The tricky part really starts once the emergency ends, explains John Hopkins, an expert in emergency management and the law.
What does a state of emergency actually mean?
A state of emergency is a legal declaration under the Civil Defence and Emergency Management (CDEM) Act, that provides local or central government with additional powers to deal with events that have proved beyond the capacity of the emergency services. It allows coordination across local or central multiple agencies, under the direction of a “controller”. This controller is also given additional legal powers as listed in the act. These are quite extensive but specific and include closing of roads, requisitioning of vehicles, forced evacuations, provision of information, etc. In addition, the police (and anyone authorised by the controller) also has the rather draconian power to order anyone to do (or cease doing) anything that that would assist with the response or limit the emergency. Refusal to comply with these directions is a criminal offence.
These powers are actually quite commonly used (there were seven SoEs in 2022). What makes the 2023 one different is that it is a national state of emergency. These are much more rare and there have only been three such examples since the act came into force in 2002: those triggered by the Canterbury earthquakes, Covid outbreak and the current cyclone.
National states of emergency provide powers to the central government (exercised either by the director of Civil Defence or an appointed controller) to instruct any branch of government (including the armed forces) to assist with the emergency. A responsible minister also has the power to instruct them to do so (within the confines of the act).
Does that mean central government has come in and taken over?
No, not really. Civil Defence is a local government responsibility and the government’s role is to assist and co-ordinate. However, this is part of the problem with emergency management in New Zealand. Local authorities have the responsibility to undertake the task but not the funding (much of the Civil Defence response at the local level is carried out by volunteers). This has changed to some extent with the creation of National Emergency Management Agency, but it remains small and a bit player in the government machine.
Under a national state of emergency, the central government plays a large role, but local government still plays a big part in the local response, within the confines of any directions given nationally.
How long will the national state of emergency last?
A state of emergency can only last for seven days. However, it can be extended an indefinite number of times (each of seven days duration). We can expect this current one to last several weeks with regular extensions being announced on a weekly basis.
How do they know when it’s not a national emergency any more?
It is up to the responsible minister (or the prime minister) to decide when the situation is deemed to no longer be beyond the capacity of local CDEM groups and thus not a national emergency (it could still be a local emergency in specific areas though). This can happen at any time, although more likely the government will allow it to lapse at the end of a seven day extension and announce the “transitional” arrangements at the same time.
What does local government do in all this?
During the response phase, local government remains in the thick of it, primarily through the CDEM groups. These are collections of local officials (local government, fire, police, etc) organised at a regional level and designed to manage local emergency response. The normal processes of local government will also go on, although they will likely be impacted by the event, and local government will act under instructions from local CDEM groups (or controller) and the national director, minister or controller.
How will they consciously uncouple down the line?
This is where is gets tricky. According to the law, once the emergency is over we can move to the transition or recovery phase. Under CDEM, transition occurs directly after the end of the state of emergency and keeps a number of the emergency powers in place, including power of evacuation, closing of roads and the general power of direction mentioned above. These are exercised by a recovery manager (who by default is the director of Civil Defence).
These “transition” powers were introduced in the wake of the Canterbury experience where central government did not want to extent the emergency indefinitely (it’s a bad look) and thus introduced a new act which, in effect, gave it emergency powers for the next six years (the Canterbury Earthquake Recovery Act). This proved constitutionally controversially and practically problematic as the recovery in Christchurch did not go well. Thirteen years after the event, Christchurch is still a city of car parks.
Something similar happened after Covid, although this time the government really dodged a bullet as neither the CDEM Act nor the Health Act was designed to manage the extreme lockdowns and other measures made necessary by the spread of Covid-19. In the event the weak legal framework managed to get us through largely because people were so well behaved. The government again introduced a swiftly passed and controversial act to fill the gap which, to be fair, it was a lot better that the CER Act.
The question now is: once the water subsides and the true extent of Gabrielle’s consequences become clear, will the government feel that the transition powers of the CDEM Act are enough for the next phase? I doubt it. In which case, local government may again find itself side lined by central government decision-making (GabRA?).
Was this the right thing to do?
The CDEM Act was designed to deal with emergency responses of this type and thus declaring a national state of emergency was the right thing to do in the circumstances. The questions will come as time goes on. If, as seems likely, the minimal “transitional” provisions of the CDEM Act prove unable to cope with the extent of the recovery, the government will likely move to create a new legal framework to manage it. Which begs the question, why don’t we prepare one in advance?
In addition, there are big legal questions to be asked about our preparation for such events generally. There is no such thing as a “natural” disaster. Disasters are created by human vulnerability to hazards. We allow buildings that are vulnerable to earthquakes to stand, build on flood plains, and construct infrastructure that cannot cope with predictable natural events. The legal framework allows this, and no amount of emergency declarations will fix it. The best time to respond to an emergency is long before it happens. The law needs to recognise this, and quickly.