s. 103) and Gazette publication.

The Act itself contains no reported court challenges within its text; however, several provisions have inherent tension that has generated commentary and potential litigation points grounded in the statute. The breadth of the "hazard" definition in s. 3(f)—any prescribed "event, situation or condition" capable of causing loss of life, harm to health, or property or environmental damage—has been used for epidemic declarations, raising questions about whether a pandemic satisfies the "significant and coordinated response" threshold in the "emergency" definition. Section 50(2) and s. 56(2) require the decision-maker to be "satisfied" of the need for powers or extraordinary measures; s. 94A(2) expressly removes any obligation to consider alternative powers under other written laws, potentially limiting judicial review grounds.

Compensation provisions have built-in controversies. The exclusions in s. 78(2)–(3) for insurance, contributory conduct, or inevitable loss place the onus on the claimant. The 90-day application limit (s. 79(2)), lapsing mechanism (s. 80), and Tribunal review (s. 83) create procedural hurdles. No compensation exists for many Part 6 exercises (e.g. movement directions, information demands), which has been criticised as insufficient given the coercive nature of quarantine or business closure.

Employment protection in Part 9 uses a civil standard (s. 94(4)) yet carries criminal penalties for non-compliance with court orders (s. 94(8)). The victimisation definition (s. 93(3)) is broad, including failure to provide s. 92 entitlements, but the defence of "unreasonable absence" (s. 93(2)(a)) introduces factual contestability.

Liability protection in s. 100 is wide—covering "anything done, in good faith"—but carves out motor vehicle injuries, reflecting a compromise. Electronic monitoring offences in s. 70A(6)–(7) impose strict liability elements, with "without reasonable excuse" only for interference.

Class directions under s. 77(2A) need not be individually served nor published in the Gazette if the Minister chooses another "suitable" manner; this raises natural justice issues for affected persons. The Act's primacy (s. 8(1)) and non-derogation from certain statutes have not been tested in the provided text, but the 2022 insertion of s. 94A suggests legislative anticipation of arguments that ordinary powers under public health or local government law negate the need for emergency declarations.

The five-year review under s. 103 provides a statutory mechanism to address such controversies, though the text records no specific outcomes.

Most practitioners miss that an emergency situation declaration by the State Emergency Coordinator is taken to have been made by the relevant hazard management agency for all purposes except the declaration section itself (s. 50(6A)(b)), allowing seamless transfer of operational control without fresh paperwork. Few realise that local emergency management arrangements must nominate a local recovery coordinator and contain a recovery plan (s. 41(4)), yet recovery itself is defined expansively in s. 3 to include psychosocial and economic wellbeing—obligations that extend beyond physical cleanup and can trigger compensation claims.

The 24-hour initial quarantine limit in s. 70(3) can be bypassed only by the State Emergency Coordinator or his prior authorisation; many officers incorrectly assume hazard management agencies hold equivalent power. Electronic monitoring under s. 70A can be imposed on any quarantined person if the Coordinator is "satisfied" it is necessary, but the device must be Minister-approved; using non-approved equipment invalidates the direction and exposes officers to liability despite s. 100 immunity.

Compensation is unavailable for pure economic loss from movement or closure directions—only direct loss from the five specified powers in s. 78(1). Applications lapse irrevocably if information is not supplied by the Minister's deadline, even if the deadline is later extended (s. 80(5)). Insurance extension under s. 84 applies only where the emergency act was performed "in good faith" and for protection purposes; bad-faith or unrelated exercises fall outside.

Class-based directions under s. 77(2A) bypass Interpretation Act 1984 s. 41 Gazette requirements, but the Minister's choice of publication method must still be "suitable in the circumstances"—an undefined term that could be challenged. Hazard management agencies can delegate declaration and authorisation powers only with State Emergency Coordinator approval and only to officers or employees (s. 5), yet s. 4(4)–(5) allows regulations to designate non-individuals with named representatives, creating a parallel track.

Annual reporting obligations cascade: local committees report to district committees (s. 40), which incorporate those reports and report to the SEMC (s. 33), which reports to the Minister (s. 25). Missing one link can invalidate the entire chain for audit or funding purposes. Volunteers carrying out "prevention, preparedness, or recovery" are explicitly excluded from employment protection (s. 91(2)(b)), a distinction often overlooked until a claim arises. Finally, the Act's own review clause (s. 103) requires the Minister to consider whether the Act is still needed—yet the text contains no mechanism for automatic expiry, meaning political inertia can extend even controversial powers indefinitely.

Compliance begins with mapping obligations by entity type. Public authorities and hazard management agencies should obtain and maintain copies of all current State emergency management policies and plans (ss. 17–18), ensure roles assigned under them are reflected in internal procedures, and respond to SEMC directions within stipulated timeframes (s. 20(3)). They must train authorised officers, issue identification cards (s. 62), and document all exercises of power, including written confirmation of oral directions within two working days (s. 77(2)).

Local governments must prepare local emergency management arrangements containing all elements listed in s. 41(2), deliver copies to the SEMC immediately (s. 41(5)), review them per SEMC procedures (s. 42(1)), and keep them publicly inspectable (s. 43). They should establish local emergency management committees with SEMC-compliant constitutions (s. 38(4)), appoint or consult on local emergency coordinators (s. 37), and integrate cyclone powers into delegated officer authorisations (s. 45). Annual reports must flow upward on time (s. 40).

During an emergency situation or state of emergency, officers must operate strictly within the terms of their authorisation (ss. 55(5), 61(5)), prefer the least intrusive option where discretion exists, record the factual basis for each direction (to support "satisfied" and "reasonably required" tests), and facilitate compensation claims by preserving evidence of loss. Organisations receiving directions under s. 74 or s. 20 must comply within the stated time or face offence provisions.

Employers should update employment contracts and policies to reflect Part 9 protections, track emergency-response absences separately for leave calculations, and train managers to recognise victimisation risks. A clear internal escalation path to the State Emergency Coordinator or SEMC is advisable when directions appear inconsistent with other statutory duties.

All entities must maintain confidentiality (s. 95), implement information exchange protocols consistent with SEMC procedures (s. 72(6)), and prepare volunteer insurance where regulations so require (s. 101). Regular tabletop exercises of State and local plans, as contemplated by s. 19(2) and s. 42, are essential to test compliance systems. Finally, organisations should monitor the SEMC website and Gazette for new policies, plans, cyclone designations (s. 16), district boundaries (s. 28), and declarations, because failure to consult when required (s. 50(4)) does not invalidate a declaration but may expose procedural weaknesses in subsequent review or compensation proceedings. A compliance matrix cross-referencing each section against responsible officers, deadlines, and record-keeping requirements is a practical tool that justifies the subscription-level detail demanded by practising lawyers and compliance professionals.