On 10 December the Parliament passed the National Emergency Declaration Bill. The Bill will now go to the Governor-General for royal assent and will then become law. I expect that will happen any day now.
I have previously written on what I think is a national emergency – see What is a national emergency? A question the Royal Commission into National Natural Disaster Arrangements is asking (May 11, 2020) and the various papers and posts that are linked there. In my post What is a national emergency? Answer: Covid-19 (March 25, 2020) I said:
… there are three situations that would meet the definition of a true national disaster. They are:
1. A disaster is having impact on areas allocated to the Commonwealth by the Australian Constitution;
2. The disaster is so large that it overwhelms the ability of state governments to function;
3. The disaster is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response.
The Bill (at s 11(1)) provides that the Governor-General, acting on the advice of the Prime Minister, may make a national emergency declaration in the following circumstances:
(a) an emergency has recently occurred, is occurring or is likely to occur (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 making of the declaration;
(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) 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; and
(d) 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.
‘Nationally significant harm’ means (s 10):
… harm that:
(a) has a significant national impact because of its scale or consequences; and
(b) is any of the following:
(i) harm to the life or health (including mental health) of an individual or group of individuals;
(ii) harm to the life or health of animals or plants;
(iii) damage to property, including infrastructure;
(iv) harm to the environment;
(v) disruption to an essential service.
The prescribed circumstances are consistent with the arguments previously made. That is a disaster can be declared
(1) if the states ask for it which by implication is that the event is requires the Commonwealth’s intervention that is the event ‘is truly national in character or impact so that it is ‘peculiarly within the capacity and resources of the Commonwealth Government’ to manage the response’. The declaration can also be made where it ‘is appropriate, having regard to the nature of the emergency and the nature and severity of the nationally significant harm’. (Both of those are consistent with my example (3) above).
(2) Where it is not practicable to wait for a request for the states eg if the state governments are so overwhelmed they are unable to function (that is my example (2) above).
(3) Where it is the Commonwealth’s interests that are being affected (my example (1) above).
Before making a declaration, except where an affected state has asked for the declaration to be made, 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.’
An emergency declaration is in force for not more than 3 months but may be extended, in each case by not more than 3 months (ss 11(5) and 12).
There is to be an automatic review of the declaration and the response to the emergency. The review is conducted by ‘The Senate Standing Committee on Legal and Constitutional Affairs, or such other committee constituted under a resolution of the Senate’. The review must begin no later than one year after the declaration is made (s 14A).
The effect of the declaration is that it gives Ministers the power to modify or vary provisions of legislation (s 15) that
… requires or permits any of the following matters (a relevant matter):
(a) the giving of information in writing;
(b) the signature of a person;
(c) the production of a document by a person;
(d) the recording of information;
(e) the retention of documents or information;
(f) the witnessing of signatures;
(g) the certification of matters by witnesses;
(h) the verification of the identity of a person;
(i) the attestation of documents;
(j) the reporting or notification of a matter to a Department, agency or authority of the Commonwealth.
The other effect is that whilst a national emergency declaration is in force:
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.
Commentary
The Bill, as passed, does not go as far as it might have. It says nothing about Commonwealth power to manage an emergency nor does it appoint a federal coordinating officer to coordinate the entire Commonwealth government response. There is no link between the declaration and natural disaster relief and recovery funding or the use of the ADF as contemplated by the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (Cth) (discussed at Federal Parliament passes the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (December 15, 2020)) which also passed through the Parliament on 8 December 2020. The Bill does not empower the Commonwealth to take the lead in the response or direct the states how to manage the emergency occurring in their jurisdiction. It allows the Commonwealth to remove barriers to response and recovery by removing ‘red tape’ barriers to action. Where a Minister exercises any power under s 15 he or she must report that to the Minister responsible for the National Emergency Declaration Act who must, in due course, table the reports in Parliament (s 17).
This is a very conservative Bill. The Royal Commission into National Natural Disaster Arrangements recommended (recommendation 5.1)
The Australian Government should make provision, in legislation, for a declaration of a state of national emergency. The declaration should include the following components:
(1) the ability for the Australian Government to make a public declaration to communicate the seriousness of a natural disaster
(2) processes to mobilise and activate Australian Government agencies quickly to support states and territories to respond to and recover from a natural disaster, and
(3) the power to take action without a state or territory request for assistance in clearly defined and limited circumstances.
The Bill really doesn’t meet those recommendations. It allows the government to make a public declaration but does little to ‘mobilise and activate Australian Government agencies quickly’ and whilst in certain circumstances the declaration can be made without the consent of the states, it does not provide for the Commonwealth a power to ‘take action’ other than to modify legislative requirements with respect to ‘a relevant matter’.
