House of Representatives

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Emergency Declaration (Consequential Amendments) 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 operates in conjunction with the National Emergency Declaration Bill 2020 to implement Recommendation 5.1 of the RCNNDA by establishing a legislative framework for declaring national emergencies. 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 National Emergency declaration Bill is to:

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provide a legislated framework for the Commonwealth to declare a national emergency, in circumstances where an emergency has caused, is causing or is likely to cause nationally significant harm, and

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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. This Bill complements that framework by amending the legislation listed in that Schedule to streamline the exercise of the powers where a national emergency has been declared. It does so in the following ways::

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where the powers currently contain an 'emergency' test - removing the legal requirement for each decision-maker to separately consider whether there is an 'emergency' in circumstances where a national emergency has been declared

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in the case of powers that are often exercised in an emergency, but that do not currently contain an emergency test - allowing decision-makers to exercise each power if they are satisfied that it is necessary to respond to, or support the recovery from, the declared national emergency, and

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where the tests for those emergency powers contain elements that overlap with the test for making a national emergency declaration - creating an alternative simplified test where a national emergency has been declared that does not contain the overlapping elements.

5. The declaration of a national emergency would enliven this streamlined framework for the exercise of the emergency powers to support the response to, and immediate recovery from, the emergency, and would enable the Commonwealth to act more quickly. The framework would not:

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duplicate existing powers

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affect the availability of the powers outside of a national emergency

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preclude decision-makers from relying on pre-existing tests for the exercise of a power during a national emergency if it would be more convenient or appropriate to do so, or

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alter which Minister or official is responsible for exercising each power.

6. The purpose of the Bill, in conjunction with the National Emergency Declaration Bill, is to create a simplified legislative framework for the exercise of the Commonwealth's national emergency powers.

Human rights implications

7. This Bill engages the following rights:

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the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

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the right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

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the right to social security in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

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the right to an adequate standard of living in Article 11 of the ICESCR, and

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the right to health under Article 12 of the ICESCR.

The right to life in Article 6 of the ICCPR

8. The right to life in 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.

9. 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 to the life of an individual or group of individuals.

10. 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:

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assisting to prevent or mitigate a greater proportion of the harm caused by the emergency, and

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enabling relief to be provided to individuals and communities affected by the emergency more promptly.

11. Streamlining the statutory tests for the exercise of Commonwealth emergency powers where the Governor-General has made a national emergency declaration will ensure the Commonwealth can act rapidly in exercising emergency powers to support an efficient and effective emergency response that could save lives.

12. For example, simplifying the requirement to establish a major natural disaster or large-scale emergency, where a national emergency declaration has been made, in the test to grant exemptions from compliance with the Civil Aviation Safety Regulations 1998 would allow the Commonwealth to more quickly grant exemptions that might save lives. Following the devastation of Darwin by Cyclone Tracey, for example, an exemption was granted permitting airliners to operate when overloaded to allow the evacuation of the city as quickly as possible.

The right to freedom from arbitrary or unlawful interference with privacy in Article 17 of the ICCPR

13. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. This right may be subject to permissible limitations where those limitations are provided by law and are not arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

Amendments to the Privacy Act 1988

14. The Bill will amend the Privacy Act 1988 (Privacy Act) to simplify the statutory test to make an emergency declaration where the Governor-General has made a national emergency declaration under the National Emergency Declaration Act 2020 (NED Act) . When an emergency declaration is in force under the Privacy Act, a person, agency or organisation (an entity) may collect use or disclose an individual's personal information for purposes related to the emergency in ways that would otherwise not be permitted (such as where obtaining consent would be impracticable or unreasonable).

15. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. Australia experiences recurring natural disasters, including bushfires, cyclones and floods, which are likely to become more frequent and intense over the coming decades as a result of changes in the climate. Disasters caused by humans, such as major chemical or radiological incidents, large-scale acts of terrorism, or the failure of critical infrastructure have the potential to cause significant loss of life and other harms. COVID-19 continues to illustrate the medium- and long-term harms that pandemic can cause. The amendments to the Privacy Act are intended to assist the Commonwealth in responding to and recovering from a national emergency, and to prevent or mitigate the harms that are likely to impact the Australian community.

16. The amendments to the Privacy Act are proportionate to achieving that objective. The amendments remove elements of the statutory test to make an emergency declaration that overlap with the test for making a national emergency declaration where a declaration is already in force. The Privacy Act also contains safeguards limiting the authorised collection, use and disclosure of personal information when an emergency declaration is in force by only enabling an entity to collect use or disclose the individual's person information if:

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the entity reasonably believes the individual is or may be involved in an emergency or disaster, and

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the collection, use or disclosure is for a permitted purpose that directly relates to the Commonwealth's response to the emergency or disaster.

17. Some examples of the types of purposes that the collection, use and disclosure of personal information is intended to be used for include:

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identifying individuals who are, or may be, injured, missing or dead as a result of the emergency or disaster, and

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assisting individuals involved in the emergency or disaster to obtain services (such as repatriation, medical, financial or other humanitarian assistance).

18. These limitations on the collection, use or disclosure of personal information when an emergency declaration is in force ensures that any engagement of the right to privacy is consistent with Article 17 of the ICCPR.

Amendments to the Crimes Act 1914

19. The Bill will amend the Crimes Act 1914 to simplify the requirement to establish a national emergency, where the Governor-General has made a national emergency declaration, in the test to make a determination relating to an incident that permits access to, and disclosure of, information stored on DNA databases and that permits DNA matching for certain purposes.

20. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. This pursues the legitimate objective of streamlining the test to access, use and disclose information on DNA databases during a national emergency for the purpose of identifying an unidentified person who died in or as a result of an incident, or the purpose of conducting a criminal investigation in relation to such an incident.

21. The amendments are proportionate to achieving that objective as they only remove elements of the statutory test to make an emergency declaration that overlap with the test for making a national emergency declaration where a declaration is already in force.

The right to social security in Article 9 of the ICESCR

22. Article 9 of the ICESCR relates to the right of everyone to social security, including social insurance. This requires governments to, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

23. The Bill engages the right to social security as it provides for assistance to be given to people affected by natural disasters and emergencies. The Bill promotes this right by streamlining the statutory tests for accessing existing benefits where the Governor-General has declared a national emergency. For example, the Bill amends the:

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National Health Act 1953 to simplify the requirement to establishment 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

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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, 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, 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, and

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Social Security (Administration) Act 1999 to enable the Secretary of the Department of Social Services to make a determination varying the restrictable payment portions for 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.

The right to an adequate standard of living in Article 11 of the ICESCR

24. 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.

25. 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:

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harm to the health, including mental health, of an individual or group of individuals

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harm to the health of animals or plants

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damage to property, including infrastructure

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harm to the environment, and

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disruption to an essential service.

26. These types of harm are likely to impact on the right to an adequate standard of living. For example, nationally significant harm 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. Widespread damage to property could impact access to, and supply of, housing. Extensive damage to infrastructure or an essential service could impact access to medical services, sanitation and basic goods.

27. 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:

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assisting to prevent or mitigate a greater proportion of the harm caused by the emergency

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enabling relief to be provided to individuals and communities affected by the emergency more promptly, and

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supporting efforts to recover from the harm caused by the emergency.

The right to health in Article 12 of the ICESCR

28. 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:

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the improvement of all aspects of environmental and industrial hygiene

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and the prevention, treatment and control of epidemic, endemic, occupational and other diseases, and

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the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

29. 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 includes any of the following:

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harm to the health, including mental health, of an individual or group of individuals

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harm to the health of animals or plants

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damage to property, including infrastructure

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harm to the environment, and

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disruption to an essential service.

30. 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 the introduction of a pathogen to Australia, could impact on Australia's food production systems, food security and water supply. Widespread damage to property or could impact access to basic shelter and housing. Extensive damage to infrastructure or an essential service could impact access to medical services and sanitation.

31. 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:

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assisting to prevent or mitigate a greater proportion of the harm caused by the emergency

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enabling relief to be provided to individuals and communities affected by the emergency more promptly, and

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supporting efforts to recover from the harm caused by the emergency.

32. For example, enabling 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 would allow the Commonwealth to act more quickly to ensure that these items may be stockpiled or can be made urgently available to deal with threats to public health.

33. 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.

Limitations

34. The right to health may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

35. The Bill amends the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to:

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simplify the requirement to establish an emergency, where the Governor-General has made a national emergency declaration, 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, 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 relates to requirements for environmental approvals).

36. The Bill also amends the Environment Protection (Sea Dumping) Act 1981 (EP Act) to simplify the requirement to establish an emergency, where the Governor-General has made a national emergency declaration, 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.

37. To justify a limitation of human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome that is desirable or convenient. Australia frequently suffers from natural disasters, including bushfires, cyclones and floods, which are likely to become more frequent and intense over the coming decades as a result of changes in the climate. Man-made disasters, such as major chemical or radiological incidents, large-scale acts of terrorism, or the failure of critical infrastructure have the potential to cause significant loss of life and other harms. The amendments to the EPBC Act and the EP Act could result in actions that are harmful to the environment which could then engage the right to health. However, the amendments pursue the legitimate objective of taking those actions only in a national emergency for the purpose of responding to or recovering from the emergency.

38. The amendments are proportionate to achieving that objective as they retain a high threshold to enable those actions to be taken, and only remove elements of the statutory test that are already required to be established in order to declare a national emergency.

Conclusion

39. While the Bill engages a range of human rights, it is compatible with human rights in that it promotes some rights and to the extent that it limits some rights, the limitations are reasonable, necessary and proportionate in achieving a legitimate objective.