Know the bushfire’s behaviour, manage the bushfire, protect the house, protect the nation.

What is compulsory evacuation and what are your rights?

Notes from the Victorian Bushfire Royal Commission Report

The law in Victoria enables the evacuation of people threatened by fire (Section 31(3) of the Country Fire Act 1958) but does not support the compulsory evacuation of those with a pecuniary interest in any property under threat (Section 31(4))

Section 31(4) has become known as the ‘pecuniary interest exception’:
Nothing in this or the last preceding section shall authorize the removal from any land building or premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.

There can be no question that the pecuniary interest exception encompasses a person who wishes to stay and defend their home against a bushfire.

Evacuation under section 31(3) of the CFA Act may be initiated by a member of Victoria Police, or by the Chief Officer of the CFA, any officer exercising the Chief Officer’s powers, or an officer in charge of a brigade, and is physically carried out by police.

Evacuation is dealt with in a similar way in the Emergency Management Act. If a State of Disaster is declared, the powers of the Coordinator in Chief include a power to ‘compel the evacuation of any or all persons from the disaster area or any part of it’. but this power may not be exercised ‘so as to compel the evacuation of a person from any land or building if the person has a pecuniary interest in the land or building or in any goods or valuables on the land or in the building’.

In addition, section 36A of the Emergency Management Act enables a senior police officer to declare an area to be an ’emergency area’ if the size, nature or location of an emergency makes it necessary to ensure public safety. Once an emergency area has been declared, police may direct people on roads, footpaths or in open spaces to leave the area by the safest and shortest route.14 This power does not extend to directing a person to leave their own property

Strictly speaking, the relevant legislation does allow for a limited form of compulsory evacuation of areas threatened by fire, subject to the pecuniary interest exception. However, the pecuniary interest exception is so broad that it would be impractical for police or the CFA to enforce the compulsory evacuation of an area threatened by fire.

Argument against compulsory evacuation is that people have a civil right to stay and defend their homes, and to risk their lives in doing so is their choice.

Witnesses Dr Ferguson and Mr O’Neill said in no uncertain terms that they would not have left their properties even if ordered to do so by police. The resources required to remove unwilling evacuees could be used to better effect in other ways, such as assisting others who do wish to leave.

On a more pragmatic level, it is said that if people are unable to stay and defend their homes the demands on the fire services would increase, and more houses would be lost.
Mr O’Neill’s experience bore this out:
I am extremely relieved that I was not forced to evacuate from my house in Steels Creek on 7 February 2009. If that happened, our house would almost certainly have been destroyed and my family might now be homeless.

Handmer and Tibbits (2005) conclusion:
The “stay or go” approach highlights the tension between the ideology and practical need of asking those at risk to take more responsibility for managing their own risks; and the steady
expansion of police powers by governments; This expansion of powers reduces the legally available options for those wanting to protect their own property as they may be ordered to leave at any time-thereby importing an inherent ambiguity into the approach.

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