Public Safety Preservation Act 1986

Police officers at all levels are the primary actors. The Act confers powers on emergency commanders, terrorist emergency commanders, CBRE commanders, other police acting on instructions, and appropriately qualified officers in delegation positions.

Members of the public in or near a declared emergency area are directly affected. They may be required to evacuate, excluded from premises, directed to surrender property, or directed to assist operations.

Property owners and operators may have their resources commandeered under resource surrender directions. This includes vehicles, vessels, equipment and premises.

Employees directed to comply with resource operator or help directions are protected from dismissal and are entitled to pay for normal working hours during their absence (section 44). Continuity of service is preserved.

Indigenous and other communities in areas subject to emergency declarations are profoundly affected. In Wotton v State of Queensland [2016] FCA 1457, the Federal Court found that the making of an emergency declaration under section 5 covering Palm Island in 2004 and its continuation constituted unlawful racial discrimination under the Racial Discrimination Act 1975 (Cth).

Emergency responders other than police (including inspectors under the Explosives Act 1999, authorised persons under the Environmental Protection Act 1994, and biosecurity officers) may be the subject of CBRE commander directions about how they exercise their own powers during a CBR emergency (section 11).

Section 5: Issuing the emergency situation certificate. The emergency commander must issue the certificate "as soon as practicable" after making the oral declaration. Failure to meet this requirement may affect the legal basis for ongoing powers.

Section 5(3)/(5): Keeping the declaration and revocation records. The declaration continues until revoked. The commissioner must keep the certificate for at least 6 years.

Section 5 (implicit): Continuing satisfaction required for continuation. As found in Wotton at paragraph 1131, for an emergency declaration to remain lawfully in place the commissioned officer must continue to have a state of satisfaction about the circumstances in section 5(1). The use of the present tense in section 5(3) ("exists") reinforces that the declaration is not a one-shot exercise of power but requires ongoing legal justification.

Section 8(3): Compliance with directions. Persons given a resource surrender direction, resource operator direction or help direction must comply unless they have a reasonable excuse. Non-compliance carries a maximum penalty of 40 penalty units or 1 year's imprisonment.

Section 44: Employer obligations. Employers must not dismiss employees absent because of a relevant direction. Employers must pay wages for normal working hours during such absence.

Section 46: Compensation claims. Persons whose property is surrendered or damaged must apply for compensation in writing to the Minister within 28 days (emergency situation or terrorist emergency) or 3 months (CBR emergency) of the declaration ending.

Emergency situation (Part 2, section 8). During a declared emergency situation, the emergency commander (and police acting on instructions) may, if satisfied it is necessary:

• Direct owners or persons in charge of any resource to surrender it (resource surrender direction);
• Take control of any resource;
• Direct capable persons to operate a resource under command (resource operator direction);
• Direct evacuation and exclusion of persons from premises, using reasonable force;
• Close roads, streets, motorways, footways and places to public access;
• Enter and search any premises using reasonable force;
• Remove any animal or thing from premises;
• Direct any person to assist (help direction);
• Destroy explosives found in the area (section 8(1)(j), subject to approval requirements in section 8AAA where structural damage is likely).

Terrorist emergency (Part 2A). Additional powers for the terrorist emergency commander and forward commanders include: declaring a terrorist emergency in respect of a site; extending the emergency; establishing a terrorist emergency reception centre (section 8BA); specific powers to control access to and from the site; use of covert surveillance devices (Part 3B).

CBR emergency (Part 3). The CBRE commander has coordination responsibility and general powers over the emergency area, including directing other emergency responders when to exercise their own statutory powers. The CBRE commander may: declare a CBR emergency; direct evacuation; control access; direct testing and monitoring of persons for exposure to CBR substances; authorise detention of persons to prevent spread of CBR substances.

Delegation. The emergency commander may delegate functions (including the power to sub-delegate) to appropriately qualified police officers while not acting as emergency commander. However, the power to issue the emergency situation certificate, or to make revocation notations, cannot be delegated (section 7(3)).

Compensation discretion. Under section 46(4), the Governor in Council may approve an ex gratia payment or reject a compensation application. There is no right to compensation, only a right to apply. The Governor in Council has full discretion.

The Act's penalty provisions are relatively limited in scope. The main criminal obligations on members of the public arise from section 8(3) (failure to comply with resource directions without reasonable excuse: 40 penalty units or 1 year's imprisonment) and from section 44(1) (dismissal of employee because of relevant direction: 40 penalty units or 1 year's imprisonment).

Persons who knowingly hinder emergency responders or interfere with emergency operations would be exposed to broader criminal liability under the Criminal Code Act 1899 (Qld).

Police and emergency commanders acting under a lawfully declared emergency have immunity for acts done in good faith. However, unlawful exercise of emergency powers does not create immunity. In Wotton [2016] FCA 1457, the court found that the making of the declaration was lawful but its continuation past 26 November 2004 was not, and that both the making and continuation constituted unlawful racial discrimination under the RDA. That finding illustrates that the procedural lawfulness of a declaration does not insulate the decision-maker from liability under other laws.

Making an emergency declaration (section 5): Oral declaration at the time of the emergency by the emergency commander; written certificate issued as soon as practicable thereafter. The certificate documents the nature, date, time and area.

Continuation: The declaration continues until revoked. The emergency commander, or another senior officer if unavailable, must revoke. Post-revocation, the date and time of revocation must be noted on the certificate.

Terrorist emergency: The commissioner or deputy commissioner appoints a terrorist emergency commander. The commander may declare a terrorist emergency in respect of one or more sites. There are time limits and extension procedures for the terrorist emergency declaration.

CBR emergency: The CBRE commander may declare, extend and end the emergency. Division 2 of Part 3 sets out the declaring, extending and ending procedures.

Compensation claims: Must be filed in writing within 28 days (emergency situation or terrorist emergency) or 3 months (CBR emergency) of the relevant declaration ending. The Governor in Council then decides.

Certificate retention: The commissioner must keep the emergency situation certificate for at least 6 years (section 5(6)).

Disaster Management Act 2003 (Qld). Section 6 of the PSPA requires the emergency commander to revoke an emergency situation declaration when a disaster situation is declared under the Disaster Management Act, unless the emergency commander believes on reasonable grounds that continuation is necessary. The two regimes interact: a Disaster Management Act declaration can trigger the revocation obligation under this Act.

Racial Discrimination Act 1975 (Cth). In Wotton [2016] FCA 1457, the Federal Court considered whether the making and continuation of an emergency declaration under section 5 constituted an act involving a distinction or restriction based on race, contrary to section 9(1) of the RDA. The court found it did (paragraph 1477). The case confirms that emergency powers exercised in a racially discriminatory manner are subject to Commonwealth law.

Police Powers and Responsibilities Act 2000 (Qld). Section 11(1)(c) of the PSPA preserves police powers under the PPRA. CBRE commanders may direct police officers about when to exercise PPRA powers during a CBR emergency.

Environmental Protection Act 1994 (Qld) and Explosives Act 1999 (Qld). Section 11(1) preserves powers of inspectors under those Acts during a CBR emergency. The CBRE commander may give directions about their use.

Biosecurity Act 2014 (Qld). Section 11(1) preserves biosecurity officer powers. The CBRE commander may direct biosecurity officers to delay exercising powers if a CBR emergency involves an outbreak of animal disease.

Workers' Compensation and Rehabilitation Act 2003 (Qld). Under section 45, persons (not police) acting under a resource operator or help direction are taken to be employed by the Commissioner of Police for workers' compensation purposes.

Acts Interpretation Act 1954 (Qld). The delegation provisions in section 7 operate in accordance with section 27A of the Acts Interpretation Act, including requirements for written delegation instruments and sub-delegation records.

Emergency declarations do not create blanket immunity. As Wotton makes clear, declaring an emergency under section 5 does not protect the decision-maker from liability under other laws, particularly where the declaration is applied or maintained in a racially discriminatory manner.

Continuing satisfaction is required. A lawful declaration does not remain lawful simply because it was properly made initially. The emergency commander must continue to have reasonable grounds for satisfaction that the emergency situation exists. If the grounds cease to exist, the declaration must be revoked. Continuing an expired declaration unlawfully can lead to legal liability for all actions taken under it.

Certificate is mandatory. Section 5(3) requires the emergency commander to issue a certificate as soon as practicable after the declaration. Failure to issue the certificate, or gaps between the oral declaration and the written certificate, may create challenges to the lawfulness of actions taken in the interim.

Compensation is discretionary and strictly time-limited. Section 46 provides only for ex gratia payment at the discretion of the Governor in Council. There is no right to compensation. Claims must be made within 28 days (emergency/terrorist) or 3 months (CBR) of the declaration ending. Late claims are not received.

Directions cannot expose persons to imminent danger. Section 8(2) expressly prohibits the emergency commander from giving a resource operator direction or help direction if doing so would expose the person to imminent danger. Giving such a direction, and injury resulting, would expose the State to civil liability.

Non-delegable functions. The emergency commander cannot delegate the function to issue the emergency situation certificate or to make revocation notations (section 7(3)). These acts must be done personally by the relevant officer.

Extraterritorial effect. The Act applies outside Queensland and declarations may cover areas outside Queensland. This means the powers in the Act can be exercised over resources, premises and persons outside the State.

Industrial accident in Brisbane. A chemical plant has an explosion releasing a cloud of toxic gas. A senior police officer (emergency commander) is satisfied on reasonable grounds that an emergency situation exists in the surrounding suburb. The officer verbally declares an emergency and issues a certificate. Under section 8, the commander can direct residents to evacuate, close all streets leading into the affected area, commandeer buses and vehicles for evacuation, and direct capable drivers to operate those vehicles. Residents must comply or risk a criminal penalty.

Palm Island riots 2004. Following unrest on Palm Island, a commissioned police officer made an emergency declaration under the pre-2007 version of section 5. The Federal Court in Wotton found: the making of the declaration was lawful; the continuation past 26 November 2004 was not lawful; both the making and continuation constituted unlawful racial discrimination under the RDA because the particular combination of police conduct in the preceding period and the deployment of SERT targeted Aboriginal residents based on their race. The case illustrates that procedural correctness in making a declaration does not insulate the decision-maker from liability under Commonwealth anti-discrimination law.

Terrorist threat at a stadium. The commissioner appoints a terrorist emergency commander for a stadium where a credible bomb threat has been received. The commander declares a terrorist emergency. The terrorist emergency forward commander for the site may control access, direct evacuation, and authorise surveillance devices under Part 3B. When the threat is neutralised, the declaration must be revoked. Property owners whose vehicles were commandeered may apply for compensation under section 46 within 28 days.

Employee directed to assist. A bus driver is directed under a resource operator direction to drive a commandeered bus during a CBR emergency. The driver is absent from their regular employment. Under section 44, the employer cannot dismiss them, their employment continuity is preserved, and they are entitled to wages for the normal hours worked.