NATIONAL EMERGENCY DECLARATION BILL 2020 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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NATIONAL EMERGENCY DECLARATION BILL 2020

2019-2020 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE NATIONAL EMERGENCY DECLARATION BILL 2020 REVISED EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, the Honourable Christian Porter MP) THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED AND SUPERSEDES THE EXPLANATORY MEMORANDUM TABLED IN THE HOUSE OF REPRESENTATIVES

NATIONAL EMERGENCY DECLARATION BILL 2020 GENERAL OUTLINE 1. The National Emergency Declaration Bill 2020 (the Bill) will implement Recommendation 5.1 of the Royal Commission into National Natural Disaster Arrangements (RCNNDA) by establishing a legislative framework for the declaration of a national emergency by the Governor-General, on the advice of the Prime Minister. 2. The Commonwealth possesses a wide range of powers that can be used to respond to, and to support the relief and recovery from, emergencies. These powers are located across the statute book. The Bill will introduce a consolidated list of these powers, to provide greater visibility to decision-makers of the full range of powers available in a national emergency. This aspect of the Bill will operate in conjunction with the National Emergency Declaration (Consequential Amendments) Bill 2020, which will introduce alternative, streamlined tests for the exercise of these powers while a national emergency declaration is in force. 3. Where a national emergency has been declared, the Bill will also:  empower ministers to suspend, vary or substitute 'red tape' requirements in legislation that they administer where this would benefit the public, or a section of the public, during or following a national emergency, and  enable the Prime Minister to require accountable authorities of Commonwealth entities to provide information, such as information about Commonwealth stockpiles, assets and resources, and options and recommendations to respond to the emergency, to assist the government to prepare for, respond to or support the recovery from the national emergency. FINANCIAL IMPACT 4. The amendments in the Bill have no financial impact. 2

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 National Emergency Declaration Bill 2020 1. This Bill is 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 Bill will implement Recommendation 5.1 of the RCNNDA by establishing a legislative framework for the declaration of a national emergency. The RCNNDA summarised the rationale for its recommendation in the following terms: 5.1 Australia's disaster outlook is alarming. States and territories alone may not be able to respond effectively to, or provide immediate relief or recovery from, extreme to catastrophic disasters. 5.2 State and territory governments are primarily responsible for responding to and recovering from natural disasters. The role of the Australian Government is largely to support states' and territories' responsibilities. However, the Australian Government has unique capabilities, and is able to take a broader view of the national consequences of extreme to catastrophic disasters. 5.3 To better assist states and territories in responding to and recovering from such disasters, the Australian Government should create a legislative mechanism for the making of a declaration of a state of national emergency. 5.4 A declaration would signal to communities the severity of a disaster early, act as a marshalling call for the early provision of Australian Government assistance when requested, facilitate coordination with state and territory emergency management frameworks, and, in very limited circumstances, allow the Australian Government to act without a request from a state or territory. 3. The purpose of the Bill is to:  provide a legislated framework for the Commonwealth to declare a national emergency, in circumstances where an emergency has occurred, is occurring or is likely to occur, and it has caused, is causing or is likely to cause nationally significant harm, and  create a clearer framework for the exercise of Commonwealth national emergency powers to better position the Commonwealth to lead a cohesive and effective coordination strategy. 4. The Bill will enable the Governor-General to declare a national emergency on the advice of the Prime Minister. The Bill will establish two pathways for the Prime Minister to request a national emergency declaration:  a power for the Prime Minister to request the declaration at the request of the relevant jurisdiction or jurisdictions, and  a power for the Prime Minister to unilaterally request the declaration where he or she is satisfied that: 3

o because of the emergency, it is not practicable to make a declaration at the request of the relevant jurisdiction or jurisdictions o the emergency has affected, is affecting or is likely to affect Commonwealth interests, or o the Prime Minister is satisfied that it is appropriate in all of the circumstances to make the declaration without a prior request from the relevant jurisdiction or jurisdictions. 5. The Bill will take an 'all hazards' approach, and will capture emergencies occurring on land or sea (including in Australia's offshore area) or in Australian airspace, and emergencies that are limited to one jurisdiction or that span multiple jurisdictions. 6. There is currently no unified framework for the exercise of Commonwealth powers during major emergencies. The Commonwealth has a range of existing emergency powers, but these powers are located across the statute book and subject to differing statutory tests. These factors may contribute to delay in responding to more complex and wide-ranging emergencies that require the exercise of multiple Commonwealth powers. The 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. 7. The Bill will also create two new emergency powers that will be available where the Governor-General has declared a national emergency. The Bill will introduce a power for ministers to suspend, vary or substitute 'red tape' requirements in laws that they administer, where doing so would be of benefit to the public, or a section of the public, during a national emergency. This power would enable Ministers to suspend, vary or substitute procedural requirements that may be a barrier to people in emergency-affected areas accessing payments, benefits or services--such as requirements to produce particular kinds of identification, or have their signature witnessed. 8. The Bill will also introduce a power for the Prime Minister to require Commonwealth entities to report on available stockpiles, resources and assets, and options and recommendations to respond to a national emergency. This power will assist to enable the government to rapidly obtain a clear and comprehensive picture of what stockpiles, assets and resources the Commonwealth has at its disposal, whether stockpiles need supplementing, and what could be made available to assist in the response to or recovery from the national emergency. This power will also ensure that the need for departments to be able to report on these matters immediately following the declaration of a national emergency is integrated into all national emergency planning and exercise processes. Human rights implications 9. This Bill engages the following rights:  the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)  the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 4

 the right to an adequate standard of living in Article 11 of the ICESCR. The right to life in Article 6 of the ICCPR 10. Article 6 of the ICCPR places a positive obligation on governments to take appropriate measures to protect the right to life of those within its jurisdiction. 11. A key objective of the Bill is to promote the right to life. The Bill promotes the right to life by seeking to prevent and mitigate harm caused by national emergencies. The Bill establishes a framework to strengthen and expedite the Commonwealth Government's ability to respond to and recover from emergencies that have caused, are causing, or are likely to cause, nationally significant harm. Nationally significant harm includes, among other things, harm that has a nationally significant impact because of its scale or consequences, to the life of an individual or group of individuals. 12. In its final report, the RCNNDA noted that a national emergency declaration would put the Australian Government on the front foot before a disaster occurs, or before an existing disaster becomes more severe. A framework that streamlines and expedites the immediate response to and recovery from an emergency causing, or likely to cause, nationally significant harm promotes the preservation of life by:  assisting to prevent or mitigate a greater proportion of the harm caused by the emergency, and  enabling relief to be provided to individuals and communities affected by the emergency more promptly. The right to health in Article 12 of the ICESCR 13. Article 12 of the ICESCR provides that all people have the right to the highest attainable standard of physical and mental health. It provides that basic steps to be taken by governments to achieve the full realisation of the right to health shall include, among other things, those necessary for:  the improvement of all aspects of environmental and industrial hygiene  and the prevention, treatment and control of epidemic diseases, endemic, occupational and other diseases, and  the creation of conditions which would assure to all medical service and medical attention in the event of sickness. 14. A key objective of the Bill is to promote the right to health. The Bill promotes the right to health by seeking to prevent and mitigate harm caused by national emergencies. The Bill establishes a framework to strengthen and expedite the Commonwealth Government's ability to respond to and recover from emergencies that have caused, are causing, or are likely to cause, nationally significant harm. Nationally significant harm is harm that has a nationally significant impact because of its scale or consequences and that is any of the following:  harm to the health, including mental health, of an individual or group of individuals 5

 harm to the health of animals or plants  damage to property, including infrastructure  harm to the environment, and  disruption to an essential service. 15. These types of harm are likely to impact on the Australian community's right to health. For example, nationally significant harm caused to plants or animals, such as by the introduction of a pathogen to Australia, could impact on Australia's food production systems and food security. Damage to property could impact access to basic shelter and housing. Damage to infrastructure or an essential service could impact access to medical services and sanitation. 16. A framework that streamlines and expedites the immediate response to and recovery from an emergency causing, or likely to cause, nationally significant harm promotes the right to health by:  assisting to prevent or mitigate a greater proportion of the harm caused by the emergency  enabling relief to be provided to individuals and communities affected by the emergency more promptly, and  supporting efforts to more rapidly and effectively recover from the harm caused by the emergency. 17. Expediting the Commonwealth's emergency response and recovery efforts is also likely to reduce the likelihood and severity of second-order consequences flowing from an emergency that may be detrimental to physical and mental health, such as individuals being displaced from disaster-affected areas, or experiencing an extended loss of income. 18. The Bill promotes the right to health by enabling ministers to suspend, vary or substitute procedural requirements that may be a barrier to people in disaster-affected areas accessing benefits or services. This power will assist to ensure that people who may have lost personal documentation, or may not have access to an authorised witness, are able to access those benefits or services in a timely fashion. A comparable power was included in the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 and was used to temporarily dis-apply the requirement under section 19 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 that applications by survivors of institutional child sexual abuse for redress be accompanied by a signed and witnesses statutory declaration. During the COVID-19 pandemic, government public health directives and social distancing restrictions may have prevented survivors from being able to comply with this requirement and, therefore, to submit a valid application. The right to an adequate standard of living in Article 11 of the ICESCR 19. Article 11(1) of the ICESCR protects the right to an adequate standard of living, including food, water and housing. Governments have an obligation to ensure the availability and accessibility of the resources necessary for the realisation of this right. 6

20. A key objective of the Bill is to promote the right to an adequate standard of living. The Bill promotes this right by seeking to prevent and mitigate harm caused by national emergencies. The Bill establishes a framework to strengthen and expedite the Commonwealth Government's ability to respond to and recover from emergencies that have caused, are causing, or are likely to cause, nationally significant harm. Nationally significant harm is harm that has a nationally significant impact because of its scale or consequences and that is any of the following:  harm to the health, including mental health, of an individual or group of individuals  harm to the health of animals or plants  damage to property, including infrastructure  harm to the environment, and  disruption to an essential service. 21. These types of harm are likely to impact on the right to an adequate standard of living. For example, harm caused to plants, animals and the environment, such as by the introduction of a pathogen to Australia, could impact on Australia's food production systems, food security and water supply. Damage to property could impact access to, and supply of, housing. Damage to infrastructure or an essential service could impact access to medical services, sanitation and basic goods. 22. A framework that streamlines and expedites the immediate response to and recovery from an emergency causing, or likely to cause, nationally significant harm promotes the right to an adequate standard of living by:  assisting to prevent or mitigate a greater proportion of the harm caused by the emergency  enabling relief to be provided to individuals and communities affected by the emergency more promptly, and  supporting efforts to recover from the harm caused by the emergency. 23. The Bill also promotes the right to an adequate standard of living by enabling Ministers to suspend, vary or substitute procedural requirements that may be a barrier to people in disaster-affected areas accessing payments, benefits or services. This ensures that people who may have lost personal documentation or may not have access to an authorised witness are able to access those payments, benefits or services in a timely fashion. Conclusion The Bill is compatible with human rights. It promotes the right to life, health and an adequate standard of living by enabling the Commonwealth to better respond to and recover from emergencies that impact individuals and communities. 7

NOTES ON CLAUSES Part 1--Introduction Division 1--Preliminary Clause 1 - Short title 1. This clause provides for the short title of the Act to be the National Emergency Declaration Act 2020. Clause 2 - Commencement 2. This clause provides for the commencement of each provision in the Bill, as set out in the table at subclause 2(1). Item 1 of the table provides that the whole of the Act will commence the day after the Bill receives the Royal Assent. A note follows the table clarifying that the table relates only to the provisions of the Act as originally enacted. It will not be amended to deal with any later amendments of the Act. 3. Subclause 2(2) specifies that any information in column three of the table is not part of the Act, and information may be inserted into this column, or information in it may be edited, in any published version of the Act. Clause 3 - Object of this Act 4. This clause sets out the object of the Act which is to recognise and enhance the role of the Commonwealth in preparing for, responding to and recovering from emergencies that cause, or are likely to cause, nationally significant harm. This object is achieved by providing for the making of national emergency declarations, which will allow the Commonwealth to mobilise resources to prepare for, respond to, and recover from such emergencies. Clause 4 - Simplified outline of this Act 5. This clause provides a simplified outline of the Act. It provides that the Governor-General may make a declaration, called a national emergency declaration, in certain circumstances, including if the Prime Minister is satisfied that an emergency (whether occurring in or outside Australia) is causing harm that is nationally significant in Australia or in an Australian offshore area. If a national emergency declaration is in force, a Minister may determine that certain provisions of Commonwealth laws are modified in specified ways if certain conditions are satisfied. Provisions that may be modified include those requiring a person to provide a signature or to report matters to a Commonwealth agency. If a national emergency declaration is in force, the Prime Minister may require the accountable authorities of Commonwealth entities, including Secretaries of Commonwealth Departments, to provide information to assist in preparing for, responding to or recovering from the emergency. A national emergency declaration also has effect for the purposes of other Commonwealth laws (called national emergency laws). Such laws provide that, if a national emergency declaration is in force certain powers can be exercised or functions can be performed. If those powers are exercised or functions are performed, the Minister responsible for administering the relevant national emergency law must prepare a report about that and give it to the Minister administering this Act for tabling in Parliament. A Senate Committee must begin a review of 8

the operation of this Act immediately after the Act commences and begin a further review of the operation of the Act within 5 years after the Act commences. 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. 6. Simplified outlines are included to assist readers to understand the substantive provisions of the Act. However, simplified outlines are not intended to be comprehensive, and it is intended that readers should rely on the substantive provisions. Clause 5 - Act binds the Crown 7. Clause 5 provides that the Act binds the Crown in each of its capacities. Clause 6 - Extension to external Territories 8. Clause 6 clarifies that this Act extends to the external Territories, as the Act enables national emergency declarations to be made in respect of the external Territories. Clause 7 - Extension to Australian offshore areas 9. Clause 7 clarifies that this Act extends to Australian offshore areas, as the Act enables national emergency declarations to be made in respect of Australia's offshore areas. Clause 8 - Executive power of the Commonwealth 10. Clause 8 provides that this Act does not, by implication, limit the executive power of the Commonwealth. For example, clause 16 provides for a power for the Prime Minister to require the accountable authorities for Commonwealth entities to provide specified information for the purposes of preparing for, responding to or recovering from an emergency to which a national emergency declaration relates. The inclusion of this power does not, by implication, limit the executive power of the Commonwealth including, for example, the power for the Prime Minister to require the accountable authorities for Commonwealth entities to provide specified information for the same or other purposes. Clause 9 - Concurrent operation of State and Territory laws 11. This clause provides that this Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. For example, the declaration of a national emergency under the Act does not exclude or limit the operation of a law of a State or Territory that relates to the declaration of a state of emergency or disaster within that jurisdiction that is capable of operating concurrently with the Act. Clause 10 - Definitions 12. Clause 10 provides a number of definitions. 13. The definition of Australia clarifies that Australia, when used in a geographical sense, includes the external Territories. 14. The definition of Australian offshore area means: 9

a. any waters on the landward side of the territorial sea of Australia that are not within the limits of a State b. the territorial sea of Australia c. the exclusive economic zone of Australia d. the sea above the continental shelf of Australia, and e. includes the airspace over an area covered by paragraphs (a), (b), (c) or (d). 15. The definition of emergency management means emergency risk reduction, preparedness, response or recovery, engaged in before, during or in the immediate aftermath of an emergency. 16. This definition is used as part of the tests for the Prime Minister to request the declaration of a national emergency in clause 11, and to request the variation of a declaration to extend its duration in clause 12. The concepts in the definition should be interpreted broadly to include any activity that can be taken to prevent, mitigate, protect from, respond to, or remediate the harms caused by an emergency, including indirect harms, before, during or in the immediate aftermath of an emergency. 17. The definition of emergency management is not intended to extend beyond the immediate aftermath of an emergency. The declaration of a national emergency is intended to be time-limited, and ordinary processes should be restored once the immediate response and recovery need is addressed. The concept of the 'immediate aftermath' of an emergency should not be read as being limited to a fixed period of hours, days or weeks following an emergency. Instead, what constitutes the 'immediate aftermath' to an emergency will differ depending on the nature, scale and severity of an emergency, and the progress of the relief and recovery effort in the aftermath of an emergency. 18. The definition of law of the Commonwealth includes a law in force in an external Territory or the Jervis Bay Territory, so far as the law is so in force because of an Act providing for the acceptance, administration or government of that Territory. 19. The definition of national emergency declaration refers to subclause 11(1) which enables the Governor-General to make a national emergency declaration. 20. The definition of national emergency law lists the following provisions: (a) section 15 or 16 of this Act (b) section 16 of the Adelaide Airport Curfew Act 2000 (c) section 14 of the Air Navigation (Essendon Fields Airport) Regulations 2018 (d) section 17 of the Air Navigation (Gold Coast Airport Curfew) Regulations 2018 (e) section 250 of the Airports Act 1996 (f) section 20 of the Air Services Regulations 2019 (g) Division 7 of Part 4 of the Aviation Transport Security Act 2004 (h) section 16A or 17 of the Christmas Island Emergency Management Ordinance 2012 (i) regulation 11.185 of the Civil Aviation Safety Regulations 1998 (j) section 16A or 17 of the Cocos (Keeling) Islands Emergency Management Ordinance 2012 (k) section 88 or 90 of the Competition and Consumer Act 2010 (l) section 23YUF of the Crimes Act 1914 (m) section 96A of the Designs Act 2003 (n) section 9 of the Disaster and Emergency Management Act 2001 (Norfolk Island) 10

(o) section 28 or 158 of the Environment Protection and Biodiversity Conservation Act 1999 (p) section 19 of the Environment Protection (Sea Dumping) Act 1981 (q) section 30-45A of the Income Tax Assessment Act 1997 (r) section 67 of the Industrial Chemicals Act 2019 (s) section 15 of the Jervis Bay Territory Emergency Management Ordinance 2015 (t) section 16 of the Liquid Fuel Emergency Act 1984 (u) section 33 of the Maritime Transport and Offshore Facilities Security Act 2003 (v) section 86E of the National Health Act 1963 (w) Part 2 and section 60A of the National Health Security Act 2007 (x) Clause 2A of Schedule 2A of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (y) section 163A of the Patents Act 1990 (z) section 80J of the Privacy Act 1988 (za) section 49, 172, 196, 219 or 220 of the Radiocommunications Act 1992 (zb) section 36 or 36A of the Social Security Act 1991 (zc) section 124PJ of the Social Security (Administration) Act 1999 (zd) section 18 of the Sydney Airport Curfew Act 1995 (ze) section 313 of the Telecommunications Act 1997, and (zf) section 18A, 32CB or 41GS of the Therapeutic Goods Act 1989. 21. This definition is used as part of the tests for the Prime Minister to request the declaration of a national emergency in clause 11, and to request the variation of a declaration to extend its duration in clause 12. 22. In addition, the definition provides an authoritative list of the provisions across the statute book that contain powers that may be enlivened, or the operation of which may be modified, while a national emergency declaration is in force. The fact that a provision is listed in the definition of national emergency law is not intended to otherwise affect the interpretation or operation of the provision. In the case of listed provisions that contain multiple powers, or multiple bases on which a particular power may be exercised, the fact that the provision is listed in the definition is not intended to affect the interpretation or operation of those powers or bases that do not relate to a national emergency declared under this Act. 23. The definition of nationally significant harm is harm that has a significant national impact because of its scale or consequences and is any of the following:  harm to the life or health (including mental health) of an individual or group of individuals  harm to the life or health of animals or plants  damage to property, including infrastructure  harm to the environment  disruption to an essential service. 24. The definition is limited to the specified kinds of harm and is not intended to include, for example, pure economic loss, such as may arise during a financial crisis. There is an 11

existing comprehensive legislative and regulatory framework to address financial crises which provides for intervention powers that have been carefully set to balance flexibility and certainty and are suitable to address financial crises. It is possible that a financial crisis could result in harm falling within the definition of 'nationally significant harm', such as disruption to an essential service, in which case the Prime Minister could consider whether it would be appropriate to request the Governor-General make a national emergency declaration. 25. The requirement that the harm must have a significant national impact because of its scale or consequences will ensure that a national emergency declaration may only be made in exceptional circumstances, where the scale or consequences of the harm rise to the level of creating a significant national impact. A harm that is geographically localised may nevertheless have a nationally significant impact. For example, the failure of a major dam may cause localised but catastrophic harm to one or more nearby regions, towns or cities, that has a nationally significant impact. Nationally significant harm may include, for example:  widespread damage across multiple jurisdictions, for example as the result of a catastrophic natural disaster or multiple simultaneous or consecutive disasters, to the extent that a nationally coordinated response and recovery effort is required  an incident in a single town or city, such as a major chemical or radiological incident, or a large-scale terrorist attack, that causes such extensive loss of life, damage to property or risks to health, as to have a significant national impact  an incident, such as a cyber security incident, that causes a severe disruption to, or the non-availability of, one or more essential services across Australia or in a part of Australia  an incident that impacts on the continuity of the executive government of a state or territory, such that the government of that state or territory is incapacitated. 26. 'Essential service' is not defined and is intended to be interpreted broadly to include, for example, electricity, gas, water, carriage services, fuel, transport, sewerage, sanitation, health and medicine, food supply and other services. Part 2--National emergency declarations Clause 11 - Governor-General may make a national emergency declaration 27. This clause sets out the conditions for making a national emergency declaration. Subclause 11(1) provides that the Governor-General may make a declaration (a national emergency declaration) if the Prime Minister is satisfied that:  an emergency has recently occurred, is occurring or is likely to occur (whether in or outside Australia) (paragraph 11(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 (paragraph 11(1)(b)), and  any of the following apply: 12

o 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 making of the declaration (subparagraph 11(1)(c)(i)) o because of the emergency, it is not practicable for a request to be made under subparagraph 8(1)(c)(i) (subparagraph 11(1)(c)(ii)) o the emergency has affected, is affecting or is likely to affect Commonwealth interests (subparagraph 11(1)(c)(iii)), or o the making of the declaration is appropriate, having regard to the nature of the emergency, or likely emergency, and the nature and severity of the nationally significant harm, or likely nationally significant harm (subparagraph 11(1)(c)(iv)), and  for reasons relating to emergency management, it is desirable for the declaration to be made for the purposes of one or more national emergency laws (paragraph 11(1)(d)). 28. Emergency is not defined, and instead takes its natural and ordinary meaning, which supports the 'all hazards' approach adopted in the national emergency declaration framework. This is important so as not to limit the circumstances in which a declaration can be made to certain types or kinds of defined emergencies. The Macquarie Dictionary defines emergency as an unforeseen occurrence; a sudden and urgent occasion for action. The term 'emergency' is not intended to include predictable, ongoing or recurring events such as drought or the effect of long term coastal erosion. The term is also not intended to include protests or industrial action. These matters will not constitute an emergency for the purposes of the Act. 29. The term 'emergency' is not intended to be limited to a single incident or disaster. It is intended that multiple concurrent or successive incidents or disasters, or incidents and disasters that occur in a particular set of circumstances, may together constitute an emergency. For example, the concept of an emergency is intended to encompass a situation where a tropical cyclone causes severe damage to property and infrastructure in a region, followed by flooding that results in the failure of essential services such as sanitation and water supply. 30. The term 'emergency' must be read in conjunction with the definition of nationally significant harm. Consistent with the 'all hazards' approach, 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 type or cause of the emergency. The unprecedented and unpredictable nature of the COVID-19 pandemic has demonstrated the importance of such flexibility to ensure that the national emergency declaration framework will apply to emergencies that are beyond our current thinking, experience and imagination. 31. Nevertheless, the types of emergencies that may be the subject of a national emergency declaration include, for example:  major natural disasters--such as, bushfires that spread across multiple jurisdictions and threaten significant danger to life and property, or a geomagnetic storm that 13

causes, or threatens to cause, extensive disruption or damage to electricity, satellite and communications networks  communicable disease outbreaks that pose a major threat to the health and life of Australians, including outbreaks that are spreading out of control overseas and are likely to reach Australia  large-scale cyber incidents or terrorist attacks--such as a malicious cyber-attack that causes a prolonged and widespread failure in the energy sector, resulting in shortages of essential medical supplies, impacts on water supply and sanitation and disruption to the supply of food  major chemical, biological or radiological incidents, whether accidental or deliberate  emergencies occurring overseas, to the extent that such emergencies cause, or are likely to cause, nationally significant harm within Australia--such as a natural disaster that causes extensive damage to major international maritime ports or disruption to critical shipping channels and disrupts the availability of essential services in Australia, and  a combination of the above emergencies occurring concurrently or consecutively, that together has caused, is causing, or is likely to cause nationally significant harm--such as multiple natural disasters occurring concurrently in different parts of the country, during a pandemic that complicates response and recovery efforts, and that collectively cause, or are likely to cause, nationally significant harm. 32. Paragraph 11(1)(a) captures emergencies that have recently occurred to ensure the national emergency declaration framework can be used to assist in the immediate response and recovery efforts in the aftermath of an emergency. This framework is not intended to be used once the immediate response and recovery need is addressed. The concept of 'immediate aftermath' should not be read as being limited to a fixed period of time following an emergency--it will differ depending on the nature, scale and severity of an emergency, and the progress of the relief and recovery effort. 33. Paragraph 11(1)(a) also captures emergencies that have not yet occurred but are likely to occur. The intention is to enable the Governor-General to declare a national emergency in circumstances where an emergency has not yet eventuated, even if it is anticipated to take several days to eventuate or the timeframe is uncertain. This is to ensure that a wide range of emergencies are captured, such as a severe cyclone that is forming off the coast and is predicted to make landfall in several days. It is not necessary for the Prime Minister to be satisfied that an emergency that has not yet occurred is likely to occur at or before any particular time. 34. Paragraph 11(1)(a) captures emergencies that occur both in and outside of Australia. This is to ensure that an emergency that occurs overseas but that causes, or is likely to cause, nationally significant harm in Australia are captured by the framework--for example a pandemic that is spreading out of control overseas and is likely to reach Australia at some future point in time. 35. The requirement in paragraph 11(1)(b) for the emergency to have caused, be causing or be likely to cause nationally significant harm limits the harm to Australia or an Australian offshore area. This ensures the national emergency declaration framework does not overlap with the Department of Foreign Affairs and Trade's responsibilities under the Australian 14

Government Crisis Management Framework for managing overseas crises. The framework captures nationally significant harm in the Australian offshore area to ensure circumstances such as an incident at an oil rig that causes harm to Australia's marine environment comes within the national emergency declaration framework. It is not necessary for the Prime Minister to be satisfied that nationally significant harm that has not yet been caused is likely to be caused at or before any particular time. 36. Paragraph 11(1)(c) provides two primary pathways for declaring a national emergency. Subparagraph 11(1)(c)(i) will apply if the Prime Minister is satisfied that 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 making of the declaration. The alternative test set out in subparagraphs 11(1)(c)(ii)-(iv) allows the Governor-General to declare a national emergency in limited circumstances, where one or more relevant State or Territory governments have not requested that the declaration be made. However, subclause 11(2) will require the Prime Minister to consult with State or Territory governments before the Governor-General may make a declaration under subparagraphs 11(1)(c)(ii)-(iv) in some cases. 37. Subparagraph 11(1)(c)(i) requires that the Prime Minister be satisfied that the governments of each State and Territory in which the emergency has caused, is causing or is likely to cause nationally significant harm--rather than the States or Territories in which the emergency has occurred, is occurring or is likely to occur--have requested, in writing, the making of the declaration. The tests focuses on the jurisdiction or jurisdictions in which the harm has occurred, is occurring or is likely to occur, because:  the framework captures emergencies that occur outside of Australia and is focused on the harm caused, or likely to be caused, as a result in Australia, and  some emergencies may result in nationally significant harm that extends far beyond the immediate event. 38. In some cases, it may be challenging for the Prime Minister to know which jurisdictions have suffered, or to predict which jurisdictions are likely to suffer, nationally significant harm, as the result of an emergency. In an emergency, it may be undesirable for the Prime Minister to delay advising the Governor-General to declare a national emergency until such time as the Prime Minister has absolute certainty as to this fact. To accommodate this inherent uncertainty, subparagraph 11(1)(c)(i) requires that the Prime Minister be satisfied that the government of each relevant jurisdiction has requested that a declaration be made, rather than requiring that each such government has, in fact, requested that a declaration be made. 39. Subparagraph 11(1)(c)(ii) will apply if the Prime Minister is satisfied that, because of the emergency, it is not practicable for one or more State or Territory governments to request that a declaration be made. This test 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. 15

40. Subparagraph 11(1)(c)(iii) will apply if the Prime Minister is satisfied that the emergency has affected, is affecting, or is likely to affect Commonwealth interests. 'Commonwealth interests' is not defined and is intended to reflect the full extent of the Commonwealth's constitutional interests and power, and may include, for example, the protection of Commonwealth property or facilities (such as Parliament House or Defence facilities across the nation), the protection of Commonwealth public officials as well as visiting foreign dignitaries or heads of State, and major events like the Commonwealth Games or G20. The ability for the Governor-General to declare a national emergency in such circumstances, without a request from one or more State or Territory governments, is in recognition of the fact that it is the Commonwealth's responsibility to protect the Commonwealth's interests. 41. Subparagraph 11(1)(c)(iv) will apply if the Prime Minister is satisfied that the making of the declaration is appropriate, having regard to the nature of the emergency and the nature and severity of the nationally significant harm. This test is intended to apply in circumstances where the tests in subparagraphs 11(1)(c)(ii) and (iii) are not applicable, but there are nevertheless pressing reasons for the Prime Minister to request a declaration without the request of one or more relevant State or Territory governments. This may include where, for example, an emergency is causing nationally significant harm in multiple jurisdictions and one (but not all) of those jurisdictions has requested a national emergency declaration be made.  Paragraph 11(1)(d) requires that the Prime Minister be satisfied that, for reasons relating to emergency management, it is desirable for the declaration to be made for the purposes of one or more national emergency laws. The terms 'emergency management' and 'national emergency law' are defined in clause 10. 42. Subclause 11(2) provides that before the Governor-General makes a national emergency declaration in relation to an emergency, the Prime Minister must consult with the government of each State or Territory (if any) in which the Prime Minister is satisfied the emergency has caused, is causing or is likely to cause nationally significant harm. Subclause 11(2) is intended to require consultation with the States and Territories as a default position. The caveat '(if any)' is intended to ensure that the Prime Minister is not required to consult the States or Territories where the emergency has caused, is causing or is likely to cause nationally significant harm in the Australian offshore area. 43. Subclause 11(2) is to be read subject to subclause 11(3), which provides that subclause 11(2) does not require the Prime Minister to consult with the government of a State or Territory if:  the government of the State or Territory requested the making of the national emergency declaration under subparagraph 11(1)(c)(i)--in which case there would be limited utility to further consultation, or  the Prime Minister is satisfied that it is not practicable to do so. 44. The combined effect of subparagraph 11(1)(c)(ii), subclause 11(2) and paragraph 11(3)(b) is that, if the Prime Minister is satisfied that because of the emergency it is not practicable for one or more State or Territory governments to request that a national emergency be declared, the Prime Minister must nevertheless consult each State or Territory government that he or she is satisfied that is practicable to consult. The combined effect of 16

these provisions is intended to ensure that consultation is undertaken to the greatest extent practicable, but without impeding the ability for the Governor-General to declare a national emergency where it is not practicable to consult with one or more governments. 45. Subclause 11(4) sets out the requirements for a national emergency declaration. It provides that a declaration must be in writing and must specify the following:  the emergency to which the declaration relates, and  the nature of the emergency and the circumstances that gave rise to it, and  the period for which the declaration is in force.  A note follows subclause 11(4) to clarify that the declaration may be varied under clauses 12 and 13. 46. Subclause 11(5) provides that the period during which the declaration is in force must not be longer than (a) the period that the Prime Minister considers necessary for the purposes of emergency management, and (b) in any case, must not be longer than 3 months. Paragraph 11(5)(a) ensures that the period during which the declaration is in force is proportionate to the purpose for which the declaration is made. Paragraph 11(5)(b) limits the period that a national emergency declaration may be in force to a period of three months to ensure there is a fixed point in time where the declaration must be re-evaluated to determine whether it is still required and appropriate. The profound symbolic nature of a declaration of a national emergency, as well as the range of powers which are available, or more easily satisfied, when a national emergency declaration is in force, requires that a declaration should only be in force for as long as necessary to manage the nationally significant harm posed by the emergency. 47. A note immediately follows subclause 11(5) to clarify that the period that an emergency declaration is in force may be extended under clause 12 and the declaration may be revoked under clause 14. 48. Subclause 11(6) provides that a natural emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration. A core objective of the declaration is to clearly signal to the Australian community the severity of the emergency event, and provide certainty about the Commonwealth's role, and the statutory powers that are available, in respect of a particular emergency event. This objective would be undermined if such a declaration were disallowable, as the prospect of disallowance is likely to call into question the status of the emergency event. 49. This exemption also reflects the critical nature of the declaration, which puts into effect a range of mechanisms that may be employed to respond to the emergency event. The making of the declaration ensures that urgent and decisive action can be taken in response to a nationally significant emergency event. This also provides the greatest level of certainty for emergency response agencies about the legal framework under which they are operating, including the various legal obligations and duties that may flow from the making of a declaration. If a declaration were disallowed, it would destabilise the framework under which emergency response agencies are operating, leading to uncertainty and potential delays in the response and recovery effort where time is of the essence. 17

Clause 12 - Governor-General may extend period for which a national emergency is in force 50. This clause sets out the conditions for extending a national emergency declaration. Subclause 12(1) provides that the Governor-General may, in writing, vary a national emergency declaration that relates to an emergency to extend the period for which it is in force (for a further period of up to three months) if the Prime Minister is satisfied that:  the national emergency has recently occurred or is occurring (whether in or outside of Australia) (paragraph 12(1)(a)), and  the national emergency has caused, is causing or is likely to cause nationally significant harm in Australia or in an Australian offshore area (paragraph 12(1)(b)), and  any of the following apply: o 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 (subparagraph 12(1)(c)(i)), or o because of the emergency, it is not practicable for a request to be made under subparagraph 12(1)(c)(i) (subparagraph 12(1)(c)(ii)), or o the emergency has affected, is affecting or is likely to affect Commonwealth interests (subparagraph 12(1)(c)(iii)), or o extending the period is appropriate, having regard to the nature of the national emergency and the nature and severity of the nationally significant harm ((subparagraph 12(1)(c)(iv)), and  for reasons relating to emergency management, it is desirable for the declaration to be in force for a longer period for the purposes of one or more national emergency laws (paragraph 12(1)(d)). 51. The test to extend a national emergency period largely replicates the test to make a national emergency declaration which is an important safeguard to ensure extensions can only be made where the initial circumstances still exist. The test to extend a national emergency period does not capture emergencies that are likely to occur because if the anticipated emergency has not occurred within the preceding three months, it would not be appropriate for the national emergency period to be extended. 52. Subclause 12(2) provides that before the Governor-General varies a national emergency declaration to extend the period for which it is in force, 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 18

 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. 53. Subclause 12(2) allows for the possibility that, as an emergency unfolds, it might cross into additional States or Territories after the initial declaration of emergency is made, and where an extension for a declaration is being considered in such circumstances, consultation with the governments of those States or Territories is appropriate. 54. Subclause 12(3) provides that subclause 12(2) 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, similar to subparagraph 11(1)(c)(ii) and paragraph 11(3)(b), above. 55. Subclause 12(4) provides that the Governor-General may vary a national emergency declaration to extend the period for which it is in force more than once. However, each extension must not exceed three months. This is consistent with the maximum period for an original declaration under clause 11, and the reasons for that maximum period. 56. Subclause 12(5) provides that a variation to extend the duration of a national emergency declaration under subclause 12(1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration. This is consistent with the exemption provided in relation to the initial declaration. The exemption 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 emergency event. Clause 13 - Governor-General may vary any other aspect of a national emergency declaration 57. 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 Minister is satisfied that:  the national emergency has recently occurred or is occurring (whether in or outside of Australia) (paragraph 13(1)(a)), and  the national emergency has caused, is causing or is likely to cause nationally significant harm in Australia or in an Australian offshore area (paragraph 13(1)(b)), and  any of the following apply: o 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 (subparagraph 13(1)(c)(i)), or o because of the emergency, it is not practicable for a request to be made under subparagraph 12(1)(c)(i) (subparagraph 13(1)(c)(ii)), or 19

o the emergency has affected, is affecting or is likely to affect Commonwealth interests (subparagraph 13(1)(c)(iii)), or o extending the period is appropriate, having regard to the nature of the national emergency and the nature and severity of the nationally significant harm ((subparagraph 13(1)(c)(iv)), and  for reasons relating to emergency management, it is desirable for the declaration to be in force for a longer period for the purposes of one or more national emergency laws (paragraph 13(1)(d)). 58. It may be necessary to vary other aspects of a declaration, such as the specification of the emergency to which the declaration relates or the nature of the emergency and the circumstances that gave rise to it, in situations where the nature of the emergency has changed. For example, if the Governor-General had declared a national emergency in relation to a cyclone that had caused significant damage to property and resulted in flooding, but there was subsequently an outbreak of disease related to the flood water, it may be desirable to vary the declaration to specify that the disease forms part of the emergency. 59. 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. 60. 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. 61. 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. 62. 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 20

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. 63. Subclause 13(2) clarifies that the Governor-General may vary a national emergency declaration under subclause 13(1) more than once. 64. Subclause 13(3) provides that a variation under subclause 13(1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the variation. This is consistent with the exemption provided in relation to the initial declaration. The exemption 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 continue to be taken with certainty in response to a nationally significant emergency event, even where the nature of the emergency changes or evolves. Clause 14 - Governor-General may revoke a national emergency declaration 65. This clause allows the Governor-General to revoke a national emergency declaration. Subclause 14(1) provides that the Governor-General may, in writing, revoke a national emergency declaration if the Prime Minister is satisfied that, in all the circumstances, it is appropriate to do so. Enabling the Governor-General to revoke a declaration is an important safeguard to ensure that where the circumstances that justified the making of the declaration no longer exist, the Governor-General can revoke the declaration before the end of the period of the national emergency declaration. 66. Subclause 14(2) provides that a revocation made under subclause 14(1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the revocation. This reflects the critical need for certainty, and the principle that the declaration should not be in force for any longer than is appropriate and necessary in the circumstances. Clause 14A - Review of national emergency declaration 67. This clause provides 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. 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. 68. The purpose of this clause 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. 21

Part 3--Modifications of administrative requirements during a national emergency Clause 15 -Ministers may modify administrative requirements during a national emergency 69. Subclause 15(1) provides that this clause applies in relation to a provision (an affected provision) of a law of the Commonwealth that requires or permits any of the following matters (a relevant matter):  the giving of information in writing  the signature of a person  the production of a document by a person  the recording of information  the retention of documents or information  the witnessing of signatures  the certification of matters by witnesses  the verification of the identity of a person  the attestation of documents  the reporting or notification of a matter to a Department, agency or authority of the Commonwealth. 70. The clause includes a note following subclause 15(1) which provides that this clause does not apply to some affected provisions and refers to subclause 15(8) which lists those provisions. 71. Subclause 15(2) provides that if a national emergency declaration is in force, a responsible Minister for an affected provision may, by legislative instrument, determine that, to the extent that the affected provision relates to a relevant matter:  the affected provision is varied as specified in the determination in relation to a period specified in the determination  the affected provision does not apply in relation to a period specified in the determination, or  the affected provision does not apply, and that another provision specified in the determination applies instead, in relation to a period specified in the determination. 72. The purpose of a determination under subclause 15(2) is to enable Ministers and decision-makers to suspend, vary or substitute requirements in legislation they administer when a national emergency declaration is in force, where this would be of benefit to the public, or a section of the public, during or following a national emergency. It would allow 22

Ministers and decision-makers to act quickly and decisively in response to a declared national emergency and adopt a tailored approach to suspending, varying and substituting regulatory requirements, depending on the particular emergency event. 73. The determination can be classified as a Henry VIII clause, which enables delegated legislation to alter or override the operation of primary legislation. In the context of a national emergency declaration, such a clause is justified as a time-limited, targeted mechanism to facilitate the provision of support to communities affected by the declared emergency. The clause, which may apply to a wide variety of Acts or instruments, is specifically confined to certain kinds of procedural requirements, as enumerated in the Bill. It is intended to have beneficial application, in that it would make it easier for persons affected by a declared national emergency to obtain government support without having to complete, for instance, certain manner and form requirements, or requirements for official documents to be witnessed or provided. 74. The power for Ministers to make such determinations acknowledges that it may not be possible for individuals or entities to meet certain regulatory requirements, in an emergency. For example:  due to a flood or fire, a person may be unable to produce certain proof of identity documents, which may prevent them from obtaining support  a person or entity may be unable to have certain documents certified or signatures witnessed due to the imposition of public health measures during a pandemic. 75. The power to suspend, vary or substitute requirements in subclause 15(2) is limited to the enumerated list of requirements set out in subclause 15(1). The power would not, for example, enable a Minister to modify, suspend or substitute substantive provisions, such as eligibility criteria for a benefit or statutory criteria for a decision, or impose any obligations or liabilities on individuals. 76. Subclause 15(3) provides that a determination under subclause 15(2) has effect accordingly. 77. Subclause 15(4) provides that a responsible Minister for an affected provision must not make a determination under subclause 15(2) in relation to the affected provision unless the responsible Minister is satisfied that:  the determination is in response to circumstances relating to the emergency to which the national emergency declaration relates, and  making the determination will be of benefit to the public, or a section of the public. 78. The determination is intended to benefit the public, or sections of public, during or following a national emergency by making it easier for those affected by a declared national emergency to, for example, obtain government support without having to complete certain manner and form or witnessing and verification requirements. 79. Subclause 15(5) provides that the determination must specify the national emergency declaration to which it relates. 23

80. Subclause 15(6) provides that if a responsible Minister makes a determination under subclause 15(2), the responsible Minister may, by legislative instrument, vary or revoke the determination. This ensures that where the circumstances that justified the making of the determination change, the relevant Minister can vary the determination to tailor the suspension, variation and substitution of regulatory requirements to the particular emergency event. It also ensures that where the circumstances justifying the determination no longer exist, the relevant Minister can revoke the determination. 81. Subclause 15(7) provides that a determination under subclause 15(2) is in force for the period starting on the day specified in the determination (which may be earlier than the day the determination is made) and ending at the earliest of the following:  if the determination specifies a day on which it ceases to be in force - the start of that day  if the determination is revoked - the end of the day the revocation takes effect, or  the start of the day on which the national emergency declaration to which the determination relates ceases to be in force. 82. Subclause 15(7) enables a determination under subclause 15(2) to apply retrospectively for the purpose of validating approaches to manner and form requirements, verification of identity requirements and reporting requirements during an emergency that may otherwise have been invalid. This may include, for example, validating approaches that have been put in place by front-line staff in disaster-affected areas on an administrative basis in the immediate aftermath to an emergency. 83. A similar retrospective provision was included in the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 to enable certain matters (including the giving of information and the signature, production and witnessing of documents) to be temporarily altered or adjusted in response to circumstances relating to the coronavirus. This was necessary to respond flexibly to the unprecedented challenges of a pandemic, particularly the challenges posed by social distancing measures. For example, an instrument was made under that Act to modify requirements for signatures and witnessing of signatures for applications made under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. A determination under subclause 15(2) would serve a similar purpose to the in the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020, which is time-limited. 84. Retrospective provisions engage, and must comply with, the requirements set out in the Legislation Act 2003. Subsection 12(2) of the Legislation Act 2003 provides that retrospective commencement of an instrument is of no effect if the retrospective commencement would disadvantage the rights of a person, other than the Commonwealth. Subclause 15(7) of the Bill does not offend this provision. As provided by paragraph 15(4)(b), the determination must be of benefit to the public or a section of the public. As a determination can only have beneficial application, the fact that it may commence before registration is consistent with the requirements in the Legislation Act 2003. 85. Subclause 15(8) provides that the power to vary, suspend or substitute requirements under clause 15 does not apply to: 24

 Part IAA, IAAA, IAB, IAC, IC or ID of the Crimes Act 1914  the Australian Crime Commission Act 2002  the Australian Federal Police Act 1979  the Australian Security Intelligence Organisation Act 1979  the Intelligence Services Act 2001  the Surveillance Devices Act 2004  the Telecommunications (Interception and Access) Act 1979  the Auditor-General Act 1997  Part 14 of the Australian Securities and Investments Commission Act 2001  the Human Rights (Parliamentary Scrutiny) Act 2011  the Inspector-General of Intelligence and Security Act 1986  the Law Enforcement Integrity Commissioner Act 2006  the Ombudsman Act 1976  the Parliamentary Joint Committee on Law Enforcement Act 2010  the Parliamentary Proceedings Broadcasting Act 1946  the Public Accounts and Audit Committee Act 1951  the Public Works Committee Act 1969, or  a law, or a provision of a law, of the Commonwealth prescribed by regulations for the purposes of this paragraph. 86. The carve-out in subclause 15(8) is an important safeguard to ensure that certain legislation, or parts of certain legislation, cannot be suspended, varied or substituted by this clause where that legislation:  contains coercive and intrusive powers--for example, by suspending the requirement for an agency to make an application for a warrant in writing, or to notify an oversight authority of a required matter in relation to the exercise of such powers, or  relates to the establishment and functions of oversight bodies and Parliamentary statutory committees. 87. The regulation-making power in paragraph 15(8)(h) will allow additional provisions to be excluded from the determination-making power in subclause 15(2), as necessary. This 25

may include provisions of a similar nature to those listed in paragraphs 15(8)(a)-(g), or other provisions that should not be suspended, varied or substituted. 88. Subclause 15(9) provides that for the purposes of this clause, a responsible Minister for an affected provision is:  if the affected provision is a provision of an Act - any Minister who administers that Act, or  if the affected provision is a provision of an instrument made under an Act - any Minister who administers the enabling legislation (within the meaning of the Legislation Act 2003) under which the instrument is made. Part 4--Other matters Clause 16 - Provision of emergency management information 89. Subclause 16(1) provides that this clause applies if a national emergency declaration is in force. Subclause 16(2) provides that the Prime Minister may, by written notice, require an accountable authority of a Commonwealth entity to provide specified information to the Prime Minister for the purposes of preparing for, responding to or recovering from an emergency to which the national emergency declaration relates. 90. Subclause 16(3) provides that, without limiting subclause 16(2), information may relate to stockpiles of medical or other supplies held by or available to the Commonwealth entity, or assets or other resources held by or available to the Commonwealth entity, or options or recommendations relating to actions that may be taken by the Commonwealth. 91. The purpose of this power is to ensure government can quickly gain a comprehensive picture of the resources at its disposal and what could be made available to assist in the response to or recovery from a national emergency. The inclusion of this power in legislation is intended to provide a clear, formal basis for any such requests. 92. Subclause 15(4) provides that a notice under subclause 15(2) must specify the period within which the information must be provided. 93. Subclause 15(5) provides that this clause has effect despite any other law of the Commonwealth. This subclause is intended to ensure that the Prime Minister may require entities to report, or provide options or recommendations to inform the government's consideration of how best to respond to the emergency, even where legislation creating statutory entities contains provisions preventing such a direction being made. 94. For the avoidance of doubt, subclause 15(5) would not enable the Prime Minister to direct an agency to take further action based on information, options or recommendations provided under clause 15, where another Act would otherwise prevent such a direction being made--for example, to release a stockpile or implement an option. 95. Subclause 15(6) provides that in this clause 'accountable authority' has the meaning given by the Public Governance, Performance and Accountability Act 2013 (PGPA Act), and that 'Commonwealth entity' has the meaning given by the PGPA Act. Subsection 12(2) of the PGPA Act provides that each Commonwealth entity has an accountable authority and sets 26

out a table listing the person or body that is the accountable authority of a Commonwealth entity. Section 10 of the PGPA Act provides that a Commonwealth entity is a Department of State, a Parliamentary Department, a listed entity, a body corporate that is established by a law of the Commonwealth, or a body corporate that is established under a law of the Commonwealth and is prescribed by an Act or the rules to be a Commonwealth entity. Clause 17 - Reporting on the exercise of powers etc. under national emergency laws 96. Subclause 17(1) provides that this clause will apply if a national emergency declaration is made, and powers are exercised or functions are performed under a national emergency law for the purposes of the declaration. 97. Subclause 17(2) provides that the Minister responsible for administering each such national emergency law must prepare and give to the Minister a report on the exercise of the powers or the performance of the functions. 98. Subclause 17(3) provides that the report must include:  the national emergency declaration to which the report relates  the national emergency law to which the report relates  the powers that have been exercised or the functions that have been performed under the national emergency law, and  any other matter prescribed by the regulations for the purposes of this paragraph. 99. The regulation-making power in paragraph 17(3)(d) will allow additional matters to be prescribed, as necessary, to enhance the level of information reported to the Minister and, ultimately, to the Parliament and public. 100. Paragraph 17(4)(a) provides that the report must be given, unless paragraph 17(4)(b) applies, as soon as practicable after the national emergency declaration ceases to be in force. Paragraph 17(4)(a) would apply where a national emergency declaration has been made, but expires without being extended (meaning that the declaration has been in force for 3 months or less), and would require the preparation and tabling under subclause 17(5) of a single report following the expiry of the declaration. 101. Paragraph 17(4)(b) applies if the national emergency declaration is extended, or further extended, and provides that the report must be given:  within 3 months after the declaration came into force, and  every subsequent period of 3 months (or part thereof) that the declaration remains in force. 102. Paragraph 17(4)(b) establishes a periodic reporting requirement, where a national emergency declaration is extended, to ensure that the Parliament and the public receive regular reports on the exercise of powers or the performance of functions under national emergency laws for the purposes of the declaration. 27

103. Subclause 17(5) provides that the Minister administering the Act must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable after the Minister receives it. Where the Minister receives multiple reports, this requirement will be satisfied if the Minister tables a single report that includes a copy of each report. 104. Subclause 17(6) provides that, despite subclause 17(3), the report that the Minister tables in the Parliament must not include information that the Minister is satisfied is commercially sensitive, affects national security, or is a kind of information prescribed by the regulations for the purposes of paragraph 17(6)(c). 105. The regulation-making power in paragraph 17(6)(c) will allow additional kinds of information to be prescribed, as necessary. This may include, for example, information that would ordinarily not be required to meet tabling requirements under Acts that contain national emergency laws--such as information relating to an exemption for the stockpiling of therapeutic goods, including biologicals and medical devices, to create a preparedness to deal with a potential threat to public health, which is not subject to tabling requirements under the Therapeutic Goods Act 1989. Clause 18 - Review of operation of this Act 106. Paragraph 18(a) 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 the operation of this Act by immediately after the Act commences and report the Committee's findings to the Senate by 30 June 2021. 107. Paragraph 18(b) 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 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. Clause 19 - Regulations 108. This clause provides that the Governor-General may make regulations prescribing matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act. 28

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