The Disaster Management Act 2003 (Qld)
The response to Queensland flood crisis has been remarkable. In fact, it has been so well planned and coordinated that Queensland was not required to accept any search and rescue assistance from other countries. The disaster management plans developed under the Disaster Management Act 2003 (Qld) have set the standard for worlds best practice in responding to a natural disaster.
The main objects of the Disaster Management Act 2003 include:-
- Help communities effectively respond to and recover from a declared disaster or an emergency situation.
- Provide effective disaster management for the State.
- Establish a framework for the management of the State Emergency Service (SES) and Emergency Service Units.
The Disaster Management Act 2003 provides that local governments should be primarily responsible for managing events in their local government area. District and State groups are there to provide local governments with appropriate resources and support.
Persons authorised to exercise declared disaster powers
Under the Disaster Management Act 2003 the following persons (declared disaster officers) may be authorised to exercise declared disaster powers:-
- Ambulance officer.
- Fire officer.
- Health officer.
- Person who is a member of a class of persons who are considered to have necessary expertise or experience.
- Police officer (has automatic authority).
Persons authorised to exercise declared disaster powers can:-
- Evacuate people and animals, and otherwise control their movement.
- Turn off or shut down any motor or equipment.
- Shut off or disconnect the supply of fuel, gas, electricity or water.
- Maintain, restore, or prevent the destruction of essential services.
- Close traffic.
- Remove, dismantle, demolish or destroy a vehicle or a building or other structure.
Under Section 78, a district disaster coordinator or a declared disaster officer may direct the owner of any property, by an approved notice, to put the property under the control or at the disposal of the person stated in the notice. For a residential premises or business premises the written approval of the relevant district disaster coordinator is required.
Protection from liability
The Act provides certain persons with protection from legal liability. It provides that civil liability does not attach to:-
- The State.
- A Minister.
- A Local Government.
- An Official,
because of anything done or omitted to be done under The Disaster Management Act 2003 in good faith and without reckless disregard for the possibility of injury to persons or damage to property.
An "Official" is said to include:-
- A member of the State Disaster Group, District Disaster Group or Local Disaster Group.
- A declared disaster officer.
- An authorised rescue officer.
- A person authorised to exercise rescue powers.
- A person required to give reasonable help to a declared disaster officer, district disaster coordinator or authorised rescue officer.
- An SES member.
- An emergency service unit member.
So for example, if a policeman exercising declared disaster powers gave a direction to a person to allow water to flow through a property to avoid that property floating down river and possibly cause damage to critical infrastructure, then arguably no claim can be made against the Qld Police Service if that decision was made in good faith.
While the Act protects key disaster personnel from being sued on the one hand, on the other it provides that a person who suffers loss or damage because of the exercise of a power by such a person or organisation is entitled to compensation. The compensation to be paid by the State is not payable where the loss or damage is covered by a policy of insurance.
Section 130 applies to insurance policies covering property damage. If such damage is caused by the exercise of a power or performance of a function by a person under The Disaster Management Act 2003 looking to protect property from damage, or persons or animals from death or injury, then for the purposes of the policy such damage is deemed to be damage caused by the event for which the policy provides cover. The section does not apply if the person exercising the power does so negligently.
The deeming provision only applies to policies which cover the event ie. flood or flash flooding. So for instance, conduct undertaken pursuant to the Disaster Management Act 2003 causing property damage which is excluded or not covered because it is intentional damage may be brought back within cover.
Many home policies which cover flood exclude cover for confiscation or damage caused by the police or government authorities. However where the police or government authority are acting pursuant to the Disaster Management Act 2003 such exclusions won't apply. To this extent, the Act effectively rewrites the insurance policy and extends cover to events which are otherwise excluded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.