There have been demands that the Prime Minister declare that the current fire emergencies represent a national emergency. For example, Laura Tingle (‘Bushfire emergency reveals Scott Morrison’s leadership failure not just climate policy vacuum’ 7:30 (Online) 14 December 2019) said:

Yes, Prime Minister, it is a national disaster … What’s more, we should be watching the Government “in action” and “dealing with the issues that the Australian people are facing”.

But as plenty of people have observed, that has not been happening, or appearing to happen.”

Senator Sarah Hanson-Young said (Facebook, 20 December 2019):

As soon as the Prime Minister returns to Australia, he must declare a National Emergency and convene an emergency summit of the State Premiers, Emergency Chiefs and health professionals.

This begs the question of ‘what is a national emergency and what would such a declaration mean?’ The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact. Unlike a declaration at state level it would not trigger any extraordinary powers or authority or release any emergency funds. The declaration, if made, would at best be symbolic.

Symbolism is not necessarily a bad thing. During the 2009 Victorian ‘Black Saturday’ bushfires the emergency managers did not give consideration to declaring a state of emergency on the basis that it would not add anything in terms of power and resources. There was no declaration as a declaration was not required. The 2009 Victorian Bushfires Royal Commission (2009 Victorian Bushfires Royal Commission, Final Report Summary, p. 8) said:

Even if practical cross-agency and community cooperation was already in evidence and no additional coercive powers were needed, such a declaration would have recognised the gravity of the situation and might have sharpened emergency agencies’ focus on community safety and warnings.

There is some residual power in the Commonwealth to deal with emergencies that are truly national in scale and that, because of that scale, only the Commonwealth can deal with. In Pape v Commissioner of Taxation [2009] HCA 23 four of seven judges ((French CJ and in a joint judgment Gummow, Crennan and Bell JJ) accepted that the Global Financial Crisis was a crisis of such scale that the Executive could Act to appropriate money from consolidated revenue to pay us all sums up to $900 per person to stimulate the economy. That was accepted, in part, because no-one challenged that question of fact.

In their joint judgement (at [233]) Gummow , Crennan and Bell JJ said ‘The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale [of the Global Financial Crisis]’. In that case the executive government (the Prime Minister and Cabinet) can act to take control of the disaster even without legislative authority.

The dissenting judges (Heydon J and in a joint judgment Hayne and Kieffel JJ), however, were reluctant to leave it to the Commonwealth to decide for itself what is a national emergency. To do so would allow the Commonwealth to expand its authority beyond the distribution of powers set out in the Constitution. Justices Hayne and Kieffel JJ said (at [353]):

… if it is to be for the Executive to decide whether there is some form of “national emergency” (subject only to some residual power in the Court to decide that the Executive’s conclusion is irrational), then the Executive’s powers in such matters would be self-defining.

Heydon J said (at [551]):

The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”

That is in the absence of any legislative authority, a declaration by the Prime Minister that this is a ‘national emergency’ and for the Prime Minister to then seek to exercise some national authority would be to extend the power of the Commonwealth beyond that provided for in the Australian Constitution.

And if there is a power to deal with a national emergency it begs the question of whether this is one. Heydon J said (at [550]) the power to deal with a national emergency (in that case a national fiscal emergency):

… depends on satisfaction of a factual pre‑condition. That pre-condition is that the emergency is only capable of being promptly and appropriately met by Commonwealth action.

It is unclear, given the response by the state agencies including coordinating Commonwealth and international assistance, what the Commonwealth would or could add that is not already being provided.

The Commonwealth does have emergency plans and frameworks in place (see Department of Home Affairs Emergency management (5 August 2019)). This includes COMDISPLAN which ‘explains how the Australian Government responds to requests for assistance from state and territory governments responding to a disaster’. The Commonwealth government is responding to those requests (see for example Defence continues bushfire support (25 December 2019)). This Defence Aid to the Civil Community ( or ‘DACC’; see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)) provides Commonwealth resources but control of the response remains with the state authorities.

In work done for the Bushfires and Natural Hazards CRC (The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (April 2019)) Andrew Gissing, Cameron Moore and I:

… argued that a disaster where a state government is overwhelmed so that the state itself is at risk of collapse and there is no effective state government would be a national catastrophic disaster that would justify Commonwealth intervention in the affairs of the state in order to restore effective state government. What disaster, short of the collapse of state government, would be sufficient for direct Commonwealth action cannot be conclusively defined.

There is no suggestion that the current fires are going to overwhelm the states so why they are an event that ‘is only capable of being promptly and appropriately met by Commonwealth action’ is unclear. In the absence of any definition of a national emergency, agreed to by the States and Territories, it is not at all clear what the Commonwealth could do, if a ‘national emergency’ was declared, that the Commonwealth cannot already do.

‘Hard cases make bad law’. This is not a ‘case’ in the legal sense, but the fires are a hard, dramatic and emergency situation but responding to ‘this’ emergency is likely to create ‘bad law’ for future emergencies. No doubt we can look forward to post event inquiries from these fires – whether there is one in each state or a Commonwealth led inquiry (such as that that followed the 2002-03 fire season; House of Representatives Select Committee into the recent Australian bushfires A Nation Charred: Report on the inquiry into bushfires (23 October 2003)). That inquiry may be the place to consider what, if anything in the response was missing and that could only be provided by the Commonwealth and to consider then what a national emergency looks like and what powers and authority needs to be vested in the Commonwealth to allow it to take the lead in an emergency that threatens the nation.

Conclusion

There is no legislation to allow the Prime Minister or the Governor-General to declare a National Emergency. In the absence of that legislation the only value of such a declaration is symbolism. A symbolic declaration may be important and useful, but it should be understood that is all it would be.

There is, in the executive power of the Commonwealth, some residual power to allow the executive government to step up and deal with a truly national emergency but there is no reason to think the current fire emergencies threaten the existence of either the States or the Commonwealth to meet the necessary threshold for such an emergency.

Further reading:

POSTSCRIPT

There have been several comments on this post that suggest I have not made the conclusion, or the point, clear enough. I’ll use this comment as a stimulus to try to make the point clearer. A correspondent wrote:

One argument for introducing a National Emergency, albeit a weak one, would be if large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources.

An argument for introducing, or declaring, a national emergency is that the declaration will have some important effect. It may be symbolic and help focus the mind and show the community that the Commonwealth is taking the matter seriously. It may be more and actually give rise to emergency powers to be deployed during the emergency. The ‘argument for’ has to be ‘that it will achieve something’.

The scenario, ‘large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources’ may be sufficient to meet the national emergency threshold test. But what would a declaration allow the Commonwealth to do that cannot already be done? That depends on the basis of the declaration.

What I was trying to say is that there are two possible bases for a declaration.

One is under legislation – the Commonwealth equivalent of the Emergencies Act 2004 (ACT); State Emergency and Rescue Management Act 1989 (NSW); Emergency Management Act 2013 (NT); Disaster Management Act 2003 (Qld); Emergency Management Act 2004 (SA); Emergency Management Act 2006 (Tas); Emergency Management Acts 1986 and 2013 (Vic) and Emergency Management Act 2005 (WA).

But there is no equivalent Commonwealth legislation. If there was it could identify what the threshold of a national emergency is and who is empowered to do what. But that legislation does not exist.

The second basis is to rely on the ‘prerogative power of the Crown’ now given to the Commonwealth by s 61 of the Constitution and caught up in the phrase ‘the executive power of the Commonwealth’. What Pape’s case was saying that in a truly national emergency, where the Commonwealth is the only ‘arm of government capable of and empowered to respond to [the] crisis’ then the Commonwealth can exercise extraordinary powers to deal with that crisis. But what is a sufficient crisis to trigger that nationhood power is not defined, it remains to be tested on a case by case basis.

An issue in Pape’s case was whether or not the decision by the Commonwealth that an emergency is indeed a national emergency can be challenged in court. The majority (French CJ and in a joint judgment Gummow, Crennan and Bell JJ) did not address that as it was not disputed that the GFC did meet the threshold. The dissenting judges (Heydon J and in a joint judgment Hayne and Kieffel JJ) said it cannot be left to the executive to decide because if it was they could expand their own powers by declaring everything to be a national emergency – and as Hayden J said, in this day and age we’re constantly told everything is a ‘national emergency’.

And just as in the GFC, if it’s left to some vague exercise of executive power, it’s open to challenge and the last thing you want in a disaster is someone taking the government to the High Court.

So, what was my point meant to be?

There is a call for the PM to declare a national emergency. In the absence of legislation that would, legally, not mean anything. It may be important symbolically and symbolism is important hence the quote from the 2009 Victorian Bushfires Royal Commission (above) but it would not give the Commonwealth any special powers or authority or give to the Commonwealth the power to direct the response or get more involved than they already are. If what was meant was this is a national emergency of the type imagined in the concept of ‘the executive power of the Commonwealth’ it is my (and my colleagues’ argument) that this current set of fires would not meet that threshold.

To return to the scenario posited above:

… large scale fires were simultaneously out of control in several States, State Emergencies had been declared in those States and there were competing demands for Federal resources.

That would meet the threshold for a ‘national emergency’ that only the Commonwealth could manage if the impact was that the very governance of the states were at risk – that is the disasters were truly overwhelming not only the resources of the State but the ability of the state government to function. It could be the role of the Commonwealth to step in and restore effective governance to ensure that the states, an essential part of the Australian polity, were to continue. To do so would be to defend the Australia provided for in the Australian Constitution and would be as much a matter for the Commonwealth as defending Australia from overseas aggression. But these fires are not at that scale.