Australia's international disaster response : laws, rules and principles

This thesis reviews the law that governs Australia’s international, natural disaster response arrangements An international response to a disaster occurs when aid is sent to, or received by, a state that has been affected by the disaster event. From Australia’s perspective this means there is an international disaster response if Australia sends disaster relief to an affected state or if Australia, affected by a disaster, receives assistance from another state or internationally based nongovernment or inter-government organisation. To conduct this review of Australia’s legal position, relevant international law is identified and it is demonstrated that, although there are theoretical scenarios that could justify the provision of international assistance without the consent of the affected state, for all practical purposes the consent of the affected state is a necessary pre-condition for the delivery of international disaster assistance. This means that Australia will not send aid without the consent of a disaster-affected State, and Australia need not receive assistance unless that is consented to by the Commonwealth government. After reviewing the international law of general application between states, particular bi-lateral and multi-lateral agreements that Australia has entered are reviewed and their impact upon Australia’s legal position on sending or receiving disaster assistance is identified. Having identified international law that impacts upon Australia, relevant Australian domestic law is considered. This analysis identifies the basis of Commonwealth legislative power in the area of disaster response and identifies legislation from Canada and the United States that can serve as examples for Australian legislative action. Australian law and policy is then benchmarked against the International Federation of Red Cross and Red Crescent Societies’ Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (2007). The process of reviewing and benchmarking Australia’s law and policies shows that the legal and policy arrangements that are in place do not adequately address foreseeable legal issues that will arise in the event of a catastrophic natural disaster in Australia, or where Australia wishes to provide natural disaster relief assistance to another state. It is the recommendation of this thesis that the Commonwealth should pass a comprehensive counter-disaster Act to formalise and strengthen Australia’s ability to respond to a catastrophic natural disaster both in Australia and overseas. A model Act, based on Canadian, American and Australian state and territory legislation, is developed. The model Act identifies the essential features that should be incorporated into Commonwealth legislation. This thesis identifies the law and policy applicable in Australia as at 6 February 2009. On 7 February 2009 bushfires swept through Victoria killing 173 people and destroying at least 2000 homes. At the same time floods in Queensland and New South Wales did significantly more property damage. This was followed by cyclone Hamish off the Queensland coast. During the cyclone a cargo ship, the Pacific Adventurer, lost several containers of fertiliser and 230 litres of fuel, causing a widespread environmental emergency. There is to be a Royal Commission into the Victorian fires and there will, inevitably, be ‘lessons learned’ reports from the other events. Whether or not these reports will lead to recommendations regarding Australia’s emergency arrangements remains to be seen, but the outcomes from the inquiries into these events may well impact upon the findings in this thesis. Accordingly this thesis identifies the position at February 2009, but this will inform any subsequent recommendations for change arising out of the 2009 natural disasters.