House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

GENERAL OUTLINE

1. The National Emergency Declaration (Consequential Amendments) Bill 2020 (the Bill) operates in conjunction with the National Emergency Declaration Bill 2020 to implement Recommendation 5.1 of the Royal Commission into National Natural Disaster Arrangements (RCNNDA) by establishing a legislative framework for declaring national emergencies.

2. The Bill amends Acts and Regulations that contain powers that are 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. The Bill amends the:

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Adelaide Airport Curfew Act 2000 to enable aircraft to take off from, or land at, Adelaide Airport during a curfew period where the aircraft is being used for, or in connection with, a declared national emergency

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Air Navigation (Essendon Fields Airport) Regulations 2018 to enable aircraft with a maximum take-off weight of no more than 50,000kg to take off from, or land at, Essendon Fields Airport despite certain curfew restrictions and weight limits where the aircraft is being used for, or in connection with, a declared national emergency

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Air Navigation (Gold Coast Airport Curfew) Regulations 2018 to enable aircraft to take off from, or land at, Gold Coast Airport during a curfew despite restrictions if the aircraft is being used for, or in connection with, a declared national emergency

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Airports Act 1996 to enable a notice to be given to an airport operator to give access, or priority access, to airport services for the purpose of managing a declared national emergency

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Air Services Regulations 2019 to explicitly enable Airservices Australia to provide services and facilities to assist in a declared national emergency

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Aviation Transport Security Act 2004 to enable the Secretary of the Department of Home Affairs to issue a special security direction requiring additional security measures where those measures are appropriate to support a national emergency declaration

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Christmas Island Emergency Management Ordinance 2012 to enable the declaration of an emergency situation or state of emergency in Christmas Island where the Governor-General has made a national emergency declaration with respect to an emergency which is affecting the Territory

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Civil Aviation Safety Regulations 1998 to simplify the ability for the Civil Aviation Safety Authority to grant exemptions from compliance with certain requirements in the regulations or a Civil Aviation Order, where the Governor-General has made national emergency declaration

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Cocos (Keeling) Islands Emergency Management Ordinance 2012 to enable the declaration of an emergency situation or state of emergency in the Cocos (Keeling) Islands where the Governor-General has made a national emergency declaration with respect to an emergency which is affecting the Territory

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Competition and Consumer Act 2010 to allow the Australian Competition and Consumer Commission to authorise a person to engage in anti-competitive conduct where that conduct would assist in the response to or recovery from a declared national emergency

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Crimes Act 1914 to simplify the statutory test for the making of a determination that permits access to and the disclosure of information stored on DNA databases, and that permits DNA matching and disclosure of deceased person's DNA to family members, to support victim identification, where the Governor-General has made a national emergency declaration

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Designs Act 2003 to simplify the statutory test for the Crown use of a registered design in an emergency, where the Governor-General has made a national emergency declaration

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Environment Protection and Biodiversity Conservation Act 1999 to:

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simplify the requirement to establish an emergency in the test to allow Commonwealth actions that have, will have, or are likely to have, a significant impact on the environment where the actions are necessary in the interests of preventing, mitigating or dealing with a national emergency, where the Governor-General has made a national emergency declaration,, and

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clarify that 'national emergency' includes a declared national emergency in the test to exempt a person proposing to take a controlled action from a specified provision of Part 3 or Chapter 4 (which relate to requirements for environmental approvals)

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Environment Protection (Sea Dumping) Act 1981 to simplify the requirement to establish an emergency in the test to grant a permit for dumping, incineration at sea or loading for dumping or incineration at sea, of any controlled material where there is an emergency, where the Governor-General has made a national emergency declaration

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Income Tax Assessment Act 1997 to create an alternative test for declaring an event to be a disaster for the purpose of deducting a gift made to a disaster relief fund, where the Governor-General has declared the event is a national emergency

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Industrial Chemicals Act 2019 to create an alternative test for issuing an exceptional circumstances authorisation for the introduction of an industrial chemical where a national emergency declaration has been made

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Jervis Bay Territory Emergency Management Ordinance 2015 to enable the declaration of a state of emergency in Jervis Bay where the Governor-General has made a national emergency declaration with respect to an emergency which is affecting the Territory

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Liquid Fuel Emergency Act 1984 to create an alternative test for declaring a liquid fuel emergency where the Governor-General has made a national emergency declaration and it is necessary in the public interest to do so because there is, or is likely to be, a shortage of liquid fuel of such magnitude as to require the making of directions under sections 17-24 (for example, a direction requiring fuel industry corporations to take necessary measures to make liquid fuel available for purchase)

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Maritime Transport and Offshore Facilities Security Act 2003 to enable the Secretary of the Department of Home Affairs to issue a security direction requiring additional security measures where those measures are appropriate to support a national emergency declaration

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National Health Act 1953 to simplify the requirement to establish an emergency in the test to determine the classes of persons in respect of whom an entitlement to pharmaceutical benefits can be evidenced otherwise than by provision of a Medicare number, where the Governor-General has declared a national emergency

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National Health Security Act 2007 to:

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enliven the framework in Part 2 for public health surveillance and information sharing, where the Governor-General has declared a national emergency relating to public health, and

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simplify the requirement to establish that there is a threat involving a security-sensitive biological agent in the test to suspend the operation of certain requirements relating to testing, handling and disposal of agents, where the Governor-General has declared a national emergency.

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Norfolk Island Continued Laws Ordinance 2015 to provide that where the Governor-General has made a national emergency declaration that affects the Territory that this is an emergency for the purposes of declaring a state of disaster or emergency in Norfolk Island

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Offshore Petroleum and Greenhouse Gas Storage Act 2006 to simplify the requirement to establish an emergency in the test to declare an oil pollution emergency, where the Governor-General has declared a national emergency

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Patents Act 1990 to simplify the requirement to establish an emergency in the test to allow the exploitation of an invention that would otherwise infringe a patent, where the Governor-General has declared a national emergency,

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Privacy Act 1988 to remove elements of the statutory test to make an emergency declaration (which enables collection, use or disclosure of personal information in certain circumstances where an emergency exists) that overlap with the test for making a national emergency declaration, where the Governor-General has made a national emergency declaration

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Radiocommunications Act 1992 to:

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provide that a national emergency declaration is to be taken to be a period of emergency during which the Infrastructure Minister may make a restrictive order prohibiting or regulating the use of radiocommunication transmitters, or the operation of transmitters if such use is likely to interfere with radiocommunications, and

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extend the exceptions in sections 49, 172 and 196 (for offences related to unlicensed operation and unlawful possession of radiocommunication devices, radio transmission by non-standard transmitters, possession of non-standard devices, and offences related to radio emission) to a person doing anything the person reasonably believes is necessary for the purpose of responding to or recovering from a declared national emergency

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Social Security Act 1991 to:

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allow the Home Affairs Minister to determine an event is a major disaster, for the purpose of disaster recovery payments under section 1061K, if the Governor-General has declared the event is a national emergency, and

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allow the Minister to determine an event is a Part 2.23B major disaster, for the purpose of disaster recovery allowance under section 1061KA, if the Governor-General has declared the event is a national emergency and it has had a significant impact on one or more industries and/or one or more areas that a government response in the form of income support is required

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Social Security (Administration) Act 1999 to enable the Secretary of the Department of Social Services to make a determination reducing the restricted portion of a restrictable payment under cashless welfare arrangements if a person is unable to use their debit card that is attached to their welfare restricted bank account, or is unable to access that account, as a direct result of a declared national emergency

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Sydney Airport Curfew Act 1995 to enable aircraft to take off from, or land at, Sydney Airport during a curfew period where the aircraft is being used for, or in connection with, a declared national emergency

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Telecommunications Act 1997 to:

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introduce an obligation on telecommunications providers to give such help as is reasonably necessary during certain types of emergencies, for example in sending emergency messages, and providing for immunities and cost-recovery where providers give such help, and

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allow the Minister to make guidelines in relation to the obligation to give help in relation to such emergencies, and

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Therapeutic Goods Act 1989 to enable therapeutic goods, including biologicals and medical devices, to be exempted from certain requirements (such as registration and listing) as part of the response to or recovery from the declared national emergency, where the Governor-General has declared a national emergency.

3. The Bill also amends the Administrative Decisions (Judicial Review) Act 1977 to exempt from judicial review under that Act, decisions made under Part 2 of the National Emergency Declaration Act 2020 (NED Act) in relation to the making, extension, variation or revocation of a declaration made under sections 11, 12, 13 and 14 of the NED Act.

4. The Bill further makes amendments contingent on the passage and commencement of the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 to:

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amend the Radiocommunications Act 1992 to simplify the requirement to establish an emergency in the test to exempt a person from liability for civil penalties, in circumstances of sudden and extraordinary emergency, where the Governor-General has declared a national emergency, and

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amend the National Emergency Declaration Act 2020 to include the abovementioned powers in the definition of national emergency laws.

FINANCIAL IMPACT

5. The amendments in the Bill have no financial impact.