Introduction
Labor senators note that the National Emergency Declaration Act 2020 (the Act) was passed through the Parliament with great haste on the eve of the 2020-21 bushfire season, after negotiations and amendments between the government and opposition.
The passage of this bill did not, however, mean that the parliament's role in scrutinising and debating the legislation had come to an end.
During the second reading of the bill in the House of Representatives, the Shadow Attorney-General, the Hon Mark Dreyfus QC, MP stated:
Labor is, of course, always concerned when legislation is rushed through parliament without the usual process of scrutiny and debate, which are cornerstones for a healthy parliamentary democracy. Problems can be overlooked and mistakes can be made. For that reason, 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. I thank the Attorney-General for agreeing to that amendment as well as agreeing to a number of the other sensible amendments proposed by Labor.
Labor senators also acknowledge that the Attorney-General's Department is working through a process to review and make improvements to the Act now that the threat of the 2020-21 bushfire season has passed:
The department is considering the advice and recommendations made by the Senate Scrutiny of Bills and Scrutiny of Delegated Legislation Committees, as well as the views expressed in submissions to this Inquiry, as part of the next phase of work to identify opportunities to improve and enhance the Act.
In light of the evidence that has been provided to this inquiry, Labor senators are of the view that the government should consider a number of amendments to the Act.
Broad discretionary powers, disallowance and Henry VIII clauses
Labor senators share the concerns of (among others) the Senate Standing Committee for the Scrutiny of Bills (Senate Scrutiny of Bills Committee), the Senate Standing Committee for Scrutiny of Delegated Legislation Committee (Senate Delegated Legislation Committee), the Australian Human Rights Commission (AHRC) and the Law Council of Australia (Law Council) about the broad scope of some of the powers introduced by the Act, the fact that a number of the instruments that can be made under the Act are not subject to disallowance and, relatedly, the extent to which the Act allows delegated legislation to modify primary legislation (Henry VIII clause – the power for delegated legislation to modify primary legislation).
It is also worth noting that these are concerns held—to varying degrees—by all members of the committee, as can be seen by Recommendation 1 in the committee's report.
As it currently stands, the Act confers on the executive broad and significant powers. Labor senators are of the view that it is possible to have appropriate checks and balances while still allowing the Commonwealth to respond to a national emergency quickly and robustly.
As Senator Scarr put to witnesses in the committee hearing, the scrutiny of delegated legislation is a detailed discussion between the Parliament and the executive and will only conclude in a successful disallowance within 15 sitting days of notice being given and if a majority of senators think that disallowance is appropriate:
Concerns are raised by the Scrutiny of Delegated Legislation Committee and those concerns are communicated to the executive. Quite frequently there is a to-ing and fro-ing between the executive and the scrutiny committee with respect to a proposed disallowance or a disallowance motion that is on the paper. But there is interaction and engagement between the scrutiny committee and the executive prior to any disallowance formally being put. Mr Santow, wouldn't that process itself provide a measure of comfort to the executive that, before parliament used the disallowance power—if it chose to—there is going to be notice, discussion, consideration, and public discussion?
Later in the hearing with the Attorney-General's Department, Senator Scarr explained:
Let's then turn to the clarity and certainty point. From my perspective—I serve as a member on the Scrutiny of Delegated Legislation Committee—I want to get your engagement with the process. Let's look at it through the prism of clarity and certainty. But the process is that the Scrutiny of Delegated Legislation Committee, which typically works in an apolitical fashion, applies the scrutiny principles to an instrument which is subject to disallowance and it then writes to the relevant minister, to the executive, and raises scrutiny concerns with the executive. In order to safeguard the position of the Senate a committee member might put a motion of disallowance on the notice paper simply to safeguard the position. There then follows engagement between the executive and the Scrutiny of Delegated Legislation Committee which is made public through the Scrutiny Digest; so everyone can see it. How does that provide an opportunity, if the minister or the executive is concerned about clarity and certainty, that those points can be raised with the Scrutiny of Delegation Legislation Committee when the Scrutiny of Delegated Legislation Committee raises its concerns with the minister? Doesn't that process provide an opportunity for the minister to raise those legitimate concerns with respect to clarity and certainty with the Scrutiny of Delegated Legislation Committee?
We agree with views put by the Law Council, the Senate Scrutiny of Bills Committee and the Senate Delegated Legislation Committee that, when it comes to the declaration of a nationally significant emergency and the nature and extent of the Commonwealth's response to that emergency, the executive must be accountable and answer to the Parliament.
The Parliament must never abrogate its responsibility – or allow its own powers to be unduly limited – when it comes to the scrutiny of the executive in the time of emergency.
In their joint submission, the Attorney-General's Department, the Department of Home Affairs and the Department of Prime Minister and Cabinet (the departments) told the committee that:
The exemption from disallowance reflects the critical nature of the declaration, its objective in providing clarity about the severity of an emergency event, and ensures that urgent and decisive action can be taken with certainty in response to a nationally significant event.
However, when this point was interrogated at the public hearing it was broadly noted that in practice Parliament takes very seriously its obligations to scrutinise legislative instruments and that it does not move to disallow legislative instruments lightly.
This also highlights the departments' lack of understanding as to why parliamentary scrutiny is essential, especially when it comes to the scrutiny of delegated legislation.
Labor senators do not agree with the Attorney-General's Department that there is a material risk of the Senate moving to disallow a critical legislative instrument at an inappropriate time, especially if it were at the height of a national emergency. Disallowance motions are required to follow a process and must be resolved or withdrawn within 15 sitting days of being placed on the notice paper.
The presence within the Act of a 'Henry VIII' clause is also a matter that should be reviewed. Labor senators ask that the Attorney-General's Department review Recommendation 3 of the AHRC, which states:
Section 15 of the Act should be amended to include a condition that, before a Minister is able to make a determination under s15, the Minister must be satisfied that, by reason of the emergency, Parliament is unable to sit within a reasonable time of the commencement of the national emergency declaration. It should also be amended to make clear that any exercise of this power by a Minister must be proportionate to the demonstrated need resulting from the emergency.
This amendment to the act would enhance parliamentary oversight and accountability of the executive.
Parliamentary oversight
As the COVID-19 pandemic has shown, times of emergency and crisis call for greater parliamentary oversight, not less. In addition to the periodic oversight of the Act by this committee, Labor senators are of the view that a special parliamentary committee should be established upon any declaration of a national emergency. This is a recommendation shared by the AHRC, which put to the committee that:
The Act should provide for the establishment of a specialised committee upon the declaration of a national emergency by the Governor-General, focused on the exercise of the national emergency laws under the Act.
As the Senate Select Committee on COVID-19 has shown, it is possible for such a committee to be established quickly and without impediment, to provide parliamentary oversight where it might be otherwise difficult to do so.
Definitions needed
The lack of key and consistent definitions within the act remains a serious concern which needs to be addressed through the process that the Attorney-General's Department is currently undertaking.
During the committee hearing it became apparent that there is still a lot of work to be done between the Commonwealth, the states and territories in providing clearer guidance:
It is considered that the consultative process is the appropriate forum to develop a clear, common understanding between all jurisdictions on the intended practical operation of the Act, to develop arrangements about how the Commonwealth Government can provide support to states and territories in dealing with emergencies and to identify potential legislative improvements. As noted above, any amendments to the NED Act, including appropriate definitions for key terms, require consideration of existing frameworks and legislation to ensure there are no unintended limitations for the Commonwealth, states or territory governments.
The Queensland Fire and Emergency Services Deputy Commissioner pointed out that the different jurisdictions have different definitions for commonly used words. For example, the Commonwealth may consider a situation an 'emergency' whereas the Queensland Government would use the term 'disaster.
Evidence at the hearing highlighted some of the potential unintended consequences that could occur if definitions such as 'emergency', 'Commonwealth interest' and 'nationally significant harm' are not clarified. The broad sub-clauses of 'nationally significant harm' include:
(i)
harm to the life or health (including mental health) of an individual or group of individuals;
(ii)
harm to the life of health of animals or plants;
(iii)
damage to property, including infrastructure;
(iv)
harm to the environment;
(v)
disruption to an essential service.
It is unclear how the legislation with such broad and undefined terms would be applied in practice, and it is obvious that legal uncertainty regarding the proper interpretation of the Act would be highly undesirable during an unfolding crisis.
Similarly, when the AHRC was asked if this legislation could be used to declare a national emergency because of an industrial dispute, Mr Santow responded:
It is clear to the commission that that would be in the ordinary course of events inappropriate and I don't think that that would be consistent with Parliament's intent. Nevertheless, the legislation, we would say, needs to be made clear that that is ruled out.
It is clear that further work needs to be undertaken so that legislation gives the clearest possible guidance when it is implemented in an emergency situation.
Consultation
Effective coordination between all levels of government is crucial during an emergency, and that the committee heard that this is not done best by wielding power but mainly by building trust and confidence within local communities.
Therefore, there need to be clear consultation provisions established between the different jurisdictions and the Commonwealth, particularly in the context of aid to the civil power.
Deputy Commissioner Worboys told the committee this would help the Commonwealth understand unique circumstances in each state and territory before taking action and not be pre-emptive:
In my view, it would be sensible that, before any declaration occurred, first responders, I would hope, and certainly in this state, would have the best picture of where the emergency or crisis was at and where it might develop to, so I would support that.
The Deputy Commissioner said this was needed to avoid the cumbersome and slow interaction with civil communities that had hampered operations in the past:
Mr Worboys: My experience around requesting assistance from the Defence Force and the civil community is that it has always been a little cumbersome, a little too slow, for my liking. But, to give some heart to it, it seems that, whenever a direct relationship occurs between whoever is appointed at Defence Force level and me, as the SEOCON, as soon as we link arms, with the actual complexities of requesting, what might be sought and not sought, and a whole range of things, the actual assistance that's provided is exceptional.
Senator KIM CARR: Thank you for that, and I'd expect nothing less. The question, though, also goes to the issue of whether or not the civil power should always be consulted prior to the deployment of the ADF.
Mr Worboys: Yes, I would agree with that.
For these reasons Labor senators recommend that consultation provisions be brought forward and, as Deputy Commissioner Worboys put it, 'etched in stone'.
As part of its review of the Act, Labor senators recommend that the Attorney-General's Department specifically consider the following changes:
Recommendation
Adopt the Senate Standing Committee for the Scrutiny of Bills' recommendation to omit subsections 11(6) and 12(5) so that national emergency declarations made under subsection 11(1) and extensions of a national emergency declaration under subsection 12(1) are subject to the usual parliamentary disallowance process.
Recommendation
More generally, that the normal disallowance provisions apply to instruments made under the National Emergency Declaration Act 2020, namely, that within 15 sitting days after tabling a senator may give notice of a motion to disallow the instrument.
Recommendation
Recommendation 3 of the Australian Human Rights Commission's submission to this inquiry be implemented in full so that, among other things, a determination made under section 15 of the National Emergency Declaration Act 2020 (the Henry VIII clause) is subject to greater parliamentary oversight.
Recommendation
The National Emergency Declaration Act 2020 should be amended to require that a special parliamentary committee be established upon any declaration of a national emergency.
Recommendation
After consultation with the states and territories, the Commonwealth government should amend the National Emergency Declaration Act 2020 to clarify the meaning of key terms, including clearer definitions of 'emergency' and 'Commonwealth interest'.
Recommendation
That consultation be undertaken with the states and territories to ensure that there is a coordinated framework for all jurisdictions to operate effectively under the National Emergency Declaration Act 2020.
Senator the Hon Kim Carr
Deputy Chair
Labor Senator for Victoria
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Senator Raff Ciccone
Labor Senator for Victoria
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