Published works

he research question posed, and considered in this paper, is ‘in the absence of legislation, what is the role in, and more importantly what power might the Commonwealth have, when responding and recovering from a catastrophic disaster? Currently the Commonwealth has no overarching or specific counter-disaster legislation.  This paper argues that even in the absence of legislation there is Commonwealth power to respond to emergencies within the areas of Commonwealth responsibility.  Further there is an inherent power to deal with catastrophic disasters vested in the Crown as part of the prerogative power of the Crown and now incorporated into the Executive Power of the Commonwealth.  Exactly what constitutes a ‘catastrophic disaster’ would be open to debate and, in the absence of legislation, may be the subject of judicial challenge. It is argued that a disaster where a state government is overwhelmed so that the state itself is at risk of collapse and there is no effective state government would be a national catastrophic disaster that would justify Commonwealth intervention in the affairs of the state in order to restore effective state government.  What disaster, short of the collapse of state government, would be sufficient for direct Commonwealth action cannot be conclusively defined.   
In the absence of legislation and a truly catastrophic event, the Commonwealth’s authority to exercise national leadership and coordinate Commonwealth, state and private assets will depend on good will and cooperation.  The extent of the Commonwealth’s executive power cannot be identified until the circumstances of the particular disaster have been identified.
Failing to define, in legislation, the role and power of the Commonwealth will leave the Commonwealth to ‘cope ugly’ with any particular catastrophe.  That may be acceptable as it will leave the Commonwealth with adaptive flexibility. It has however been a consistent recommendation of commentators that the Commonwealth should legislate to ensure that the Commonwealth is able to cope with an inevitable catastrophe.   
The absence of legislation makes it impossible to define, except in the most generic terms, what the Commonwealth’s powers are.