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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL EMERGENCY DECLARATION BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE NATIONAL EMERGENCY DECLARATION BILL 2020
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the National Emergency Declaration Bill 2020
('the Bill') and the Explanatory Memorandum to the Bill is to include additional safeguards
to ensure that the declaration of a national emergency, and the powers and functions
exercised to respond to and recover from a national emergency, are effective, proportionate,
and subject to appropriate parliamentary or executive oversight.
2. In summary, these amendments will:
align the thresholds to vary a national emergency declaration under clause 13, with
the existing thresholds to extend a national emergency declaration in clause 12
expand the list of provisions of legislation that cannot be suspended, varied or
substituted during a national emergency under subclause 15 to include additional
legislation relating to the establishment and functions of oversight agencies and
Parliamentary statutory committees, and
require Parliamentary reviews into the operation of the National Emergency
Declaration Act 2020 to commence:
immediately following the commencement of the Act, for completion by
30 June 2021
within 12 months of each occasion on which the Governor-General declares a
national emergency, and
within 5 years of the commencement of the Act.
FINANCIAL IMPACT
3. The amendments to the Bill have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
National Emergency Declaration Bill 2020
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The amendments to the Bill will expand the safeguards contained in the Bill to ensure
that the declaration of a national emergency, and the powers and functions exercised to
respond to and recover from a national emergency, are effective, proportionate, and subject
to appropriate parliamentary or executive oversight.
3. The amendments will:
align the thresholds to vary a national emergency declaration under clause 13, with
the existing thresholds to extend a national emergency declaration in clause 12
(amendment 2)
expand the list of provisions that cannot be suspended, varied or substituted during a
national emergency to include additional legislation relating to oversight bodies and
parliamentary statutory committees (amendment 4), and
require Parliamentary reviews into the operation of the National Emergency
Declaration Act 2020 to commence:
immediately following the commencement of the Act, for completion by
30 June 2021
within 12 months of each occasion on which the Governor-General declares a
national emergency, and
within 5 years of the commencement of the Act (amendments 1, 3 and 5).
Human rights implications
4. The amendments do not engage any human rights.
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NOTES ON AMENDMENTS
Amendment 1: Clause 4, page 3 (line 20)
1. This amendment omits "within 5 years after the Act commences" in the simplified
outline in clause 4, and substitutes "immediately after the Act commences, and begin a
further review of the operation of the Act within 5 years after that. A Senate Committee must
also begin a review of each national emergency declaration by the first anniversary of the
day on which the declaration is made". This reflects the changes made by Amendments 3
and 5, which require Parliamentary reviews into the operation of the National Emergency
Declaration Act 2020 to commence:
immediately following the commencement of the Act, for completion by 30 June
2021
within 12 months of each occasion on which the Governor-General declares a national
emergency, and
within 5 years of the commencement of the Act.
Amendment 2: Clause 13, page 11 (lines 19 and 20)
2. This amendment omits all the words after "declaration" in subclause 13(1) and
substitutes a new test for the variation of a national emergency declaration under clause 13
(which provides for the variation of any aspect of a declaration other than extending the
period for which the declaration is in force).
3. Substituted subclause 13(1) provides that the Governor-General may, in writing, vary
any other aspect of a national emergency declaration that relates to an emergency if the
Prime Minster is satisfied that:
the emergency has recently occurred or is occurring (whether in or outside Australia)
(new paragraph 13(1)(a)), and
the emergency has caused, is causing, or is likely to cause nationally significant harm
in Australia or in an Australian offshore area (new paragraph 13(1)(b)), and
any of the following apply:
the governments of each State and Territory in which the emergency has
caused, is causing or is likely to cause nationally significant harm have
requested, in writing, the extension (new subparagraph 13(1)(c)(i)), or
because of the emergency, it is not practicable for a request to be made under
subparagraph 13(1)(c)(i) (new subparagraph 13(1)(c)(ii)), or
the emergency has affected, is affecting or is likely to affect Commonwealth
interests (new subparagraph 13(1)(c)(iii)), or
varying the declaration is appropriate, having regard to the nature of the
national emergency and the nature and severity of the nationally significant
harm ( new subparagraph 13(1)(c)(iv)), and
for reasons relating to emergency management, it is desirable to vary the declaration
for the purposes of one or more emergency laws.
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4. This test to vary a national emergency declaration largely replicates the test to extend
the period for which a declaration is in force in clause 12. This amendment provides an
important safeguard to ensure that variations can be made to reflect the changing nature or
circumstances of an evolving emergency, but that such variations can only be made where
the Prime Minister continues to be satisfied of the conditions that justified the making of the
initial declaration.
5. New subclause 13(1A) provides that, before the Governor-General varies a national
emergency declaration under subclause 13(1), the Prime Minister must consult with:
if a request to make the national emergency declaration was made under subparagraph
11(1)(c)(i) - the governments of each State and Territory that made the request, and
the governments of each State or Territory that were consulted under subclause 11(2),
and
the governments of each State and Territory (if any) in which the Prime Minister is
satisfied the emergency has caused, is causing or is likely to cause nationally
significant harm.
6. This amendment largely replicates the consultation requirements in the test to extend
the period for which a declaration is in force in clause 12. The amendment requires
consultation as a default position, including with additional States or Territories which have
been affected by the emergency after the initial declaration of national emergency has been
made.
7. New subclause 13(1B) provides that subclause 13(1A) does not require the
Prime Minister to consult with the government of a State or Territory if the Prime Minister is
satisfied that it is not practicable to do so. This amendment also largely replicates the
exception to the consultation requirement in the test to extend the period for which a
declaration is in force in clause 12, and is intended to capture situations where the
Prime Minister is satisfied that, for example:
a relevant State or Territory government is not readily contactable--such as where the
emergency has disrupted the telecommunications network
a relevant State or Territory government has been incapacitated by the emergency, or
due to the exigent nature of the emergency, it is not practicable to await a request.
Amendment 3: Page 12 (after line 3), at the end of Part 2
8. This amendment inserts a new clause 14A to provide for Parliamentary review of the
operation of the national emergency declaration framework within 12 months of each
occasion that the Governor-General declares a national emergency. New clause 14A
provides that the Senate Standing Committee on Legal and Constitutional Affairs, or such
other committee constituted under a resolution of the Senate, must:
begin a review of each national emergency declaration made under section 11 by the
first anniversary of the day the declaration is made, and
report its findings to the Senate as soon as practicable after completing the review.
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9. The purpose of this amendment is to ensure that the effectiveness of the framework is
assessed in relation to each national emergency declaration, and the unique circumstances
that gave rise to it, to allow the framework to be refined based on experience.
Amendment 4: Clause 15, page 15 (after line 12), after paragraph (8)(g)
10. This amendment inserts new paragraphs 15(8)(ga) to (gj) to expand the list of
provisions which, cannot be suspended, substituted, or varied under clause 15, despite a
national emergency declaration being in force. These provisions relate to the establishment
and functions of oversight bodies and Parliamentary statutory committees.
11. In respect of oversight bodies, this amendment would apply to the entire Acts of the
following bodies:
Inspector-General of Intelligence and Security (the Inspector-General of Intelligence
and Security Act 1986)
the Commonwealth Ombudsman (the Ombudsman Act 1976)
the Australian Commission for Law Enforcement Integrity (the Law Enforcement
Integrity Commissioner Act 2006), and
the Australian National Audit Office (the Auditor-General Act 1997).
12. In respect of Parliamentary statutory committees, this amendment would apply to:
the Parliamentary Joint Committee on Corporations and Financial Services (Part 14 of
the Australian Securities and Investments Commission Act 2001)
the Parliamentary Joint Committee on Human Rights (the Human Rights
(Parliamentary Scrutiny) Act 2011)
the Parliamentary Joint Committee on Law Enforcement (the Parliamentary Joint
Committee on Law Enforcement Act 2010)
the Parliamentary Joint Committee on the Broadcasting of Parliamentary Proceedings
(the Parliamentary Proceedings Broadcasting Act 1946)
the Parliamentary Joint Committee of Public Accounts and Audit (the Public
Accounts and Audit Committee Act 1951), and
the Parliamentary Standing Committee on Public Works (the Public Works Committee
Act 1969).
Amendment 5: Clause 18, page 18 (lines 5 to 8)
13. This amendment omits paragraphs 18(a) and (b) and substitutes new paragraphs 18(a)
and (b) to introduce an additional requirement for Parliamentary review of the operation of
the National Emergency Declaration Act 2020 immediately following the commencement of
the Act, and to maintain the current requirement, in existing clause 18, for review after five
years.
14. Amended clause 18 provides that the Senate Standing Committee on Legal and
Constitutional Affairs, or such other committee constituted under a resolution of the Senate,
must:
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begin a review of the operation of the Act immediately after the Act commences and
report the Committee's findings to the Senate by 30 June 2021 (substituted paragraph
18(a)), and
begin a review of the operation of the Act by the fifth anniversary of the day the Act
commences and report the Committee's findings to the Senate as soon as practicable
after completing the review (substituted paragraph 18(b)).
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