Trevor Evans (Brisbane, Liberal Party, Assistant Minister for Waste Reduction and Environmental Management) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and—by leave—I move government amendments (1) to (5) as circulated together:

(1) Clause 4, page 3 (line 20), omit "within 5 years after the Act commences", substitute "immediately after the Act commences, and begin a further review of the operation of the Act within 5 years after that. A Senate Committee must also begin a review of each national emergency declaration by the first anniversary of the day on which the declaration is made".

(2) Clause 13, page 11 (lines 19 and 20), omit all the words after "declaration", substitute "that relates to an emergency if the Prime Minister is satisfied that:

(a) the emergency has recently occurred or is occurring (whether in or outside Australia); and

(b) the emergency has caused, is causing or is likely to cause nationally significant harm in Australia or in an Australian offshore area; and

(c) any of the following subparagraphs apply:

  (i) 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 variation;

  (ii) because of the emergency, it is not practicable for a request to be made under subparagraph (i);

  (iii) the emergency has affected, is affecting or is likely to affect Commonwealth interests;

  (iv) varying the declaration is appropriate, having regard to the nature of the national emergency and the nature and severity of the nationally significant harm; and

(d) for reasons relating to emergency management, it is desirable to vary the declaration for the purposes of one or more national emergency laws.

(1A) Before the Governor General varies a national emergency declaration under subsection (1), the Prime Minister must consult with:

(a) 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

(b) the governments of each State and Territory that were consulted under subsection 11(2); and

(c) 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.

(1B) Subsection (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."

(3) Page 12 (after line 3), at the end of Part 2, add:

14A Review of national emergency declaration

The Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate, must:

(a) begin a review of each national emergency declaration made under section 11 by the first anniversary of the day the declaration is made; and

(b) report the Committee's findings to the Senate as soon as practicable after completing the review.

(4) Clause 15, page 15 (after line 12), after paragraph (8) (g), insert:

(ga) the Auditor-General Act 1997; or

(gb) Part 14 of the Australian Securities and Investments Commission Act 2001; or

(gc) the Human Rights (Parliamentary Scrutiny) Act 2011; or

(gd) the Inspector-General of Intelligence and Security Act 1986; or

(ge) the Law Enforcement Integrity Commissioner Act 2006;

(gf) the Ombudsman Act 1976; or

(gg) the Parliamentary Joint Committee on Law Enforcement Act 2010; or

(gh) the Parliamentary Proceedings Broadcasting Act 1946; or

(gi) the Public Accounts and Audit Committee Act 1951; or

(gj) the Public Works Committee Act 1969; or

(5) Clause 18, page 18 (lines 5 to 8), omit paragraphs (a) and (b), substitute:

(a) begin a review of the operation of this Act immediately after this Act commences and report the Committee's findings to the Senate by 30 June 2021; and

(b) begin a review of the operation of this Act by the fifth anniversary of the day this Act commences and report the Committee's findings to the Senate as soon as practicable after completing the review.

The amendments on sheet 1 implement further amendments to align the threshold to vary a national emergency declaration with the existing threshold to extend a declaration; to expand the list of legislation that cannot be suspended, varied or substituted during a national emergency to include additional legislation relating to the establishment and functions of oversight bodies and parliamentary statutory committees; and to strengthen the existing review requirements to include a review of the legislation immediately upon passage and report by 30 June next year and a review of the operation of the legislation by the first anniversary of each date on which the Governor-General makes a declaration. I will now outline the amendments on sheet 1.

Amendment (1) relates to review of the national emergency declaration framework. The bill and explanatory memorandum will be amended so the simplified outline reflects the additional review requirements—namely, a review immediately after the legislation commences and a review of each national emergency declaration by the first anniversary of the day on which the declaration was made. This is in addition to the existing requirement to review the operation of the legislation by the fifth anniversary of the legislation commencing. The amendment will be in the form of a revised clause 4.

Amendment (2) is to align thresholds to vary and extend a declaration. The bill and explanatory memorandum will be amended to align the threshold to vary a national emergency declaration—for example, to include additional disaster affected areas—with the threshold to extend a national emergency declaration. This amendment provides an important safeguard to ensure that a national emergency declaration can only be varied where the circumstances that justified the making or extension of the declaration still exist and retain consultation as a default position when varying a declaration. The amendment will be in the form of a revised subclause 13(1) and new subclauses 13(1A) and 13(1B).

Amendment (3) relates to review of declarations. The bill and explanatory memorandum will be amended to enhance the review requirements by requiring the Senate Standing Committee on Legal and Constitutional Affairs to review each national emergency declaration made. The declaration of a national emergency should be an exceptional and infrequent event. By definition, a national emergency may only be declared where Australia has suffered, is suffering or is facing the risk of nationally significant harm. It's almost certain that there will be important learnings from the response to and recovery from such events. To ensure that the effectiveness of the framework can be assessed, this amendment ensures a review of each declaration that's made by the Governor-General occurs by the first anniversary of the day on which it was made.

Amendment (4) sets out additional legislation not subject to power to modify administrative requirements. The bill and explanatory memorandum will be amended to expand the list of legislation that cannot be suspended, varied or substituted during a national emergency. This additional legislation relates to the establishment and functions of oversight bodies and parliamentary statutory committees. The amendment will be in the form of a revised subclause 15(8). Subclause 15(8) also contains a regulation-making power which is intended to allow for items to be added to the list of requirements in acts and provisions that cannot be suspended, varied or substituted during a national emergency as required. I can indicate now that the government intends to prescribe requirements contained in the Australian Information Commissioner Act 2010, the Freedom of Information Act 1982 and the Privacy Act 1988 as requirements that the minister cannot suspend, vary or substitute during a national emergency.

Amendment (5) relates to the time frames for review of the legislation. The bill and explanatory memorandum will be amended to strengthen the requirements for reviewing the operation of the legislation as well as retaining the requirement to review the operation of the legislation by the fifth anniversary of it commencing. This amendment will also require the Senate Standing Committee on Legal and Constitutional Affairs to review the legislation immediately after it commences and to report by 30 June 2021. That's next year. The amendment will be in the form of a revised clause 18. I commend the amendments to the House.

Question agreed to.

Bill, as amended, agreed to.