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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend various Acts and Regulations that contain powers
used by the Commonwealth when responding to, or supporting
the recovery from,
emergencies to enable the use of alternative or simplified statutory tests to
streamline the exercise of those
powers where a national emergency has been
declared
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 3 December 2020
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1.1 Item 2 of Schedule 1 seeks to insert proposed paragraph (zfa) into Schedule 1 to the Administrative Decisions (Judicial Review Act) 1977 (the ADJR Act). This would exempt decisions made under Part 2 of the National Emergency Declaration Act 2020, in relation to a declaration made under proposed subsection 11(1), from judicial review under the ADJR Act. This is intended to cover advice provided by the Prime Minister to the Governor-General in relation to a decision made under Part 2 of the National Emergency Declaration Bill 2020 in the event that such advice constitutes a decision.[21]
1.2 Judicial review of certain decisions made under the National Emergency Declaration Bill 2020 is nonetheless available under section 39B of the Judiciary Act 1903 and paragraph 75(v) of the Constitution.[22]
1.3 Where a provision excludes the operation of the ADJR Act, the committee expects that the explanatory memorandum should provide a justification for the exclusion. In this instance, the explanatory memorandum states:
Decisions of the Governor-General are not subject to review under the ADJR Act, pursuant to paragraph (d) of the definition of decision to which this Act applies in section 3 of that Act. As such, a decision of the Governor-General to declare a national emergency under section 11 of the NED Act or to extend, vary or revoke such a declaration under sections 12, 13 or 14 of that Act, would not be subject to review of the ADJR Act. The purpose of this item is to place beyond doubt that, if the Prime Minister’s advice to the Governor-General in relation to a decision under Part 2 of the NED Act was considered to constitute a ‘decision’ for the purposes of the ADJR Act, that such a decision would not be subject to review under the ADJR Act, to ensure that the non-application of the ADJR Act to decisions of the Governor-General is not undermined by the character of the decisions that relate to the making of a declaration.[23]
1.4 The ADJR Act is beneficial legislation that overcomes a number of technical and remedial complications that arise in an application for judicial review under alternative jurisdictional bases (principally, section 39B of the Judiciary Act 1903) and also provides for the right to reasons in some circumstances. From a scrutiny perspective, the committee considers that the proliferation of exclusions from the ADJR Act should be avoided.
1.5 In light of the detailed information provided in the explanatory memorandum, and the availability of judicial review under section 39B of the Judiciary Act 1903 and paragraph 75(v) of the Constitution, the committee leaves to the Senate as a whole the appropriateness of exempting decisions made under Part 2 of the National Emergency Declaration Bill 2020 from the judicial review under the ADJR Act.
1.6 Item 40 of Schedule 1 seeks to insert proposed subsection 80J(2) into the Privacy Act 1988. Section 80J of the Privacy Act 1988 provides that the Prime Minister or the minister may declare an emergency where they are satisfied that an emergency or disaster has occurred and it is of such a kind that it is appropriate in the circumstances for Part VIA of the Privacy Act 1988 to apply. The emergency or disaster must be of national significance and affect one or more Australian citizens or permanent residents. Proposed subsection 80J(2) provides that the Prime Minister or the minister may also make a declaration under section 80J if a national emergency declaration is in force, and they are satisfied that the emergency to which the declaration relates is of such a kind that it is appropriate in the circumstances for Part VIA to apply.
1.7 The effect of this is to authorise the collection, use and disclosure of personal information by entities in relation to affected individuals at any time an emergency declaration is in force, in line with the further requirements in section 80P. As per subsection 80L(3), an emergency declaration made under section 80J is not a legislative instrument.
1.8 The committee's view is that any exemption of instruments from the usual disallowance process should be fully justified in the explanatory memorandum. In this instance, the explanatory memorandum states:
The purpose of this item is to simplify the process for the making of an emergency declaration under Part VIA of the Privacy Act where a national emergency declaration is in force, by omitting criteria in the statutory test for the making of an emergency declaration that overlap with the criteria for the making of a national emergency declaration.[25]
1.9 While noting this explanation, the committee does not consider that a desire to simplify legislative procedures or to have consistency with existing legislative provisions is an adequate justification for such measures to be provided for in an instrument other than a legislative instrument. The committee notes that such instruments are excluded from all forms of parliamentary oversight, including disallowance.
1.10 The committee's scrutiny concerns in this instance are heightened by the potential impact of the provisions on individual privacy.
1.11 In light of the above, the committee requests the Attorney-General's advice as to why it is considered necessary and appropriate to leave the activation of provisions authorising the collection, use and disclosure of personal information to non-disallowable instruments which are not subject to parliamentary scrutiny.
1.12 Item 55 of Schedule 1 seeks to insert proposed subsection 313(4A) into the Telecommunications Act 1997. Proposed subsection 313(4A) provides that a carrier or carriage service provider must, in connection with the operation or supply of services, give officers and authorities of the Commonwealth and the States and Territories such help as is reasonably necessary for the following purposes:
• preparing for, responding to or recovering from an emergency to which a national emergency declaration in force relates;[27]
• preparing for, responding to or recovering from a disaster or emergency that has been declared to be a disaster or state of emergency by or with the approval of a minister of a State or Territory under that law;[28] and
• preparing for, responding to or recovering from an emergency about which a declaration made under proposed subsection 313(4D) relates.[29]
1.13 Proposed subsection 314(4B) provides for the same measures in relation to carriage service intermediaries.
1.14 Proposed subsection 313(4D) provides that the minister may declare in writing that an emergency exists, and proposed subsection 313(4F) provides that such a declaration is a legislative instrument exempt from disallowance. Proposed subsection 313(4H) provides that the minister may formulate guidelines, by legislative instrument, which under proposed subsection 313(4G) the officer or authority of the Commonwealth, State or Territory who is requiring help under proposed subsections 313(4A) or (4B) must have regard to.
1.15 The committee's view is that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. In this instance, the explanatory memorandum states:
New subsection 313(4F) provides that a declaration made under subsection 313(4D) is a legislative instrument, but that section 42 of the Legislation Act 2003 (disallowance) does not apply to the declaration. This aligns with the status of a national emergency declaration under the NED Act. A declaration made under subsection 313(4D) can be made independently of a declaration being made under the NED Act. A key objective of the declaration is to provide clarity and certainty about the status of an emergency event, whether impending or currently existing. Certainty will be critical to ensure that participants are sufficiently prepared and can readily divert resources to assist in the response and recovery effort. The prospect of a declaration being disallowed would undermine a key objective of the making of such a declaration, and may disrupt the underlying framework that would support further action being taken. This provision provides telecommunications companies with certainty that once the Minister declares that an emergency exists, there is no risk that immunities would fall away in the event of Parliamentary disallowance.[30]
1.16 While noting this explanation, from a scrutiny perspective it is unclear to the committee why it is necessary for the minister to have a secondary power to declare an emergency for the purposes of proposed subsections 313(4A) and (4B), when these provisions are enlivened when a declaration of emergency is made under the National Emergency Declaration Bill 2020. The power to declare an emergency in proposed subsection 313(4D) appears to be a much broader power when compared to the National Emergency Declaration Bill 2020, which requires certain conditions to first be met before an emergency may be declared. By contrast, there is no guidance or criteria on the face of the bill to be taken into account by the minister when making a non-disallowable emergency declaration under proposed subsection 313(4D).
1.17 In addition, the committee does not consider that the prospect of disallowance would undermine certainty during an emergency, as the subsequent disallowance of an instrument does not invalidate actions taken under it prior to disallowance. Moreover, the committee notes the observations of the Senate Standing Committee for the Scrutiny of Delegated Legislation in its Interim report on the exemption of delegated legislation from parliamentary oversight which are outlined at paragraphs 1.33–1.38 above.[31]
1.18 The committee's scrutiny concerns are heightened by the broad, onerous and potentially intrusive powers that proposed subsections 313(4A) and 313(4B) provide for in relation to requiring carriers, carriage service providers and carriage service intermediaries to give such help as is reasonably necessary to officers and authorities of the Commonwealth and the States and Territories.
1.19 In light of the above, the committee requests the Attorney-General's advice as to whether the bill can be amended to:
• provide that an emergency declaration made under proposed subsection 313(4D) is subject to parliamentary disallowance; and
• set out at least high-level guidance in relation to when an emergency may be declared under proposed subsection 313(4D).
1.20 Items 60, 65 and 70 of Schedule 1 extend the circumstances in which the minister may exempt therapeutic goods, biologicals and devices from the operation of Division 2 of Part 3-2 of the Therapeutic Goods Act 1989 (the Act) by non-legislative instrument.
1.21 Existing section 18A provides the minister with the power to exempt specified therapeutic goods or classes of therapeutic goods from the operation of Division 2 of Part 3-2 of the Act. Subsection 18A(2) sets out the criteria that the minister must be satisfied of in determining that it is in the national interest to exempt such goods. Item 60 would insert proposed subsection 18A(2A) into section 18A to provide that an exemption may be made if a national emergency declaration is in force, and either the exemption should be made so that goods may be stockpiled to deal with a potential threat to public health,[34] or so that the goods can be urgently available to deal with an actual threat to public health.[35] The health emergency must be the emergency to which the national emergency declaration relates.
1.22 An exemption made under subsection 18A of the Act is not a legislative instrument as per subsection 18A(9A).
1.23 Item 65 seeks to insert proposed subsection 32CB(2A) which provides for the same measures in relation to exempting biologicals from the operation of Division 4 of the Act by non-legislative instruments.
1.24 Item 70 seeks to insert proposed subsection 41GS(2A) which provides for the same measures in relation to exempting medical devices from Division 1 of Part 4-2 and Division 1 of Part 4-3, Part 4-4- and Part 4-5 of the Act by non-legislative instruments.
1.25 Provisions enabling delegated legislation to modify the operation of primary legislation are akin to Henry VIII clauses, which authorise delegated legislation to amend primary legislation. While, in this instance, the provisions do not allow delegated legislation to directly amend the primary legislation, the committee has significant scrutiny concerns with Henry VIII-type clauses, as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. Consequently, the committee expects a sound justification to be included in the explanatory memorandum for the use of any clauses that allow delegated legislation to modify the operation of primary legislation.
1.26 In this regard, no explanation has been provided in the explanatory memorandum as to why it is necessary and appropriate for proposed subsections 18A(2A), 32CB(2A) and 41GS(2A) to provide for further circumstances under which the operation of the Therapeutic Goods Act 1989 may be modified by non-legislative instruments.
1.27 In addition, items 62, 67 and 72 of Schedule 1 seek to limit the circumstances in which these non-legislative instruments made under the Therapeutic Goods Act 1989 must be tabled in the Parliament. Each of these items provides that only instruments made under proposed subparagraphs 18A(2A)(b)(ii), 32CB(2A)(b)(ii), and 41GS(2A)(b)(ii) are subject to tabling in the Parliament. This has the effect that non-legislative instruments exempting specified therapeutic goods, biologicals or devices from the operation of the Therapeutic Goods Act 1989 on the basis of a 'potential' as opposed to 'actual' threat to public health will be exempt from tabling requirements.
1.28 The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are only published online. As such, the committee expects there to be appropriate justification where instruments are not required to be tabled in the Parliament.
1.29 In relation to each of the three items the explanatory memorandum explains that this approach is consistent with the current tabling requirements not applying to the similar existing exemptions.[36] While noting this, the committee's view is that the fact that a certain matter continues current arrangements does not, of itself, provide an adequate justification. The committee's concerns in this regard are heightened by the fact that non-legislative instruments are subject to little to no parliamentary scrutiny, particularly noting that they are exempt from the disallowance process.
1.30 As no justification has been provided in the explanatory materials, the committee requests the Attorney-General's advice as to:
• why it is considered necessary and appropriate to include powers in the bill which allow non-legislative instruments to modify the operation of the Therapeutic Goods Act 1989; and
• why it is necessary and appropriate to provide that instruments made under proposed subparagraphs 18A(2A)(b)(i), 32CB(2A)(b)(i), and 41GS(2A)(b)(i) are not required to be tabled in the Parliament.
[20] Schedule 1, item 2, proposed paragraph (zfa) of Schedule 1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[21] Explanatory memorandum, p, 16.
[22] Explanatory memorandum, p. 16.
[23] Explanatory memorandum, p. 16.
[24] Schedule 1, item 40, proposed subsection 80J(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).
[25] Explanatory memorandum, p. 34.
[26] Schedule 1, item 55, proposed subsections 313(4A) – (4H). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[27] Proposed paragraph 313(4A)(c).
[28] Proposed paragraph 313(4A)(d).
[29] Proposed paragraph 313(4A)(e).
[30] Explanatory memorandum, p. 42.
[31] Senate Standing Committee for the Scrutiny of Delegated Legislation, Interim report on the Exemption of delegated legislation from parliamentary oversight (2 December 2020) p. 62.
[32] Schedule 1, item 60, proposed subsection 18A(2A); item 65, proposed subsection 32CB(2A); and item 70, proposed subsection 41GS(2A). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[33] Schedule 1, item 62, proposed paragraph 18A(11)(a); item 67, proposed paragraph 32CF(2)(a); item 72, proposed paragraph 41GW(2)(a)(v).
[34] Subparagraph 18A(2A)(b)(i).
[35] Subparagraph 18A(2A(b)(ii).
[36] Explanatory memorandum, pp. 45, 46, and 48.
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