The Australian Greens (the Greens) wish to provide additional comments on the committee view and recommendation sections of the committee's report as they fail to sufficiently heed the evidence presented to the committee.
The Greens thank all of those who have provided evidence in the course of this inquiry. Their time, expertise and care are much valued.
The evidence obtained during the inquiry, through submissions as well as the public hearing, provides clear guidance on how the National Emergency Declaration Act 2020 (NED Act) can and should be altered to best achieve its objective while maintaining proper levels of public scrutiny and accountability. The Greens acknowledge that the Commonwealth government is currently consulting with the states and territories in relation to the operation of the Act. This process provides an opportunity to address the issues revealed during the committee's inquiry.
In particular, the Greens note the strong evidence presented on:
(1)
the need for clear definitions of the terms 'emergency' and 'Commonwealth interest'. Leaving the interpretation of the terms to the government carries a number of risks due to the government's effective ability to increase its powers quickly and in a broad scope. The term 'emergency' should be defined consistently with state and territory law to provide a clearer legal framework;
(2)
the need for appropriate parliamentary scrutiny to ensure the powers under the Act are appropriately used.
The Greens acknowledge and support report Recommendation 1:
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.
We wish, however, for national emergency declarations to be generally considered for disallowance, as per the evidence received during the inquiry.
Disallowance of an emergency declaration ensures parliamentary supremacy and effective oversight of what would otherwise be largely uncontrolled powers and provides senators with the ability to effectively represent the interests of their state's or territory's constituents;
(3)
the extent and implications of section 15 of the Act, the so‐called Henry VIII clause. The clause allows the modification of primary legislation by legislative instrument, which may lead to substantial changes to the original provisions. The Greens concern is echoed by the Scrutiny of Bills Committee and Scrutiny of Delegated Legislation Committee; and
(4)
the potential length of a national emergency declaration being in place and its implications on governmental powers. Although an individual emergency declaration is limited to three months under the Act, it can effectively remain in place indefinitely through the potential to extent it unlimited times.
The Greens acknowledge Recommendation 1 partly addresses this concern through subjecting emergency declaration extensions to disallowance but seek to further limit the extended powers provided to the government through a cap on the number of possible
Resultant from these noted concerns, the Greens put forward the following recommendations in addition to those provided in the committee's report.
Recommendation
The Greens recommend that, as part of the current consultation process between Commonwealth and states and territories in relations to the operation of the National Emergency Declaration Act 2020, the government adopts a clear definition of the terms 'emergency' and Commonwealth interest'.
Recommendation
The Greens recommend that national emergency declarations be subject to disallowance.
Recommendation
The Greens recommend that the number of extensions of a national emergency declaration be restricted.
Recommendation
The Greens recommend that the government reconsider section 15 of the Act, or modify it to require stronger preconditions for the exercise of the determinations and expand the list of legislation that cannot be modified.
Senator Lidia Thorpe
Senator for Victoria