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Law Council of Australia


Security Legislation Amendment (Critical Infrastructure) Bill 2020

29 October 2021

The House of Representatives has passed the Security Legislation Amendment (Critical Infrastructure) Bill 2020 with extensive amendments, which implement bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) that endorsed the majority of the Law Council’s submissions to its inquiry.

This Bill proposes to expand the scope and substance of regulatory obligations on the private owners and operators of critical infrastructure assets under the Security of Critical Infrastructure Act 2018 (Cth). In addition, it proposes to confer an extraordinary power of government intervention in responses to cyber security incidents affecting critical infrastructure assets, under which the Minister for Home Affairs can authorise the Secretary of the Department of Home Affairs and the Australian Signals Directorate to undertake intervention.

The Government accepted the PJCIS’s primary recommendation that the Bill should be split into two, so that only the limited measures the PJCIS identified as urgent could be progressed immediately (principally the proposed governmental intervention powers in cyber security incident responses). The Government also accepted the PJCIS’s further recommendation that the remaining measures (the expansion of the regulatory regime to further sectors, and the expansion of applicable obligations) could be re-worked over a longer period of time to further consider the extensive concerns raised by key submitters, including the Law Council and regulated sectors. The PJCIS recommended that the second Bill should be referred to it for further inquiry.

The amendments to the Bill moved in the House of Representatives also implemented several recommendations of the Law Council in its submissions and oral evidence to the PJCIS inquiry, which were directed to matters of procedural fairness, clarity of definitions of key terms, and secrecy provisions.

Despite these improvements, however, several issues remain outstanding. The anticipated further PJCIS review of a second Bill (when introduced) will provide an opportunity for the Law Council to engage in further advocacy on these matters, which include the need for an independent authorisation process for governmental intervention powers, and immunities for the personnel of regulated entities in relation to acts done in compliance with obligations under the expanded regulatory regime.

Given the urgency identified by the Government and PJCIS in relation to the proposed governmental intervention powers, it is anticipated that the Bill will be introduced and debated in the Senate in the remaining days of the 2021 Parliamentary sitting year. The intended timing for the introduction of the second Bill has not been announced. The Law Council will continue to participate actively in all consultative processes on these measures.