1.1
The National Emergency Declaration Act 2020 (the Act) commenced operation on 16 December 2020, having passed the House of Representatives on 9 December 2020 and the Senate on 10 December 2020. Section 18 of the Act states:
18 Review of operation of this Act
The Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate, must:
(a)
begin a review of the operation of this Act immediately after this Act commences and report the Committee's findings to the Senate by 30 June 2021; and
(b)
begin a review of the operation of this Act by the fifth anniversary of the day this Act commences and report the Committee's findings to the Senate as soon as practicable after completing the review.
1.2
On 4 February 2021, the Senate Legal and Constitutional Affairs Legislation Committee (the committee) resolved to conduct an inquiry into the operation of the Act in accordance with section 18.
Conduct of the inquiry
1.4
The committee held one public hearing on 10 June 2021 in Canberra. Details of the public hearing, including a list of witnesses, are provided at Appendix 2.
Acknowledgement
1.5
The committee thanks all submitters and witnesses for their participation in the inquiry.
Structure of the report
1.6
This report consists of two chapters:
This chapter outlines the administrative details relating to the inquiry, the background and purpose, as well as an overview of the Act.
Chapter 2 examines the key issues raised in evidence, and provides the committee's view and recommendations.
Background to the Act
1.7
The following sections summarise the background to the Act.
Royal Commission into National Natural Disaster Arrangements
1.8
The Royal Commission into National Natural Disaster Arrangements (the Royal Commission) was formally established on 20 February 2020. The report was presented to the Governor‑General on 28 October 2020 and tabled in Parliament on 30 October 2020.
1.9
The Royal Commission considered the need for the federal government to have available to it a mechanism for making a National Emergency Declaration (NED). It acknowledged that state and territory governments are primarily responsible for responses to and recovering from natural disasters, and stated that 'the role of the Australian Government is largely to support states' and territories' responsibilities'.
1.10
The Royal Commission identified, however, that 'Australia's disaster outlook is alarming. States and territories alone may not be able to respond effectively to, or provide immediate relief or recover from, extreme to catastrophic disasters'. It stated that the federal government 'has unique capabilities, and is able to take a broader view of the national consequences of extreme to catastrophic disasters'. Recommendation 5.1 called for the provision of a Commonwealth declaration of emergency:
Recommendation 5.1 Make provision for a declaration of a state of emergency
The Australian Government should make provision, in legislation, for a declaration of a state of national emergency. The declaration should include the following components:
(1)
the ability for the Australian Government to make a public declaration to communicate the seriousness of a natural disaster
(2)
processes to mobilise and activate Australian Government agencies quickly to support states and territories to respond to and recover from a natural disaster, and
(3)
the power to take action without a state or territory request for assistance in clearly defined and limited circumstances.
National Emergency Declaration Bill 2020
1.11
The National Emergency Declaration Bill 2020 (the bill) was introduced to the House of Representatives on 3 December 2020. In his second reading speech, the then Attorney-General, the Hon. Christian Porter MP, stated:
The National Emergency Declaration Bill will implement recommendation 5.1 of the Royal Commission into National Natural Disaster Arrangements by establishing a legislative framework for declaring national emergencies…The Australian community expects and deserves swift and unambiguous action. That is why this government is delivering a unified framework for the use of Commonwealth powers during major emergencies. This bill will unify these emergency powers by establishing a consolidated list which will provide greater visibility to decision-makers of the full range of powers available in a national emergency.
1.12
The Attorney-General recognised that the experiences of the 2019–2020 bushfires and COVID-19 had demonstrated a need for further clarity, and that coordinated action would aid in the face of future disasters. He explained that the bill, and declarations made in accordance with it, issue 'a strong, clear message' to the public and 'all levels of government'. Thus, the bill would ensure that 'collective resources' could be coordinated both effectively and efficiently:
The declaration framework consolidates and streamlines existing Commonwealth emergency powers across the statute book. This will enable ministers and officials to have a complete picture of the powers that they can use to assist with the response and recovery effort. The making of a national emergency declaration will not automatically trigger the operation of these powers—rather, it will enliven the ability for ministers and officials to use an alternative streamlined test to respond to the declared emergency.
Legislated requirements for committee oversight
1.13
During debate in the House of Representatives, an amendment to section 18 was passed that requires the Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate, to begin a review of the operation of the Act immediately after its commencement and report back to the Senate by 30 June 2021. This provision was in addition to the pre-existing requirement that the committee conduct a review of the operation of the Act by the fifth anniversary of the Act's commencement and report the committee's findings to the Senate as soon as practicable after completing the review.
1.14
Shadow Attorney-General, the Hon. Mark Dreyfus MP, stated that this amendment was incorporated in order to facilitate the passage of the bill:
…as a condition of Labor supporting the swift passage of these bills during this sitting week, the government has agreed to the unusual process proposed by Labor that the bills will be reviewed by a Senate committee immediately upon passage of these bills through the parliament.
1.15
That same amendment also inserted a new section 14A to the bill, which requires the Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate, to begin a review of each national emergency declaration made under the Act by the first anniversary of the day the declaration is made, and report the committee's findings to the Senate as soon as practicable after completing the review.
National Emergency Declaration (Consequential Amendments) Bill 2020
1.16
Introduced alongside the bill was the National Emergency Declaration (Consequential Amendments) Bill 2020 (the Consequential Amendments Bill) to amend acts and regulations that contain powers that are used by the Commonwealth when responding to, or supporting the recovery from, emergencies. In his second reading speech, the then Attorney-General stated that the bill would 'add alternative tests for the exercise of these powers…where a national emergency has been declared' and would operate in three ways:
First, where the powers currently contain an 'emergency' test, the bill removes the legal requirement for each decision-maker to separately consider whether there is an 'emergency' in circumstances where a national emergency has been declared.
Second, in the case of powers that are often exercised in an emergency, but that do not currently contain an emergency test, the bill enables decision-makers to exercise each power if they are satisfied that it is necessary to respond to, or support the recovery from, the declared national emergency.
Third, where the tests for those emergency powers contain elements that overlap with the test for making a national emergency declaration, the bill creates an alternative simplified test where a national emergency has been declared that does not contain the overlapping elements.
1.17
The bill contained amendments to 32 Commonwealth Acts and regulations, including (among others) the:
Environment Protection and Biodoversity Conservation Act 1999;
Radiocommunications Act 1992.
Passage through the House and the Senate
1.18
The bill passed the House of Representatives and the Senate on 9 and 10 December 2020, respectively. The Acts commenced operation on 16 December 2020.
Overview of the Act
1.19
The Act contains four parts:
Part 1 provides a simplified outline and clarifies that the Act extends to Australia's external territories and offshore areas. This Part also provides a number of definitions, notably 'emergency management', 'national emergency law' and 'nationally significant harm'.
Part 2 empowers the Governor-General to make a NED on advice from the Prime Minister. It sets out the circumstances in which such NEDs can be made, including the requirements, conditions and parameters of those declarations. This includes the periods for which the declaration may be in force and the circumstances in which the Governor-General may extend, vary or revoke a NED. It provides that a NED (and any subsequent extensions, variations and/or revoke) is a legislative instrument that is not subject to disallowance, and sets out the requirement for committee review of each NED within one year of the anniversary of its declaration.
Part 3 empowers a minister to vary and revoke affected provisions of a law of the Commonwealth by legislative instrument while a NED is in operation. Clauses that authorise this modification are commonly known as a Henry VIII clause. Subsection 15(8) includes a variety of laws that are exempt from such modification.
Part 4 includes powers that the Prime Minister can exercise to require the provision of emergency management information and outlines reporting requirements on the exercise of powers under national emergency laws. Part 4 also includes the requirement for committee consideration of the operation of the Act following the commencement of the Act and after five years of its operation, as discussed at paragraph 1.13.
Consideration by other parliamentary committees
1.20
The bill was considered the Senate Standing Committee for the Scrutiny of Bills (the scrutiny of bills committee) which raised the following concerns:
broad discretionary power afforded to the Executive;
exemption of legislative instruments made under this Act from disallowance;
the powers in the Act for delegated legislation to modify primary legislation (a Henry VIII clause);
the omission of a specific timeframe for the minister to table a report into the National Emergency Declaration in parliament; and
the inclusion of significant matters in delegated legislation, including information under certain acts that must not be provided on the exercise of powers during a national emergency.
1.21
The scrutiny of bills committee also sought further information with respect to provisions of the consequential amendments bill, including the inclusion of significant matters in non-disallowable instruments, and privacy concerns relating to the collection, use and disclosure of personal information through non-disallowable instruments.
1.22
The committee sought further information from the minister on two occasions. In response to the committee's first request for information, the Attorney-General noted that:
The NED Bill does not define key terms, such as 'emergency' and 'Commonwealth interest' (clause 10), to ensure the framework supports an 'all hazards' approach. This is necessary and appropriate so as not to limit the circumstances in which a declaration can be made to certain types or kinds of defined emergencies… The term 'emergency' should be read in conjunction with the definition of 'nationally significant harm'. If an emergency has caused, is causing or is likely to cause harm that rises to the level of national significance, that emergency may be the subject of a national emergency declaration, regardless of the cause of the emergency.
1.23
The Attorney-General continued:
…the bill does not define 'Commonwealth interests', as this term is intended to reflect the full extent of the Commonwealth's constitutional interests and power. As such, it would not be appropriate to include a definitive list.
1.24
Noting this response, the scrutiny committee concluded that it 'remain[ed] concerned about the lack of guidance on the terms "emergency" and "Commonwealth interests"'. The scrutiny of bills committee also highlighted that it remained 'concerned' with regard to the previously listed issues.
1.25
The scrutiny of bills committee sought further advice in relation to the use of the Henry VIII clause through the operation of ministerial determinations under section 15 and the timeliness associated with the tabling of reports that relate to National Emergency Declarations.
1.26
The Acting Attorney-General, Senator the Hon. Michaelia Cash, provided further advice on 11 March 2021. In her response, the Acting Attorney-General stated:
In light of the Committee's comments, consideration will be given to whether it is appropriate to amend the NED Act to include further safeguards around the making of determinations under section 15, including through time limitations, while maintaining the policy objective of the provision to empower ministers to reduce 'red tape' requirements in legislation where this would benefit the public, or a section of the public, during or following a national emergency.
…
In light of the Committee's comments, consideration will be given to the appropriateness of amending the NED Act to provide for more specific requirements around the tabling and presentation of reports to ensure that there is appropriate Parliamentary accountability, particularly outside of sitting periods.
1.27
The scrutiny of bills committee provided a submission to this inquiry in which it reiterated its concerns and proposed the following amendments to the bill:
include inclusive definitions of 'emergency' and 'Commonwealth interest';
omit subclauses 11(6) and 12(5) so that national emergency declarations made under subclause 11(1) and extensions of a national emergency declaration under subclause 12(1) are subject to the usual parliamentary disallowance process;
provide that determinations made under clause 15 of the NED Act cease to be in force after three months;
require that before making a determination under clause 15 of the NED Act, a minister must be satisfied that Parliament is not sitting and is not likely to sit within two weeks after the day the determination is made;
provide that reports on the exercise of powers and the performance of functions in relation to a national emergency declaration must be given to the minister responsible for administering the NED Act as soon as practicable, and in any case not later than 14 days after the national emergency declaration ceases to be in force, and tabled in the Parliament not later than 14 days after the minister receives the reports (see clause 17 of the bill);
omit paragraph 17(6)(c) which leaves the specification of additional kinds of information that must not be included in a report to delegated legislation; and
provide that an emergency declaration made under proposed subsection 313(4D) of the Telecommunications Act 1997 is subject to parliamentary disallowance.
Note on references
1.28
In this report, references to the Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.