2.1
All submissions to the inquiry expressed in-principle support for much of the National Emergency Declaration Act 2020 (the Act). However, a number of key issues were also discussed by inquiry participants. These included:
definitions and potential scope of key terms under the Act;
oversight and duration of declarations;
requirements for consultation with state and territory governments; and
disclosure of information.
Need for the National Emergency Declaration Act 2020
2.2
Submitters acknowledged the purpose of the Act to implement recommendation 5.1 of the Royal Commission into National Natural Disaster Arrangements (the Royal Commission) and recognised the potential benefit of having such a Commonwealth framework.
2.3
For example, the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) identified that one of the important lessons from the 2019-20 Black Summer bushfire season was that 'the bureaucracy in government grants and loans increased small business owners' distress and confusion at an already difficult time'. The ASBFEO submitted that the Act 'has the potential to improve the situation for small businesses'. Similarly, GIVIT referred to its experiences coordinating the distribution of donations during the bushfire season and highlighted the potential benefits of a national coordination mechanism for maximising efficiency and effectiveness in the process.
2.4
A number of Australian states generally acknowledged the value of implementing a Commonwealth framework for the declaration of national emergencies, particularly following the Royal Commission's recommendation. However, these submitters emphasised the primary role of states and territories in emergency management, and argued that the role of the Commonwealth—and a national emergency declaration—should be to support, and not hinder, the states and territories in the conduct of their responsibilities.
2.5
The Attorney-General's Department, the Department of Home Affairs and the Department of Prime Minister and Cabinet (the departments) emphasised the importance of the Act in providing a mechanism by which a clear message can be sent both nationally and internationally about the gravity of an unfolding event:
Two key points have already been highlighted. The first one is that national call to action, or that unity of effort. From a pragmatic perspective I see that as an important part of the legislation. There is no doubt in anybody's mind, whether it be across the Australian government, the private sector, the community or governments collectively, that hitting that threshold of 'nationally significant', means this is an event where we all have to focus on unity of effort. That cannot be underplayed.
2.6
The departments explained the need for the Act from an operational perspective:
What this enables Australian government departments to do is to repurpose and focus their capabilities on the events at hand. I think that's the important thing as well, because obviously governments are structured to deliver business in a particular way. This provides the platform for all departments and all ministers to really refocus and, where the need be, repurpose their capabilities.
2.7
The departments also highlighted the benefit of a national emergency declaration in terms of attracting international support:
In the sorts of circumstances that we would envisage a national emergency declaration being made, the national resource base is stretched often. I think it has more international impact in terms of garnering additional external resources if the nation makes an emergency declaration and not a state or territory within it.
Definitions of key terms
2.8
Part 1 of the Act provides definitions for the purpose of interpreting and implementing the provisions of the Act. Some submitters, however, highlighted that definitions of 'emergency' and 'Commonwealth interest' are not included the Act. Submitters also expressed concerns about the definition of 'nationally significant harm', with inquiry participants divided over the appropriate breadth of the definition.
2.9
The Law Council of Australia raised concerns that 'emergency' had not been defined and referred the committee to a High Court decision in Pape v Commissioner Taxation (2009) 238 CLR 1. The Law Council stated:
[Justices] Heydon, Hayne and Kiefel…observed that, for constitutional purposes, the concept of a national 'emergency' was imprecise. They noted that there were obvious dangers in leaving its interpretation wholly or substantially to the executive government (as this would enable a government to effectively recite itself into constitutional power). However, they also acknowledged that certain dangers may arise if it were left solely to the courts to give meaning to the term (including because the relevant evidence would likely be limited to opinions of the executive government).
2.10
Whilst the High Court decision was made in the context of 'constitutional interpretation', the Law Council believed that the sentiment extends beyond that scope and continues to demonstrate the 'inherent uncertainty in the meaning of the term "emergency", and the risks in leaving that term wholly undefined in any legal context'.
2.11
The Australian Human Rights Commission (AHRC) argued that the guidance given in the explanatory memorandum, which refers to the ordinary meaning of the term 'emergency' as defined in the Macquarie Dictionary, read with reference to 'nationally significant harm', still renders it 'difficult to place clear boundaries around' the parameters of when a national emergency declaration might be made. The AHRC stated that while a series of examples suggest what might fall within the definition of 'emergency' in the explanatory memorandum, this information:
is extrinsic to the Act itself. So primarily if a court or, for that matter, the Prime Minister were looking at the legislation they look at the legislation itself. So that guidance should be in the primary Act.
2.12
The AHRC emphasised that 'whether or not an emergency exists within the Act is a jurisdictional fact'. It noted that the powers available under the Act are 'extraordinary in nature, broad in scope and may be exercised expediently', and for this reason, 'the Act should provide a clear definition of these terms'.
2.13
The Law Council and the AHRC pointed to definitions in state and territory legislation as examples of where 'emergency' has been defined in legislation. The AHRC argued that 'the term "emergency" should be defined consistently with the corresponding state and territory law'. It suggested that this approach would provide a 'clearer legal framework and allow the federal, state and territory governments to work more cooperatively'.
2.14
This was supported by the Queensland Fire and Rescue Service. Deputy Commissioner Mike Wassing stated that, under the Disaster Management Act 2003 (Qld), the term 'emergency' refers to 'a tactical event of a lesser impact', whereas the word 'disaster' is used to describe an event that appears to more closely mirror an 'emergency' under the NED Act. He stated that definitions of key terms such as 'emergency' would assist in providing 'clarity about how the Act would…practically operate' and how it would affect the state of Queensland.
2.15
The NSW Government raised concerns about the absence of a definition of 'Commonwealth interests'. It submitted that the scope of the term was 'particularly broad', and may extend beyond property interests to other matters such as telecommunications or corporations. In addition, whilst submitters acknowledged that a statutory definition existed for the phrase 'nationally significant harm', concerns were raised as to its breadth. The NSW Government stated that 'interpretations could differ as to when the scale or consequence of a particular emergency might have a significant national impact'.
2.16
NSW Wildlife Information Rescue and Education (WIRES) submitted that legislation to address national disasters needs to improve outcomes for domestic flora and fauna. As such, WIRES called upon the definition of 'nationally significant harm' to be extended to include the 'significant loss of biodiversity or protected habitat':
To improve outcomes for wildlife and habitat, it is vital to ensure that procedures and protocols are in place across the rescue and rehabilitation sectors as well as established wildlife processes for other organisations and governing agencies working in emergency response.
2.17
In support of this position, WIRES stated that the Black Summer Bushfire Season in 2019-20 revealed that 'there were some areas of critical importance in terms of threatened species habitats and that there weren't the resources available to take steps to protect them'. Ms Leanne Taylor, Chief Executive Officer of WIRES, opined that having 'strategies and adequate resources in place to protect areas that are known threatened-species or endangered species habitats' would be 'ideal'.
2.18
The departments emphasised that the framework created by the Act 'centres on the definition of "nationally significant harm", which is harm that has a significant national impact because of its scale or consequences'. The departments stated that nationally significant emergencies 'are ones that…engage more than one jurisdiction or engage in one jurisdiction where that jurisdiction's resources are overwhelmed'. The departments noted that this term is not 'confined to geographical impact' of an event, but instead encapsulates the variety of ways an emergency event impacts the Australian community. The departments reiterated that this definition creates a 'high threshold' and ensures that a national emergency declaration is only made in 'exceptional circumstances'.
2.19
The departments also argued that 'the Act is contained'. They stated:
In here you have a complete list of the powers that can be activated by this legislation and you find them in the act. With one exception, these are all powers that this parliament has previously passed…It streamlines the activation of those powers.
2.20
The departments emphasised that the legislative framework takes an 'all hazard' approach, encompassing:
a broad range of natural and human-caused emergency events. The framework is not limited to incidents occurring in isolation, and encompasses situations where there are consecutive, concurrent and compounding events.
2.21
The departments submitted that this approach:
ensures that the framework can be adapted to a variety of emergencies…This flexibility is necessary and appropriate so as not to limit the circumstances in which a declaration can be made in relation to certain types of defined emergencies.
Oversight and duration of declarations
2.22
Submitters and witnesses broadly agreed that the flexibility required by the NED framework also called for appropriate oversight to ensure that the powers under the Act are properly used. However, submitters' views varied as to the adequacy of the oversight mechanisms currently included in the Act.
2.23
The St Vincent de Paul Society referred to 'the combination of undefined terms, the discretionary powers…the exemption from disallowance and…[the ministerial power to] modify the operation of primary legislation' as evidence that 'too much power rests in the hands of a few, with insufficient oversight'.
2.24
The AHRC acknowledged the difficulty in 'getting the balance right' between providing an effective response to a national emergency and 'not going any further than is absolutely necessary, reasonable and proportionate in limiting human rights'. The AHRC argued that 'effective, independent oversight and scrutiny of any decisions' creates a greater likelihood of that balance being struck. It considered that appropriate parliamentary oversight of these provisions requires the attention of a specialised committee, similar to the Senate Select Committee on COVID-19, to oversee the use of these powers.
2.25
These general proposals were accompanied by particular concerns about the exemptions from disallowance, the use of the Henry VIII clause and the ministerial determination power, and the timing of a declaration. Each of these issues are discussed in the following sections.
Exemption from disallowance
2.26
Some submitters recommended that the Act be amended to provide for disallowance of national emergency declarations as a safeguard against improper use of the Act's powers. The Senate Standing Committee for the Scrutiny of Delegated Legislation (scrutiny of delegated legislation committee) argued that 'primary legislation made for times of emergency should be subject to rigorous parliamentary scrutiny'. It stated that the preclusion of national emergency declarations from disallowance 'excludes these laws from effective oversight'. Similarly, the AHRC submitted that the Act 'confers largely uncontrolled power on the Executive during a period in which a national emergency declaration is in force'.
2.27
The AHRC noted that disallowance does not invalidate actions taken prior to a motion of disallowance being passed and questioned whether subjecting declarations to possible disallowance would be deleterious. It stated:
In the event of a challenge to a legislative instrument made under the Act, where an emergency had necessitated the declaration, the challenge would likely fail after consideration by Parliament. However, if a declaration were made in circumstances where there was in fact no national emergency, it would be important for this to be able to be scrutinised by Parliament given the far-reaching effects of a declaration.
2.28
The Law Council highlighted that a disallowance power 'gives propriety to the doctrine of Parliamentary supremacy in relation to the making of national emergency declarations'. It also stated that such a power 'would be compatible with the traditional role of the Senate as the "States' house"', and 'would give Senators for those States which are affected by the relevant emergency a meaningful opportunity to represent and advocate for the interests of their constituents in those states'.
2.29
The Law Council reflected that while the provisions that require a Senate committee to review declarations provide 'a valuable mechanism to facilitate the continuous improvement of legislation, and to learn lessons for past executive action taken', committee review 'serves an entirely separate purpose to the exertion of Parliamentary control over the exercise of delegated legislative power'.
2.30
The Attorney-General's Department stated that the federal government was concerned that 'in an emergency…there's a need to act quickly and with a great deal of certainty, and to provide real clarity that powers will then be exercised under that regime'. The department argued that potential disallowance of declarations would risk undermining the message conveyed by a national emergency declaration, which is a 'unique concern' of this Act. The Attorney-General's Department acknowledged that a disallowance motion would not retrospectively invalidate previous actions undertaken pursuant to the declaration, but argued that:
nonetheless, if the Prime Minister has reached the conclusion that such nationally significant harm is occurring that a declaration is appropriate, there is a question about whether it would be undermined with that kind of galvanising effect.
2.31
The departments also explained that the implementation of the Act is a two stage process, and that states and territories might decide to 'hook in or lock in' to the legislation. In that case, the departments highlighted that disallowance would have ramifications for 'anything that hangs off the declaration'. The departments added:
The core point here…is that this parliament has consistently recognised that these kinds of powers…[in] emergency situations are ones where you need clarity and you need certainty. This is just another example, from our perspective, of one of those powers which benefit from that clarity and certainty and people can rely on it and know that they'll be relying on it for the length of the time in which the determination is in place.
Henry VIII clause and ministerial determination power
2.32
Both the scrutiny of delegated legislation committee and the Senate Standing Committee on the Scrutiny of Bills were concerned about the Henry VIII clause in the NED Act. This clause allows a minister by determination to vary or waive another Commonwealth law for the duration of a national emergency declaration. The scrutiny of delegated legislation committee highlighted its long standing concern with the use of Henry VIII provisions, whereby legislative instruments may modify primary legislation, 'particularly where those modifications appear to substantially depart from the original provision'. The AHRC was similarly concerned and submitted that subsection 15(2) of the Act 'should be conditioned on circumstances preventing Parliament from sitting to consider such matters during a national emergency within a reasonable time after the date on which the declaration is made'.
2.33
The Law Council also queried the potential scope of the ministerial determination to vary or waive provisions of Commonwealth legislation under section 15 of the Act. It submitted that the Act should be modified to require stronger preconditions for the exercise of these determinations and asserted that the list of legislation that could not be modified should be expanded to include:
all acts conferring functions and powers on Commonwealth oversight and integrity bodies;
freedom of information and archives laws; and
reporting and notification obligations under legislation conferring intrusive or coercive powers on law enforcement and intelligence agencies.
2.34
In response, the Attorney-General's Department highlighted that 'it's a narrow set of provisions to which this power relates'; determinations would relate to:
the types of things that are most likely to be an encumbrance to somebody who needs support during or in the aftermath of an emergency, with things like verification of identity, where you've lost all your identity papers in a fir or a flood, and those types of things.
2.35
The department stated that such a determination must necessarily be linked to a national emergency declaration, in response to the circumstances relating to it. In addition, a ministerial determination pursuant to section 15 'has to be of benefit to the public or a section of the public…It can't be something that just makes it easier for government to do, remove safeguards or those types of things'.
2.36
The Attorney-General's Department emphasised that the list of excluded legislation is 'really there out of an abundance of caution'; whether other Acts are included 'is ultimately a matter for government, but we will consider those and we will provide advice'.
Length of a declaration
2.37
The AHRC noted that while the period of a national emergency declaration must not extend beyond three months, the effect of the extension provisions means that declarations may remain in place indefinitely, albeit with requirements to review the declaration every three months. The AHRC stated that while the requirement for each national emergency declaration to be reviewed by a Senate committee within one year of its making provides some oversight, the AHRC recommended that the number of extensions possible under the Act should be restricted, or a review should be required immediately after a declaration has been extended more than once.
2.38
Similarly, the Law Council recommended that the revocation power under section 14 of the Act should be strengthened to require the Prime Minister to 'periodically review and reassess whether the grounds for the issuance of a national emergency declaration remain in force, at prescribed intervals' of 14 days.
2.39
The departments argued that 'each national emergency declaration is intended to be time-limited'. They noted that the Act:
specifies that the period for which a declaration can be in force must not be longer than the period that the Prime Minister considers necessary for the purposes of emergency management, and in any case, must not be longer than 3 months.
2.40
The departments submitted that 'it is intended that a declaration be revoked by the Governor-General when the circumstances that gave rise to the declaration no longer exist'. While the departments noted that a declaration can be extended, 'rigorous tests apply' which require the Prime Minister 'to meet the same high thresholds when considering whether it is appropriate for a declaration to continue' or whether 'the nature of the emergency has changed such that it is necessary to update a declaration to reflect this'.
Consultation with states and territories
2.41
In their evidence to the inquiry, a number of state, territory and local government authorities expressed reservations about a declaration being made in the absence of consultation with the relevant state(s) and/or territory(ies).
2.42
Some submitters, for example the Tasmanian Government and the Local Government Association of Queensland, objected to any declaration made in the absence of a request from or consultation with states and territories. The ACT Government strongly supported the requirement to consult with states and territories due to the 'potential community confusion that could arise if a national emergency declaration is in conflict, or misaligned, with emergency declarations made by states and territories under their emergency management laws'. In addition to potential impacts on federal-state cooperation, the Law Council emphasised that a requirement to consult is 'important in terms of adherence to the constitutional division of responsibilities between the Commonwealth and the States'.
2.43
The ACT and Tasmanian governments supported a requirement on the Commonwealth to notify affected states and territories if a declaration is made without consultation. The Tasmanian Government identified rules or regulations which should accompany such a notification process, including:
(a)
detailed triggers for the declaration, to ensure the circumstances or events under which such a declaration would be made are limited and justified;
(b)
the information in the explanatory memorandum detailing circumstances where it is not practicable for states and territories to request that a declaration be made, including disruption of the telecommunications network, incapacitation as a result of an emergency, or due to the exigent nature of an emergency;
(c)
appropriate lead time for notifying affected states and territories of an impending national emergency declaration, so that state and territory government agencies can pre-position themselves to make the necessary arrangements, including a review of state laws and arrangements that may be impacted by the declaration as relevant to the particular emergency (for example, counter-terrorism arrangements if the emergency is terror-related);
(d)
the roles and responsibilities of the Commonwealth and state/ territory governments if such a declaration is made - including clarification in relation to which 'other' parties may be called upon by the Prime Minister to provide information to assist in preparing for, responding to or recovering from the emergency. This is particularly important given the likely limited resources available during an active emergency response operation.
2.44
The Law Council recommended that the consultation provisions in the Act be strengthened to reflect that:
the Prime Minister is only authorised to dispense with the requirement to consult with States and Territories…if satisfied, on reasonable grounds, that because of exceptional circumstances beyond the control of the Commonwealth, the time needed to conduct those consultations would frustrate the effectiveness of the declaration.
2.45
The Queensland Government raised concerns that the states and territories had not consulted prior to the Act being passed. The Queensland Government considered such consultation necessary 'to provide greater rigour and accountability about when the Commonwealth can make a national emergency declaration, in particular when a declaration can be made unilaterally'.
2.46
According to the departments, the default position for making a national emergency declaration will be 'either at the request of a state and territory, where a state and territory is affected, or in more limited circumstances where Commonwealth interests are particularly affected'. They stated that the federal government wanted 'to allow for the circumstances where an attempt has been made…but we cannot contact the right people to take to or circumstances where an event is moving incredibly quickly'. The departments acknowledged that while this power is a discretionary one, its use sits within 'a legislative framework, and you would expect the Prime Minister would follow that framework'.
2.47
The departments highlighted that the NED Act framework 'focuses solely on Commonwealth powers', and does not 'exclude or limit the operation of a law of a state or territory that is capable of operating concurrently with the national emergency declaration framework'. They stated:
The Act does not interfere with the states and territories' primary responsibility for responding to, and recovering from, most emergencies. If a national emergency declaration is made, it will not override or displace any emergency declaration that an affected state or territory has made under its corresponding legislation.
2.48
As such, the departments considered that consultation with states and territories was not necessary prior to the Act being passed, and highlighted that the second stage of the Act is currently in progress, which involves consultation between the Commonwealth and states and territories.
Disclosure of information
2.49
The Law Council raised concerns about the potential implications for oversight and integrity bodies and authorised officers under the Public Interest Disclosure Act 2013, with respect to the power of the Prime Minister to compel information under section 16 of the NED Act. The Law Council recommended that the Act should be amended to prohibit the disclosure of information by such bodies if that information 'was obtained in the performance of their oversight or PID Act-related functions'. The Law Council also asserted that 'there should be specific statutory protections for personal information compelled', noting that the Act 'purports to override the Privacy Act 1988'.
2.50
The Attorney-General's Department stated that section 16 'isn't a blanket provision':
It's for the purpose of preparing for responding to or recovering from an emergency to which the national emergency declaration relates. It's not a free-for-all that you can require any information. That does not fall within those purposes. Indeed, if you were to go to one of these agencies you've mentioned and say, 'We want all this information,' the relevant authority in that entity would be obliged to consider whether that was relevant to the purposes of the provision.
Committee view
2.51
The events of the past two years, including the 2019-20 Black Summer bushfire season and the COVID-19 pandemic, have forced Australians and Australian governments of all levels to grapple with sustained and compounding emergencies. These experiences have emphasised the importance of having resilient, flexible and reliable frameworks for emergency management to ensure that the Commonwealth government can provide the support that Australians expect of it when the most challenging of circumstances arise.
2.52
The committee recognises the primacy of state and territory governments in emergency management. However, the Commonwealth government is uniquely empowered to respond to—and capable of responding to—national emergencies, particularly in relation to nation-wide messaging and in the provision of certain resources and services before, during and after emergencies. The NED Act is targeted at the powers of the Commonwealth and does not displace the powers of its state and territory counterparts. The committee also highlights that the period of time for which a national emergency declaration made under section 11 of the Act is in force is limited to a maximum of three months.
2.53
In Pape v Commissioner for Taxation, Justices Gummow, Crennan and Bell emphasised that, in the federal context, there is a responsibility on the Executive Government to respond to national crises:
The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale here. This power has its roots in the executive power exercised in the United Kingdom up to the time of the adoption of the Constitution but in form today in Australia it is a power to act on behalf of the federal polity.
2.54
National emergencies are, in the words of Sir Robert Garran, so often 'unknown and unforeseeable' that there should be some definitional flexibility in describing an 'emergency' under the Act.
2.55
The committee acknowledges that the Commonwealth government is currently consulting with the states and territories in relation to the operation of the Act. As part of that process, the committee encourages the Commonwealth government to consider the views raised during the course of this inquiry, especially the need for clarity in the definition of key terms. A clear, shared understanding of terms such as 'emergency' and 'Commonwealth interest' will help to ensure that emergency management frameworks across the federation operate in unison during emergency events.
2.56
The committee acknowledges concerns about the exemption of a national emergency declaration from disallowance. The committee recognises that the NED Act is intended to deliver flexibility in responses to national emergencies and that flexibility, as the Act is currently drafted, comes at the expense of usual parliamentary oversight mechanisms.
2.57
While the committee considers that the Commonwealth government can be entrusted to issue reasonable and proportionate national emergency declarations, given the contentious and extended nature of some emergency declarations in some states during the COVID-19 pandemic, the committee considers that as an appropriate safeguard, it may be necessary to amend the NED Act so that any extension of a declaration beyond the three month period, under section 12, is subject to disallowance.
2.58
The committee recommends that the Commonwealth government considers amending the National Emergency Declaration Act 2020, through the removal of subsection 12(5), so that any extension of a declaration beyond the three month period is subject to disallowance.
2.59
In circumstances where national emergency declarations are not subject to disallowance, the statutory obligation placed on this committee to review national emergency declarations is central to the parliamentary oversight exercised under the NED Act framework. This committee takes that responsibility very seriously.
2.60
In reviewing a national emergency declaration, the committee intends to consider issues raised during the course of this inquiry, such as the:
nature of the emergency and the circumstances which led to the declaration being made;
temporal proportionality of the length of the declaration; and
scope and proportionality of any ministerial determinations made pursuant to it.
2.61
The committee also has the opportunity to consider again the overall operation of the Act in the legislated review to be commenced by the fifth anniversary of the commencement of the Act.
2.62
The committee recommends that the Senate takes note of this report.
Senator the Hon Sarah Henderson
Chair