Greater scrutiny of emergency powers needed

The Australian Human Rights Commission has called for greater accountability to be embedded in laws that extend the Commonwealth’s power in the event of national emergencies.

In its submission to a Senate inquiry examining the National Emergency Declaration Act 2020, the Commission recommended five changes to legislation that was enacted by parliament last year.

Human Rights Commissioner Edward Santow said the laws, which empower the Australian Government to act quickly and unilaterally during national emergencies, must include appropriate checks and balances.

“The COVID-19 pandemic has opened the door to a creeping authoritarianism in some other countries. We must ensure our own government is accountable in using special powers during a national emergency,” Commissioner Santow said.

“Emergency powers can limit human rights, such as freedom of movement, in order to address an immediate health or other crisis. There needs to be effective scrutiny when government and Ministers use such powers. Any emergency restriction on human rights should remain in place for the minimum time necessary to address the crisis.”

The Act aims to clarify and consolidate the Commonwealth’s emergency powers and establish a framework by which the Governor-General, on the advice of the Prime Minister, may declare a national emergency and trigger the Commonwealth’s ability to exercise emergency powers.

The Commission’s submission to the Senate Legal and Constitutional Affairs Legislation Committee inquiry recommended five changes to the Act, including:

  1. Amendments to limit the number of times a national emergency declaration may be extended, and to require immediate review if it is extended more than once.
  2. Inserting a definition for the terms ’emergency’ and ‘Commonwealth interests’ to make clear when a national emergency may be declared or extended.
  3. Amending section 15 of the Act so that ministerial power to dispense with administrative requirements in Commonwealth legislation is conditional on Parliament not being able to sit within a suitable period of time and is proportionate to the need created by the emergency.
  4. Whenever a national emergency is declared, a special parliamentary committee should be formed to examine how emergency powers are exercised under the Act.
  5. Removing the ability for Ministers to make ‘non-disallowable instruments’, so that Parliament can scrutinise the exercise of the Minister’s powers in the usual way.

You can read the Commission’s submission on the National Emergency Declaration Act 2020 on our website: https://humanrights.gov.au/our-work/legal/submission/review-national-emergency-declaration-act-2020-cth

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