AUSTRALIA AND THE IDRL GUIDELINES

Michael EburnSenior

LecturerSchool of

LawUniversity of

New EnglandARMIDALE NSW 2351

13 natural disasters with 50+ fatalities since 1900

1911

- Cyc

lone

1912

- Cyc

lone

1916

- Floo

d

1918

- Cyc

lone

1926

- Bus

hfire

1934

- Cyc

lone

1935

- Cyc

lone

1939

- Bus

hfire

1943

- Bus

hfire

1967

- Bus

hfire

1974

- Cyc

lone

1983

- Bus

hfire

2009

- Bus

hfire

020406080

100120140160180200

173 173

Fatalities by type of disaster – since 1900

492

761

65

BushfiresCyclonesFloods

Smith review of Homeland Security (2008)

“While crisis management by the Commonwealth has generally been done well ‘on the day’, the current hazard-specific approach and the absence of consistent national arrangements for handling significant crises exposes the Government to several areas of vulnerability.”

• One area of vulnerability may be Australia’s ability to manage an inflow of international assistance.

COMDISPLAN

EMA will:• Receive offers of international assistance;• Seek international assistance ‘where resources

to meet a particular need are not available in Australia’; and

• Make arrangements to receive and register international assistance including spontaneous assistance.

Border controls

• It will be ‘business as usual’• No special arrangements are in place to deal

with visas, customs, quarantine, legal facilities or legal personality.

Too many jurisdictions – Commonwealth and state

• Disaster management and response is seen as a matter for State and Territory governments.

• BUT the Commonwealth is responsible for the national border – therefore visas, quarantine, the importation of relief supplies and the relationship with other nation states is a matter for the Commonwealth.

Too many jurisdictions – states

• Incoming agencies will need to liaise with Commonwealth agencies to gain access to Australia and then State agencies to gain access to the disaster area.

• Coordinating authorities will vary from jurisdiction to jurisdiction so arrangements have to be negotiated in each State.

• There is no provision for a National State of Emergency and no provision, should the disaster take on national proportions, that the Commonwealth will take on a central coordinating role.

Part I: Core responsibility

• Rests with the states, not the nation state.• No Commonwealth counter disaster legislation

so No single Commonwealth authority to manage the

Commonwealth response. No facility to appoint a Commonwealth “Coordinator

in Chief”. No power to waive or vary the rules eg for

immigration

Emergency Management Australia

• Is part of the Attorney-General’s department.• Has no statutory authority.• Following a review is also responsible for

counter-terrorism response.• There could be confusion between:

the Director of EMA; the Secretary to the Attorney-General’s Department; the National Security Adviser; the Attorney-General; and the Minister for Home Affairs.

• Their respective roles in advising the Government is unclear.

Accountability

• Incoming actors would be required to comply with Australian law – corporations law, tax law, OHS law, building standards etc. Subject to Australian common law including tort law.

• Some legal protection for agencies that work with, and under the direction of State counter disaster controllers but it does depend on the legislation in each state.

Guideline 10: Initiation

• States can, and do, make their own arrangements – there are standing agreements between fire agencies in Australia, the USA, New Zealand and Canada. Fire fighters can be brought in without reference to the Commonwealth.

• NGOs my liaise directly with state governments or their Australian chapters.

Parts IV and V: Legal facilities• There are no procedures in place to pre-

approve or identify agencies that should be granted legal facilities.

• Visa requirements, customs, immigration, quarantine etc will all be applied ‘as usual’.

• There is no power to ‘waive’ customs or immigration requirements though the Minister may issue special purpose visas with relative ease.

• Recognition of foreign qualifications is a State matter. The ACT recognises the qualifications of a person providing disaster relief services pursuant to a ‘cooperative agreement’.

As an aid donor

• The Tsunami Evaluation Coalition recommended that an international process of accreditation of non-government organisations was needed, but failing that, donor countries should have in place a domestic accreditation process.

• NGOs seeking to deliver programs funded by AusAID must show that they have appropriate corporate structure and accountability provisions, that they are competent to undertake the task and adhere to international standards.

IDRL Guidelines – Guideline 10: Initiation

• AUSASSISTPLAN – requests for Australian assistance are directed to mission in country but

• States can provide assistance direct, without reference to the Commonwealth.

Guideline 11: Military assistance

• Australia claims to adhere to the Oslo Guidelines but the ADF are used as a primary emergency response organisation.

• The Prime Minister has announced that, following the 2020 summit, the Commonwealth is to consider developing a “Deployable Civilian Capacity” and to improve civilian-military cooperation.

Guideline 17: Goods and Equipment

• AUSASSISTPLAN provides details of packaging for goods to be delivered by Australia as overseas aid.

• There is no requirement that goods are labelled in the language used in the receiving country.

Summary

• Australia is not well prepared to deal with an inflow of international disaster assistance.

• The Commonwealth continues to operate on a ‘business as usual’ model. There is no clear structure of the Commonwealth’s emergency response arrangements.

• The planning for the response to a natural disaster does not equate to the planning for a response to a terrorist incident. This is not an ‘all hazards’ approach.

• Many of the problems seen before may be expected in Australia.

Solutions? Experience?

• Will it really be a problem?• How does it work in your experience?• How do we better prepare for a disaster of truly

international proportions?• Do you have suggestions?• What is the experience in New Zealand and

other countries?

Contact: E: meburn@une.edu.auP: (02) 6773 3701