1.1
On 25 August 2022, the Senate Legal and Constitutional Affairs Legislation Committee (the committee) commenced a review of the National Emergency (2022 New South Wales Floods) Declaration 2022 (the NSW Floods Declaration) for report by 4 November 2022. This date was subsequently extended to the third sitting day of 2023 (8 February 2023).
Conduct of the review and acknowledgements
1.2
The committee advertised the review on its website and called for submissions by 23 September 2022. The committee also wrote to a number of individuals and organisations, inviting them to make a submission. The committee received two submissions, which are listed at Appendix 1 and are available on the committee’s website at www.aph.gov.au/senate_legalcon. The committee thanks the organisations who assisted with the review.
National Emergency Declaration Act 2020
1.3
The National Emergency Declaration Act 2020 (NED Act) came into operation on 16 December 2020. The Act provides a legislative framework for the declaration of a national emergency by the Governor-General of the Commonwealth of Australia (the Governor-General), on the advice of the Prime Minister of the Commonwealth of Australia (the Prime Minister).
1.4
In a joint submission to the review, the Department of Home Affairs (Home Affairs), the Department of the Prime Minister and Cabinet (PM&C) and the National Emergency Management Agency (NEMA) commented:
The legislative framework takes an ‘all hazards’ approach, encompassing a broad range of natural and human-induced disasters, while ensuring that national emergency declarations [NEDs] are only made in exceptional circumstances, where the scale and consequence of the harm caused (or anticipated) rises to significant national impact.
Conditions for making a NED
1.5
Under the NED Act, the Governor-General may make a NED if the Prime Minister is satisfied of four criteria:
(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.
1.6
Before the Governor-General makes a NED in relation to an emergency, the Prime Minister must also consult with each government of a state or territory government (if any) in which the emergency has caused, is causing or is likely to cause nationally significant harm. This consultation requirement does not apply if:
the state or territory government requested the making of the NED; or
the Prime Minister is satisfied that it is not practicable to consult with the state or territory government.
1.7
The term ‘nationally significant harm’ means harm that has ‘a significant national impact because of its scale or consequences’ and 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.
1.8
According to the Explanatory Memorandum (EM) to the NED Act, ‘the requirement that the harm must have a significant national impact because of its scale or consequences will ensure that a [NED] may only be made in exceptional circumstances’. The EM provides four examples of what might constitute ‘nationally significant harm’, including:
widespread damage across multiple jurisdictions, for example as the result of a catastrophic natural disaster or multiple simultaneous or consecutive disasters, to the extent that a nationally coordinated response and recovery effort is required.
The purpose of a NED
1.9
The NED Act comprises the Australian government’s response to Recommendation 5.1 of the Report of the Royal Commission into National Natural Disaster Arrangements (Royal Commission), which called on the government to make legislative provision for a declaration of a state of national emergency, with three 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.
1.10
The Australian government supported and welcomed this recommendation, foreshadowing:
The Commonwealth will subsequently work with states and territories to examine actions that the Commonwealth could take to complement actions by the States and Territories once a Commonwealth declaration has been made.
1.11
The committee understands that in 2020 the Australian government was consulting with the states and territories in relation to the operation of the NED Act.
1.12
Home Affairs, PM&C and the NEMA have now advised that ‘Home Affairs is currently reviewing the operation of the NED Act, building on consultation with states and territories’ and, in conjunction with the NEMA, is taking steps to improve implementation of the NED framework.
1.13
Based on this information, the committee understands that federal/state consultations have concluded. However, it is not clear what outcomes were achieved and how governments intend to implement those outcomes.
Statutory reviews
1.14
The NED Act requires the Legal and Constitutional Affairs Committee to review the Act and each NED made thereunder within specific timeframes:
a review of the operation of the Act must be commenced immediately after enactment and on the fifth anniversary of commencement (16 December 2020 and 16 December 2025, respectively); and
a review of each NED must be commenced by the first anniversary of the date on which the declaration was made.
1.15
The committee conducted the first operational review and reported its findings to the Senate on 30 June 2021, including concerns about the potential scope of key terms, such as ‘emergency’ (not defined in the Act), ‘Commonwealth interests’ and ‘nationally significant harm’.
1.16
The committee also stated that, in reviewing a NED, issues raised during the first operational review would be further considered, including:
the nature of the emergency and the circumstances which led to the declaration being made;
the temporal proportionality of the length of the declaration; and
the scope and proportionality of any ministerial determinations made pursuant to it.
2022 New South Wales and Queensland flood events (February – March)
1.17
From 22 February 2022 to 7 March 2022, New South Wales (NSW) and Queensland experienced widespread and heavy to intense rainfall that culminated in significant flood events in northern NSW (the Northern Rivers region) and south-eastern Queensland.
1.18
Home Affairs, PM&C and the NEMA described the flood events as ‘the most severe in Australia’s history’. Millions of Australians were impacted by the flooding, including through the loss of 21 lives, 22 200 requests for assistance and 2046 flood rescues in NSW alone.
1.19
The flood events also caused significant damage to critical infrastructure and essential services (including rail, roads, power and telecommunications), commercial and residential property, the agricultural sector and numerous critical supply chains. Home Affairs, PM&C and the NEMA summarised these impacts, as follows:
The destruction and devastation that occurred in flood affected communities was well beyond previous experience and followed previous bushfires, floods and COVID-19. These significant, compounding and concurrent events placed a severe mental and physical toll on individuals in these communities.
1.20
The Australian Red Cross, which provided face-to-face support to more than 19 000 people impacted by the NSW floods, echoing the finding of the Royal Commission, added that ‘with a changing climate, disasters are becoming more severe and more frequent, with intensifying consequences for lives, wellbeing and livelihoods’.
1.21
Throughout the flood events, the Australian government provided a range of financial and non-financial assistance to complement the states’ response and recovery efforts. These supports are detailed in the joint submission to the review from Home Affairs, PM&C and the NEMA.
The NSW Floods Declaration
1.22
On 9 March, the Prime Minister visited the Northern Rivers region and announced his intention to recommend that the Governor-General make a NED in respect of the severe weather and flooding events in NSW and Queensland:
[A] national emergency declaration…[would] ensure all our emergency powers are available and that we cut through any red tape that might be faced. That's the principal purpose of that declaration, and that declaration requires me to consult both with the New South Wales Premier and the Queensland Premier. I've spoken to the New South Wales Premier today…I’m meeting with the Queensland Premier tomorrow…and all of that being in train, I intend to meet with the Governor-General on Friday in Canberra to be able to complete those formalities.
1.23
On 10 March 2022, Emergency Management Australia (now the NEMA), in consultation with the Australian Government Crisis and Recovery Committee (AGCRC), advised the Prime Minister that the destruction and devastation that had occurred in the flood affected communities was well beyond previous experience, and that the cumulative and compounding flooding events met the threshold for a NED.
1.24
On 11 March 2022, the Prime Minister requested and the Governor-General made a NED in response to the widespread flooding that was impacting significant areas of northern NSW. This was the first time that a NED had been made under the NED Act.
1.25
The NSW Floods Declaration appears to satisfy the technical requirements for a NED, as set out in subsection 11(4) of the NED Act. These requirements are that a NED be in writing and specify three matters:
the emergency to which the declaration relates;
the nature of the emergency and the circumstances that gave rise to it; and
the period for which the declaration is in force.
Stakeholder concerns
1.26
As noted above (paragraphs 1.15–1.16), during the first operational review stakeholders identified concerns with the NED framework. The following sections of this report discuss some of those concerns.
Potential scope of key legislative terms
1.27
The NED Act does not necessarily require state and territory governments to agree to the making of a NED. The Act provides for those governments to request, in writing, the making of a declaration and provides three additional circumstances in which that is not necessary:
(ii) because of the emergency, it is not practicable for a request to be made [in writing by the state and territory governments];
(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[.]
1.28
During the NSW and Queensland flood events of February-March 2022, neither the NSW Government nor the Queensland Government made a written request to the Prime Minister for the making of a NED. News media reported that the two premiers did not consider a declaration necessary when the matter was first discussed with the Prime Minister.
1.29
The Queensland Premier made it clear that the time for a NED to be made had passed, with Queensland having already managed the emergency response:
The time for that national emergency was probably a week ago, so we've actually gone past that. The floodwaters have gone down...Queensland has very good disaster management arrangements in place, unfortunately we've seen a lot of national disasters, so we actually respond very quickly…We've actually used our own state specific disaster declarations and they've provided us with all the necessary powers that we need, especially when it means like closing roads or closing schools or relocating people.
1.30
In the circumstances, the NSW Floods Declaration had to be grounded on at least one of the three circumstances identified in subparagraphs 11(1)(c)(ii)‑(iv), and more generally section 11, of the NED Act.
1.31
Stakeholders previously expressed concern regarding the breadth of key terms within those provisions. The NSW Government, for example, queried the undefined term ‘Commonwealth interests’, which it considered is ‘particularly broad’, and also the defined term ‘nationally significant harm’: ‘interpretations could differ as to when the scale or consequence of a particular emergency might have a significant national impact’.
1.32
The Attorney-General’s Department (AGD), Home Affairs and PM&C have acknowledged the importance of the term ‘nationally significant harm’ and attempted to clarify its meaning:
The framework centres on the definition of ‘nationally significant harm’, which is harm that has a significant national impact because of its scale or consequences. Applying this high standard ensures a declaration is made only in exceptional circumstances. Harm is defined to encapsulate the varied ways in which an emergency event may affect the life, health and livelihoods of individuals. In addition, this principle recognises that the concept of national significance is not confined to geographical impact.
1.33
Noting the situation described above (paragraphs 1.17-1.21), the committee agrees that the NSW flood event and its ongoing effects, compounded by the Queensland and subsequent flood events in northern NSW, met the threshold for ‘nationally significant harm’.
1.34
However, given the broad and at times undefined key terms within the NED Act, the committee suggests that the Australian government takes extra care to identify the Commonwealth interest or national harm occasioned by an emergency, before the Prime Minister proceeds to recommend the making of a NED.
1.35
The committee notes that it has encouraged the Australian government to consider views raised during the first operational review, especially in relation to the need to clearly define key terms in the NED Act:
A clear, shared understanding of [these] terms…will help to ensure that emergency management frameworks across the federation operate in unison during emergency events.
Comment on federal/state consultation
1.36
Based on the reported interactions between federal/state governments, the committee questions whether the NED framework operated as smoothly as is intended or necessary: effective coordination and cooperation is of critical importance during emergency management.
1.37
The committee notes that the NSW and Queensland Governments expeditiously referred their emergency management during the February‑March flood events to independent inquiries. Neither inquiry report mentions the NED Act or the NSW Floods Declaration, nor did either government make a submission to this review.
1.38
In their joint submission, Home Affairs, PM&C and the NEMA did not provide the committee with information regarding the Prime Minister’s consultations with the NSW and Queensland Governments. The lack of information makes it difficult for the committee to assess whether the NED framework could be improved in this regard.
Temporal proportionality
1.39
A NED must not be in force for longer than the Prime Minister considers necessary for the purposes of emergency management. This cannot be longer than three months, unless extended by the Governor-General as allowed under section 12 of the Act.
1.40
The NSW Floods Declaration expired after three months (10 June 2022). Home Affairs, PM&C and the NEMA submitted that, during this period, officials thrice reviewed the declaration to inform advice on whether it should be continued, adjusted, or deactivated:
At the final review on 27 May 2022, the AGCRC assessed it was appropriate to allow the Declaration to expire at the end of the three month period, based on the situation having transitioned to medium to longer term recovery.
1.41
At the first operational review, stakeholders raised concerns about the possible extension of NEDs beyond three months with limited oversight. In response, AGD, Home Affairs and PM&C submitted:
Each national emergency declaration is intended to be time-limited...It is intended that a declaration be revoked by the Governor-General [under section 14 of the NED Act] when the circumstances that gave rise to the declaration no longer exist.
1.42
The committee recognises that the NSW Floods Declaration complied with the time limitation set out in subsection 11(5) of the NED Act. It could be argued that the declaration should have been revoked earlier (on 27 May 2022), which might be a pressing concern in different circumstances. The committee recognises that the Australian government regularly reviewed the need for the declaration and that it was not extended beyond what was deemed necessary.
Scope and proportionality of ministerial determinations
1.43
The NED Act allows responsible ministers, by legislative instrument, to make determinations that vary, suspend or substitute certain provisions in other Commonwealth laws (subsection 15(2) of the Act). Ministerial determinations cease to be in force at the start of the day on which the relevant NED expires.
1.44
The Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee for the Scrutiny of Delegated Legislation previously voiced concern about this provision, which enables the primary legislation to be modified by legislative instrument(s) (a Henry VIII clause).
1.45
In response, AGD, Home Affairs and PM&C explained that the ministerial determination power relates strictly to procedural ‘red tape’ requirements:
This power will allow Ministers to tailor their response to an emergency by suspending, varying and substituting regulatory requirements, depending on the particular emergency. This power will also ensure government services are accessible in circumstances where usual regulatory requirements are obstructive or challenging.
1.46
For the NSW Floods Declaration, Home Affairs, PM&C and the NEMA advised that PM&C sought advice from certain government departments in relation to the need to exercise the ministerial determination power:
On 23 March 2022, the then Secretary of PM&C wrote to Secretaries of Departments responsible for administering national emergency laws, requesting that they consider whether affected areas of New South Wales would benefit from suspension, variation or modification of any administrative requirements under any laws that [were] administered by their Department, and/or whether relevant powers under national emergency laws should be exercised to assist in the flood response and recovery.
1.47
Home Affairs, PM&C and the NEMA advised that the emergency powers listed as a ‘national emergency law’ in section 10 of the NED Act were not exercised when the NSW Flood Declaration was in force. However, their joint submission did not provide further information on the exercise of the ministerial determination power, nor did that submission clarify whether other departments needed to be, or were, consulted in relation to that power.
1.48
Bearing in mind that concerns about oversight were discussed in the first operational review, the committee encourages the Australian government to be more forthcoming about the exercise of statutory powers under the NED Act in any future reviews of NEDs made under the Act.
Committee view
1.49
On balance, the committee considers that the NSW Floods Declaration was made in accordance with the requirements of the NED Act. However, this review has identified a few matters that should receive more attention in future, particularly as regards the provision of information to the committee.
1.50
The committee reflects on the circumstances that gave rise to the NED Act and the concerns expressed during the first operational review. The committee reiterates the importance of parliamentary oversight and executive accountability for decisions made under the Act. In this regard, the committee draws the Senate’s attention to the legislative amendments recommended by Labor Senators at the first operational review.
1.51
The committee recommends that any changes to the National Emergency Declaration Act 2020 consider the findings of the two operational reviews conducted by the Senate to date.
1.52
The committee recommends that the Senate takes note of this report.