The State parliament is considering the Emergency Management (Control of Response Activities and Other Matters) Bill 2015 (Amending Act). It may be of interest to SES members.
The bill’s second reading was moved in the Legislative Assembly on 14 August 2015. This note assumes it will become law without amendment.
If a word is bolded, I have included a definition or commentary under heading 2.3.
2.1 Entry Power
Section 27 of the Amending Act amends the Victoria State Emergency Service Act 2005 so that a person may enter land or premises without the consent of the occupier if a Service member reasonably believes that entering is urgently required to protect life or property in the course of –
(a) responding to or preparing for a flood, earthquake or storm; or
(b) providing a rescue service.
2.2 Levee Power
Under the Amending Act, if the power to enter is exercised, the person entering may build, remove or alter a levee at that location, or remove debris (including fallen trees) if a Service member reasonably believes that doing so is required to protect life or property. As soon as practicable after the threat has passed any levee must be restored (or removed) so to return the land to its pre-existing condition, unless the change in condition was damage caused by the emergency itself.
The power to create, remove or alter levees can be exercised on private property and also on –
(a) Crown land;
(c) a national park, State park, marine national park, marine sanctuary or land that is otherwise a park under the National Parks Act 1975;
(d) land that is a State Wildlife Reserve or a Nature Reserve under the Wildlife Act 1975;
“person” – This can be either a VICSES member or any other person who voluntarily places their services at the disposal of VICSES’s chief offer, operations and is acting under the direction of a VICSES member.
“occupier” – It would be interesting to consider whether one could enter if an owner of lands installed a sign stating “no entry by emergency services without prior permission”.
“Service member” – This includes paid, operational and probationary VICSES members.
“reasonably believes” – This means that the belief would be held by a reasonable person (or, more likely, a reasonable SES member) in the circumstances, and not that the individual concerned thinks that their belief is reasonable.
”flood, earthquake or storm” – Curiously, by implication this excludes tsunamis for which VICSES is the control agency.
If a word is bolded, I have included a definition or commentary under heading 3.3.
If the power to enter without consent is exercised, the occupier of the land or premises must be notified in writing of the entry and actions taken within 7 days.
Emergency response activity involving levees may create a risk of civil liability. Section 16 of the Water Act 1989 says that –
(a) If water flows from a person’s land to any other land, and that flow is not reasonable, and injury/damage/economic loss occurs, then the person who caused the flow is liable to pay damages.
(b) If a person
(i) interferes with a reasonable flow of water onto any land; or
(ii) negligently interferes with a non-reasonable flow of water onto any land
and due to the interference water causes injury, damage or economic loss, then the person who interfered with the flow is liable to pay damages.
Section 20 of the Water Act 1989 lists a number of matters to be considered in assessing whether a flow of water is reasonable or not reasonable. The Amending Act states that if a flow of water caused by VICSES action in relation to a levee is in issue, whether or not that action was in response to an emergency must be given greater weight than any other factor.
“negligently” – Relevantly here, a person would be acting negligently if they fail to exercise the level of care that a reasonable person (or reasonable SES member) would exercise in all the circumstances.