The Commonwealth of Australia

International Disaster Response Law in the Pacific

Overview

Legal Preparedness for International Assistance Assessment

1. Does Australia have a clear legal framework for disaster risk management which includes procedures relating to international disaster assistance?
The Australian system provides for a relatively comprehensive legal framework which revolves around State risk management legislation, however procedures around international disaster assistance are minimal. The core responsibility for disaster response lies with State and Territory governments but is complicated by the fact that these governments have no formal responsibility for international affairs (or authority to act internationally). A process for the Commonwealth government to request international assistance exists, although it does not preclude State governments also making such request. A number of state agreements explicitly envisage such arrangements with international actors’ governments.

 

Assessments on the need for assistance are provided by the State or Territory requested but do not need to include a request for international assistance. The request under COMDISPLAN request is one for Commonwealth assistance. This then becomes a request for international assistance when EMA and DFAT (and potentially the affected jurisdiction) accept that international assistance is required. This occurs when it is accepted that the relevant expertise/resources do not exist in Australia. Much of this appears to be based upon custom and practice founded upon the existence of goodwill between agencies rather than a formal legal framework.

 

The State Acts and disaster plans do not address the questions of what criteria will be used to determine if and when international assistance will be requested. Instead, COMDISPLAN is activated when an affected jurisdiction requests Commonwealth assistance. A State cannot (and need not) specifically direct a request for international assistance through the Commonwealth. If a State/Territory wants to request international assistance but is met with Commonwealth resistance, then the Commonwealth is able to refuse to make the request. If a request is deemed acceptance, neither the COMDISPLAN and State plans provide detail on how requests for international assistance should be made or to whom. In particular, there is no provision in Australian law for joint Australian/United Nations needs assessment nor specific provisions for providing assistance through the offices of the UN.

 

The EMA is responsible for recording offers of assistance from overseas and for passing those offers to the affected jurisdiction and advising the offeree whether the assistance is required. When international assistance is forthcoming, DFAT and the EMA will put in place necessary arrangements to receive the international assistance and work with the State/Territory to move the assistance to the area of need. Procedures envisaged in COMDISPLAN for the receipt of international assistance do not cover all eventualities. However, there are private agreements with a number of international NGOs to resolve this. Nevertheless, it has been reported that the delivery of international post-disaster assistance can be delayed due to “procedural ambiguities frequently found in domestic legislation and policy on the initiation of international disaster assistance”. One notable gap is that Australian law does not address the question of if, and when, assistance from foreign militaries will be accepted.

 

In addition to the above generalist structure, Australia is party to a number of specific conventions related to astronauts, persons travelling on civil aviation, search and rescue missions for people in distress at sea and nuclear accidents. Regionally, Australia has an agreement with Indonesia to cooperate in “facilitating effective and rapid coordination of responses and relief measures in the event of a natural disaster or other such emergency”.
2. Do Australia’s laws and regulations clearly set out a focal point for coordinating international disaster assistance?
As States and Territories have no responsibility for foreign relations, COMDISPLAN envisages that requests for international assistance will be directed through the Commonwealth. International agencies are expected to work with the coordinating authorities and make their services available as part of overall disaster response. The exact nature of this authority varies depending upon the state concerned, but each will have a coordinator in place to manage the response to a disaster within their territory. An international agency that refuses to work with the coordinating agency or agencies would not enjoy any legal protection and could well be refused access to a disaster-affected community. Despite the overarching responsibility for the Commonwealth in relation to international assistance envisaged by COMDISPLAN, a number of states and territories have legislation, which envisages a direct relationship with such agencies. In addition, other specific agreements (often involving state agencies) exist outside the COMDISPLAN framework.
3. Do Australia’s laws and regulations outline the roles and responsibilities of different institutions relating to international disaster assistance?
​There do not appear to be specific laws and regulations setting out the responsibilities of different institutions in relation to international disaster assistance. Instead, international assistance is handled as part of the domestic response mechanism and the specific requirements of international disaster assistance are handled through ordinary Australian and state law. The COMDISPLAN provides somewhat contradictory advice on this point. While stating that “It is unlikely that the legislative requirements of our stringent border control arrangements will be waived” it is also states that “given the urgency of the situation, it is expected that border control agencies will manage the situation to ensure that assistance is able to get to the disaster scene as quickly as possible”. Beyond this the Australian governments are merely “encouraged” to grant visas, preferably without cost, to waive or expedite the process to obtain visas and permits, recognise foreign qualifications and facilitate freedom of access to the disaster area.
4. Do Australia’s laws and regulations outline a process for requesting/welcoming offers of international disaster assistance, and for terminating international assistance?
No State or Territory disaster plan specifically addresses the need for international assistance. The default assumption appears to be that that Commonwealth and inter-state assistance alone will be sufficient. When international assistance is requested at the Commonwealth level, COMDISPLAN envisages that international assistance will be channelled through a single contact point (Emergency Management Australia) but in practice, international assistance can be arranged through a number of channels. There is therefore a potential for confusion and duplication.

 

There is no clear criterion on when international assistance will be sought nor when it will be terminated or how foreign assistance will be phased out. The only legal requirement is that “… EMA will liaise with State authorities to arrange debriefing” of international relief teams prior to their departure. The Australian (Commonwealth) legislation does not define an “international recovery” or “disaster relief” period.

 

There are no specific provisions for the pre-positioning of stock or for the handling of unsolicited bi-lateral donations.
5. Do Australia’s laws and regulations provide for necessary legal facilities to be provided to international assisting actors?
There are no specific provisions in Australian law to grant legal facilities to assisting States. However, Australia does have Status of Forces agreements (SOFA) with six countries. These cover rights of entry, status of personnel, recognition of qualifications and the importation of equipment. All but one are bilateral.

 

The Commonwealth Minister is empowered to grant a “Special Purpose Visa”, which can be applied to the facilitation, and the receipt of, international disaster assistance. This visa can be granted by the Minister to named members of an international assistance team or to people who fall within a descriptive class. Without a special purpose visa, international assistance teams will need to comply with normal migration requirements and appropriate visa requirements. A number of special purpose visas have been granted.

 

Due to the Trans-Tasman Travel Arrangement, international teams travelling on NZ passports are permitted to enter Australia without obtaining a specific visa and are granted a “special category visa” on the presentation of their NZ passport at the Australian border.
6. Do Australia’s laws and regulations set out quality standards for international assisting actors?
Recognition of professional qualifications are generally a matter for State law rather than Commonwealth law. Only the Australian Capital Territory provides specific provisions for international assistance and professional qualifications. Where foreign assistance is provided (in accordance with a cooperative agreement) these permit overseas qualifications to be recognised in the Territory without further need for certification or registration. No other state or territory has enacted such provisions. In all other states, a person wishing to practice a particular trade or profession will need to comply with the requirements of each State or Territory, whether or not they are connected with an international disaster response team. For example, medical practitioners must be registered in the State or Territory in which they wish to practise their profession.

 

Under the ACT legislation, when international assistance is being provided to the Territory by health professionals under a “cooperative agreement”, overseas qualifications will be accepted without the need for further certification. If the ACT Emergencies Act does not apply, then the territory’s Ministry for Health may waive registration requirements for incoming health professionals if, in the opinion of the Minister, it is “in public interest to do so”. Other State and Territory legislation does provide for non-registered medical providers to provide assistance in exceptional circumstances. New South Wales, Northern Territory, Queensland and Tasmania all have provisions to this effect. For example, NSW legislation provides that a “recognised foreign” doctor may give “… medical or surgical advice, service, attendance or operation … in an emergency” as if they were registered in NSW. However, this provision is slightly misleading as it only applies to medical practitioners recognised as such in New Zealand or another Australian jurisdiction.

 

In Victoria, standard procedures allow that a foreign health practitioner can be registered, if the relevant health registration board is satisfied. However, the Minister for Police and Emergency Services (as Emergency Coordinator) may waive the requirement for registration, if compliance by the Medical Board with the Health Professions Registration Act would hinder disaster operations.

 

Other states provide alternative methods for allowing exceptions to the general rule that a medical practitioner must be registered in the state concerned to practice legally but these are not related to emergencies. In South Australia the Governor (on the advice of the relevant Minister) may make a proclamation exempting an individual from the requirement to register if, in the Governor’s opinion, “good reason exists for doing so in the particular circumstances of the case”. Such an exemption may be subject to conditions.

 

In WA, general procedures exist to allow exceptions if “… registration of the applicant would enable an unmet area of need to be met and the applicant has suitable qualifications and experience to practice medicine in that area of need”. This could be utilised in the event of a disaster event requiring international assistance because an “unmet area of need” (as determined by the Minister for Health) would be created by a disaster which exceeds the capacity of the relevant Australian agencies.

 

Australia is party to a number of international treaties, which contain obligations relevant to the provision of international relief goods and equipment. The International Convention on the Simplification and Harmonization of Customs Procedures requires parties to give priority clearance to relief consignments and to allow them to be imported without duty. In addition, the Convention on the Facilitation of International Maritime Traffic requires that Australia facilitate the “arrival and departure of vessels engaged in natural disaster relief work” and “the entry and clearance of person and cargo arriving” in those vessels. The Civil Aviation Convention contains similar obligations around the entry, departure and transit of relief flights, and the early entry clearance for people and goods arriving on relief flights. In addition, the Airport Act allows the Minister to direct an airport to provide airport services for “defence-related purposes and for emergency or disaster relief”.

 

However, in the absence of specific legislative provisions, there is no power vested in the Minister to waive or relax customs procedures to facilitate the receipt of international post disaster assistance.

 

Incoming emergency workers must comply will all quarantine requirements and COMDISPLAN assumes that the entry of goods, equipment and rescue dogs “… will be subject to normal Australian border control arrangements”. The Australian Quarantine and Inspection Service (“Quarantine”) and the EMA provide Guidelines for Urban Search & Rescue Taskforces Entering or re-entering Australia. These guidelines simply provide guidance for incoming urban search and rescue teams to prepare for the necessary Quarantine inspections and do not create an alternative process.

 

Medicines imported to Australia must be registered/listed with the Therapeutic Goods Administration. However, the requirements for registration can be waived by the Minister in order to be “made available urgently in Australia in order to deal with an actual threat to public health caused by an emergency that has occurred”. Such an exemption may be granted subject to specific conditions and the goods imported must still meet Australian standards and those that remain unused must be disposed of.

 

Registration of vehicles are a matter for States and Territories. In general, the regulatory frameworks allow for the recognition for foreign driver licenses and registrations.

 

The Radiocommunications Act 1992 (Cth) allows the Australian Communications Media Authority to exempt emergency organizations, from its licence and meet certain standards obligations. However, Australia is not a signatory to the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations and no Australian disaster or emergency management legislation makes particular mention of the emergency use of telecommunications devices.
7. Do Australia’s laws and regulations set out eligibility requirements for international assisting actors to receive legal facilities?
There is a limited legislative framework to provide some limited legal protection to people acting under the authority of the Commonwealth, State or Territory Government, the controller or pursuant to the terms of the relevant emergency act. The nature of the protection varies across jurisdictions. In some cases, legislation bars claims for compensation while in others the claim is redirected to make the State (Crown) vicariously liable for the negligence, or improper conduct, of an emergency worker (or organization) taking part in disaster related operations.

 

In Victoria, immunity is very limited and only covers volunteer emergency workers including international volunteers acting on behalf of agencies with authority under the State Disaster plan. This does not extend to paid staff or international agencies acting on their own initiative.

 

The Australian legal framework assumes that international assistance is being delivered by organisations that are formally established in another country are charitable in nature and will operate as part of the formal disaster relief effort.

 

When this is not the case, then the international assisting body may need to register as a foreign corporation (and comply with the concomitant regulatory requirements) under the Corporations Act. Once registered foreign corporations have legal status and are subject to the normal provisions of Australian law. Such agencies will be subject to Australian tax law. A foreign not-for-profit agency may be eligible for tax exemptions.
8. Do Australia’s laws and regulations establish a specialised unit for expediting the entry of international disaster assistance?
All states and territories have a legislative provision to provide for the control and coordination of disaster operations but there is “national focal point” with sole and clear responsibility for managing the Commonwealth’s disaster response and by extension the international response to a disaster in Australia.

 

Although COMDISPLAN commits the Department of Foreign Affairs and Trade (DFAT) and the EMA to put in place necessary arrangements to receive the international assistance and work with the State or Territory to move the assistance to the area of need it is not clear how this will be achieved.

 

Procedures envisaged in COMDISPLAN for the receipt of international assistance are limited but more importantly, the Director of EMA has no statutory authority to direct any of the relevant Commonwealth agencies, including Customs, Immigration or Quarantine.

 

This creates the potential for significant confusion and delay around international assistance. For example, bringing in medications to a major airport could require the involvement of four agencies using four separate legislative instruments.
9. Do Australia’s laws and regulations provide adequate transparency, safeguards and accountability mechanisms governing international disaster relief and initial recovery assistance?
There are no requirements that assisting agencies conform to particular standards of transparency or accountability. Incoming agencies will be accountable to the normal standards of Australian law, if applicable.

 

When international assistance is forthcoming, the Department of Foreign Affairs and Trade (DFAT) and the EMA will put in place necessary arrangements to receive the international assistance and work with the State or Territory to move the assistance to the area of need.
10. Do Australia’s laws and regulations outline procedures for international disaster assistance sent from and transiting through Australia?
Procedures for international assistance originating in Australia are outlined in the Australian Government Overseas Disaster Assistance Plan (AUSASSISTPLAN). This covers most aspects of international assistance provided by the Australian state. The plan includes provisions relating to activation (and deactivation), authorisation, physical and technical assistance, defence force assistance, provision of goods and services, logistics, finance, reporting requirements, overseas coordination and liaison with overseas authorities amongst other elements.

 

In addition to AUSASSISTPLAN, specific agreements exist to regulate particular forms of international assistance. The “Joint Statement on Disaster Relief Cooperation in the South Pacific” is a particular example of these. The FRANZ Arrangement as it is generally known is not a formal treaty but rather an informal agreement between France, Australia and NZ to “… maintain pragmatic, flexible arrangements to allow for a speedy response” to natural disasters in the Pacific region. The arrangement also commits the three states to “should exchange information to ensure the best use of their assets and other resources for relief operations after cyclones and other natural disasters in the region”.

 

As part of its Humanitarian Action Policy Australia has adopted the Principles and Good Practice of Humanitarian Donorship.

Laws, policies, plans and other resources