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Giving notice of local transition period


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The Civil Defence Emergency Management Amendment Act 2016 amends the Civil Defence Emergency Management Act 2002 to:

  • provide for local transition periods to assist recovery. This enables the use of powers that are not normally available to Recovery Managers (new sections 94A to 94P)
  • give CDEM Groups responsibility for appointing people to give the notice for a local transition period (amended section 25)
  • provide for a Mayor or an elected member of a territorial authority (if mayor is absent) to give notice of a local transition period

Specifically, the CDEM Group:

must appoint at least one person (a representative of the Group) to give notice of local transition periods for the Group’s area – this mirrors state of emergency requirements (section 25).

must appoint a suitably qualified and experienced person to be a Group Recovery Manager.

may appoint one or more Local Recovery Managers (section 30).

Mayor

A Mayor may give notice of a local transition period for the territorial district. If the Mayor is absent, an elected member of a territorial authority may give notice of a local transition period – this mirrors state of emergency requirements (section 25(5)).

What matters must be considered prior to a notice of a transition period? (new section 94B)

  • There are legal tests to meet.
  • It must appear to the person giving the notice that a transition period is required.
  • A notice must be `in the public interest’ and ‘necessary or desirable to ensure a timely and effective recovery’ (see section 94B(2) for a local transition period).
  • Have regard to the area, district or wards affected and whether the focus is moving from response to recovery and whether a state of emergency is about to expire or be terminated.
  • If no state of emergency has been declared, approval from the Minister of Civil Defence is required to issue a notice of local transition period.
  • There is the option (similar to declaring a local state of emergency) of a notice of a local transition period covering areas not directly affected by an emergency. This may be necessary if affected districts or wards require the assistance of neighbouring districts or wards (section 94B(9)).

What if the area affected is two or more local CDEM Groups’ area?

Same situation as applies now, if local states of emergency cover more than one CDEM Group: affected CDEM Groups (and/or Mayors) coordinate but give their own respective transition notices.

If a significantly large or complex situation exists notice of a national transition period may be given by the Minister. 

How do you change from state of emergency to transition period? 

If there is to be a transition period, generally it will begin when the state of emergency will end, or be terminated. The Act provides for different scenarios to enable a smooth changeover (refer section 94C). Moving to a transition period generally reflects that it is no longer considered necessary to have a state of emergency in place. 

A local transition period comes into force at the time and date specified in the notice for transition. This could be either at the expiry or termination of the state of emergency or the date on the transition notice (section 94C(1) and 94C(2)) 

There are no provisions to allow the carry over of powers or actions from the Controller or a constable under a state of emergency to a local transition period. The Recovery Manager will need to consider the need for any use of powers (including continuing things like placarding and limitation on access) under a local transition period. 

Note: if a state of emergency is declared it automatically overrides any transition period (section 94E(7)). 

How long does a local transition period last? 

  • They last 28 days (unless extended or terminated earlier) (new section 94C). 
  • Extensions - a local transition period can be extended for a further 28 days by a person authorised to do so – i.e. appointed by section 25, the Mayor or Minister (new Section 94D). 
  • Terminating - a local transition period can be terminated by a person authorised to do so – i.e. appointed by section 25, the Mayor or Minister (new Section 94E). 
  • A notice must be in a form a prescribed under the Civil Defence Emergency Management Regulations 2003 or a form of similar effect. There are requirements for the content of notices in section 94E and 94F that must also be met. 
  • There are also publishing requirements for giving a notice, extending it (new section 94F) and terminating it (section 94E(4)).

Requirements for Extensions 

A local transition period can be extended more than once. However, if it is extended for a third or further time, the Minister must be notified, allowing him or her to inform the House of Representatives (section 94D(7) and (8)).

What are the required contents for a transition notice?

Section 94F sets out the content of transition notice and the publication requirements

The Civil Defence Emergency Management Regulations 2003 provide forms for giving notice of extending or terminating a transition period. These can be used or a form of similar effect.

What areas can a local transition period apply?

A local transition period can apply to 1 or more districts or wards within an area (Section 94B(1)).

Under section 94B(8) a local transition notice can be given over the whole area of a CDEM Group or a district within an area of a CDEM Group, which means any other local transition period in place ceases to have effect.

Section 94B(9) provides for giving ‘further notice’ of a local transition period for another district or ward in the area of the CDEM Group not affected by the emergency if it appears to the person giving notice that the resources of that other district or ward are needed to assist the first area.

When does a local transition period come into force?

Where a notice of local transition period is given (94(B)), for which a state of emergency has been declared the transition period comes into force (94(C)(1))—

(a) on the termination of the state of emergency under section 72(1); or

(b) on the expiry of the state of emergency under section 70(3) or 71(4), if the transition notice states that the transition period comes into force on the expiry of the state of emergency.

Section 94C(2) In any other case (for example when there was no state of emergency), a transition period comes into force at the time and on the date the notice of transition is given.

Section 72(3) In addition, a state of local emergency is terminated when a notice of a local transition period given by the Minister under section 94B(3) comes into force.

Are there requirements to publish a local transition period?

Section 94F(4) A person who gives notice of a transition period should as soon as practicable notify the public by publishing the notice –

  • in 1 or more newspapers circulating in the areas, districts, or wards to which the notice relates; and
  • on an Internet site to which the public has free access; and

The person must also ensure that the notice is published in the Gazette as soon as practicable.

What is the broad process for giving notice of a local transition period?

  1. Make sure only those who are appointed or otherwise authorised to give a local transition notice do so? (section 25)
  2. Consider where the local transition period may be needed.
  3. The person appointed or otherwise authorised to give notice of a local transition period must go through the tests in section 94B.
  4. Where there has been no proceeding state of emergency, the person needs to seek ministerial approval to give notice of a local transition period. They can do this by writing to the Minister.
  5. After going through the tests the person should completed a form to give notice of a local transition period (see section 94F and Schedule 1AA(6)) and give the notice. The person will need to consider when the notice of a local transition period should commence and take the necessary action to either terminate the state of emergency or wait until the expiry of a state of emergency.
  6. Once the person has signed the notice, they should publish the notice as per section 94F.
  7. The person should also regularly review if they need to continue to have a local transition period. If not, it can be terminated earlier than the 28 days. If it is needed, it can also be extended (section 94D).

 


Procedure for giving notice of Local Transition Period

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Who can give notice of a local transition period? (Section 25 and Schedule 1AA)

  • A person appointed by CDEM Group (section 25(1)(b)) [Must be a representative of the Group]
  • If no person appointed, a representative of any member of the Group (section 25(4))
  • Mayor of a territorial authority or an elected member on behalf of mayor if the mayor is absent (section 25(5))
  • Minister (94B(4))

Requirements for a local transition notice

Section 94F sets out the content of transition notice and the publication requirements, including that it must be in a form prescribed by regulations (CDEM) or a form of similar effect.

Where: Setting out the area of a local transition notice

Section 94B(1) – 1 or more districts or wards within the area

Section 94B(8) – can give notice over whole area of CDEM Group or a district within area of CDEM Group, which means any other local transition period in place ceases to have effect

Section 94B(9) provides for giving ‘further notice’ of a local transition period for another district or ward in the area of the CDEM Group not affected by the emergency if it appears to the person giving notice that the resources of that other district or ward are needed to assist the first area.

Tests

Test for giving notice of a local transition notice

Section 94B(1) – ‘if it appears to that person that a local transition period is required’

Section 94B(4) and (5)

(4)  Without limiting subsections (1) to (3), the Minister or the appointed or otherwise authorised person must be not give notice of a local transition period unless satisfied that invoking the powers to manage, coordinate, or direct recovery activities is—

(a) in the public interest; and

(b) necessary or desirable to ensure a timely and effective recovery.

(5)  In deciding whether a local transition period is required, the Minister or the appointed or otherwise authorised person must have regard to—

(a) the areas, districts, or wards affected by the emergency; and

(b) whether the focus of activities in any area, district, or ward is moving from response to recovery, including whether a state of emergency is about to expire or be terminated.

Additional tests for Minister to give notice of a local transition notice

Section 94B(6) and (7)

(6) The Minister must also have regard to the capacity of any Civil Defence Emergency Management Group and any local authority in any area, district, or ward affected by the emergency to carry out recovery activities.

(7) Before giving notice under subsection (3), the Minister must, in a manner the Minister considers appropriate, seek and consider comment from any affected Civil Defence Emergency Management Group and the Mayor of any affected local authority, unless—

(a) it is impracticable in the circumstances; or

(b) in the opinion of the Minister, the urgency of the situation requires the notice of transition to be given immediately.

Additional test for appointed or otherwise authorised person where there is no state of emergency declared

Section 94B(2) requires ministerial approval where it is proposed to give notice of a local transition period where there is no state of emergency

Commencement: When a local transition period comes into force

Where a notice of local transition period is given (94B), for which a state of emergency has been declared the transition period comes into force (94C(1))—

(a) on the termination of the state of emergency under section 72(1); or

(b) on the expiry of the state of emergency under section 70(3) or 71(4), if the transition notice states that the transition period comes into force on the expiry of the state of emergency.

Section 94C(2) In any other case (for example when there was no state of emergency), a transition period comes into force at the time and on the date the notice of transition is given.

Section 72(3) In addition, a state of local emergency is terminated when a notice of a local transition period given by the Minister under section 94B(3) comes into force.

Duration of local transition period

Section 94C(4) provides that a local transition period ends 28 days after the time and date on which the period comes into force, unless extended or terminated earlier.

Publication of local transition notice

Section 94F(4) A person who gives notice of a transition period should as soon as practicable notify the public by publishing the notice –

  • in 1 or more newspapers circulating in the areas, districts, or wards to which the notice relates; and
  • on an Internet site to which the public has free access; and

The person must also ensure that the notice is published in the Gazette as soon as practicable.

 


Procedure for extending or terminating a Transition Period

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Who can extend a local transition period? (Section 94D)

  • The person who gave notice under s25(1), the Minister, or the person authorised to give notice, may extend a local transition period for a further 28 days.
  • A local transition period can be extended more than once, if an extension is required (s94D(2) and (7)). However, it is extended a third or further time, the person extending it must give the Minister a copy of the notice at the same time as notifying the public under s94F(4). The Minister is then required to inform the House of Representatives (s94D(8)).

Requirements for extending a local transition notice

Section 94F sets out the content for a notice extending a transition period, including that it must be in the form prescribed by regulations or a form of similar effect.

When does an extension come into force and end?

Section 94F(6) – provided the requirements for extending a local transition period are met:'

  • An extension comes into force immediately before the end of the transition period that is extended.
  • A transition period ends 28 days after the time and date on which the extension comes into force, unless terminated earlier.

Tests for extending a local transition period

Test for extending a notice of a local transition notice

Section 94D(2) – ‘if it appears to that person that a local transition period is required’

Section 94D(3) - In deciding whether an extension of a transition period is required –

(a) Must have regard to the areas, districts, or wards affected by the emergency; and

(b) Must be satisfied that invoking the powers to manage, co-ordinate, or direct recovery activities is –

(i) In the public interest; and

(ii) Necessary or desirable to ensure a timely and effective recovery.

Additional tests for Minister to extend notice of a local transition notice

Section 94D:

(4) In deciding whether an extension is required, the Minister must also have regard to the capacity of any Civil Defence Emergency Management Group and any local authority in any area, district, or ward affected by the emergency to carry out recovery activities.

(5) Before giving notice under subsection (2), the Minister must, in a manner the Minister considers appropriate, seek and consider comment from any affected Civil Defence Emergency Management Group and the Mayor of any affected local authority, unless—

(a) it is impracticable in the circumstances; or

(b) in the opinion of the Minister, the urgency of the situation requires the notice of extension to be given immediately

Who can terminate a local transition period? (s94E)

  • The person who gave notice of a local transition period (or the Minister or another appointed or person authorised to give the notice) may by notice terminate the local transition period (s94E(2))
  • If a state of emergency is declared over an area (or any part of an area) to which a transition period applies, the transition period ends without a termination notice being given.

Requirements for terminating a local transition period

  • Section 94E(5) sets out the content for a notice terminating a transition period, including that it must be in the form prescribed by regulations or a form of similar effect.

Tests for terminating a local transition period

Tests for Minister to terminate notice of a local transition notice

Section 94E:

(4) Before terminating a local transition period under 94E(2) the Minister must, in the manner the Minister considers appropriate, seek and consider comment from any affected CDEM Group and the Mayor of any affected local authority, unless –

(iii) it is impracticable in the circumstances; or

In the opinion of the Minister, the urgency of the situation requires the notice of termination to be given immediately.