Questioning the legality of forced evacuations during the Red October bushfires

In the aftermath of the recent State Mine Fire in the Blue Mountains, my team at UOW revisited interview participants who were initially interviewed mid-2013 on their preparedness for bushfire. The State Mine Fire provided a unique opportunity to investigate if their preparations withstood the attack.

During one interview, a participant vented his frustration with police orders to evacuate his property, as he was well-prepared to face the fire. He candidly asked me if legally he had to follow such an order when the ‘Prepare. Act. Survive.‘ policy guides people on how to prepare their property in order to stay and defend it. I promised to get back to him with an answer, as I needed to get my facts straight first. I sought the advice of a barrister and academic colleague at the ANU College of Law, Dr Michael Eburn who specialises in emergency law.

Extent of the NSW State Mine Fire

Having always been under the impression that Australia does not have a ‘mandatory evacuation’ policy in place, I firstly asked if this is correct? Secondly, I queried if the situation changes when a State of Emergency is declared? Referring to section 37 (as well as 37A-38) of the State Emergency and Rescue Management Act 1989, the Act can ‘…authorise an emergency services officer to direct a person to do any or all of the following: a) to leave any particular premises and to move out of an emergency area or any part of an emergency area…’.

The key seems to be the word ‘direct’. Does ‘direct’ equal ‘mandatory’? Is it ‘advice’ or an ‘order’? Dr Eburn’s insightful and detailed response is available on his blog Australian Emergency Law. It examines the historical debate in Australia surrounding the pros and cons of forced evacuations, draws attention to the updated Bushfires and Community Safety Policy (version 5.0 published by the Australian Fire and Emergency Services Authorities Council), and explains the legalities when a State of Emergency is declared, before concluding:

“In summary, there is not a policy of mandatory evacuation [in Australia] but the police and emergency services do have the power to order an evacuation if required. Where an order is made under ss 37 or 60L it is a ‘mandatory’ order but during fires such as the State Mine fire, it will, for all practical purposes, be unenforceable.”

Regrowth after the NSW State Mine Fire, Dec 2013

You can follow @DrCEriksen on Twitter. Christine also wrote a reflection on the Red October bushfires in its immediate aftermath: ‘Reflections from the fire front and research in its ashen wake’.

7 thoughts on “Questioning the legality of forced evacuations during the Red October bushfires

  1. Hi Christine

    This is a very interesting observation.
    The US/Aus distinction about mandatory evacuation is usually drawn as a very clear one.
    You work here sounds like something of interest to the IAG’s Legal Geography study group.

    SW

  2. Hi Stewart,
    It’s a topic that often crops up during my interviews with bushfire survivors. Interestingly, from a socio-psychology point of view of what is considered acceptable ‘law and order’, people tend to make a point of distinguishing between the advice and behaviour of the police cf. fire agencies – and even more specifically between the knowledge of locals vs. officials brought in from outside areas.
    There’s definitely scope for a more in-depth discussion/study on the legalities of forced evacuation applying a geographical lens.
    Christine

  3. Ps. There is indeed a clear official distinction between US and AUS evacuation policies, however, the distinction isn’t that clear cut amongst US residents living in high-fire-danger areas, as my work in California shows.

  4. Hi Christine

    It always interesting to delve in to the evacuation powers in an emergency. Michael Eburn has been very proactive in clarifying the vagaries with which many emergency services operations in such circumstances. The WA Emergency Act in 2005 sought to make the powers less ambiguous however in reality the vexed question of forcing people to leave an area where they which to remain is still unanswered.

    When the WA Emergency Act came in to force the potential of substantial fine for not complying to a lawful direction was a contentious point of debate in the public. WA Public Safety agencies stayed with the line of “only if we have to”. Which will be an interesting point for the legal profession if that failure to act with the full powers has a consequence of multiple fatalities.

    Refer to EMERGENCY MANAGEMENT ACT 2005 – SECT 67 and also penalties for not complying.

  5. Michael Eburn’s summary is very useful. However, he only makes reference to NSW Acts which do give emergency agencies the power to mandate evacuation. This is not the case with legislation in other states such as Qld and Vic and, as he observes, even in NSW mandatory mass evacuations would be difficult to enforce.

    Steven Molino

    Molino Stewart
    Environment and Natural Hazards

  6. Hi Craig and Steven – thanks for your comments and insights from interstate.

    While legislation clearly plays an important role in emergency situations, mass evacuation is deeply problematic in my opinion, as it disempowers capable people to act on local knowledge. There is of course different levels of local knowledge amongst the very diverse members of communities living in bushfire-prone areas today. Nevertheless, Australian law enforcement should not forget the tried and trusted notion of prepared residents being able to assist (nor impair) fire fighting efforts. The conclusion of my newly published book discusses this very point:

    ‘Throughout this book the narratives speak volumes for the value of risk engagement and wildfire preparedness. The degrees to which women, men and families are self-reliant and prepared or solely rely on official evacuation orders significantly influence their risk resilience. … The horror stories in Chapter 3 of families separated geographically by wildfire due to the realities of everyday commutes to and from work, question the sustainability of residential living at the wildland-urban interface. They point to structural issues that need to be addressed but the question remains, by whom? In my opinion, the responsibility lies with each and every individual who chooses to take up residence at the wildland-urban interface. Singling out a need for stricter planning regulations, changing work practices, or permit systems, takes away much of the agency of individuals to actively engage with risk and thereby reduce vulnerability. The power and ability of individuals and local communities to make a difference lies at the very heart of my arguments in this book. This does not by any means imply that emergency services, local councils and regulatory bodies should not strive continually to provide better assistance to householders to equip them with the knowledge needed to adequately prepare for wildfire. It is only through collaboration with and empowerment of residents and local communities that wildfire management agencies can truly make a difference. With the increasing frequency of days with hot and extreme weather conditions, it seems only reasonable that people who choose to live at the wildland- urban interface should take charge of their own safety. It is householders’ responsibility to be prepared, aware, and respond decisively before it is too late. Coming to terms with the real possibility that a house is indefensible from catastrophic wildfires is essential. Emergency services and building regulators have an obligation to set a high standard that prioritises safety over lifestyle. Still the responsibility lies squarely with the individual, unless we resort to the nanny state that people across California and New South Wales traditionally reject and despise.’ (pp.150-151, Eriksen, C. 2014. Gender and Wildfire: Landscapes of Uncertainty, Routledge: New York)

    See also this video discussion: http://youtu.be/Xf_m_PK58m4

  7. Pingback: Gender and Wildfire – an interview with Christine Eriksen | Conversations with AUSCCER

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