Last Resort Power and Critical Asset Register Proposed In Draft Infrastructure Security Bill

Wednesday 11 October 2017 @ 1.37 p.m. | Corporate & Regulatory | Legal Research

Attorney-General George Brandis has released a draft version of the Security of Critical Infrastructure Bill 2017 (Cth), which proposes two new measures to “help manage the complex and evolving national security risks from foreign involvement in Australia’s critical infrastructure”.  The draft Bill would create a “last resort power” to allow a ministerial direction to be issued to an owner or operator of a critical infrastructure asset and a “critical asset register” to allow the Government to track the ownership and control of these assets.

In a media release announcing the draft bill, the Attorney-General said:

“Foreign involvement in Australia’s critical infrastructure is essential to Australia’s economy.

However with increased foreign involvement, through ownership, offshoring, outsourcing and supply chain arrangements, Australia’s national critical infrastructure is more exposed than ever to sabotage, espionage and coercion…

The Government thanks critical infrastructure owners and operators and state and territory governments for their ongoing constructive engagement on these important issues.”

According to an Explanatory Document released with the Bill, the Bill would cover around 100 assets deemed to be “critical infrastructure assets”, including ports, electricity and water.

The Consultation

The Government will accept public submissions on the Bill until 10 November 2017.  According to the consultation website, the Government will also be consulting further with state and territory officials and industry stakeholders during October 2017.

The release of the draft bill follows the release of a discussion paper, Strengthening the National Security of Australia’s Critical Infrastructure, that was released by the Critical Infrastructure Centre in February 2017.  The Centre also conducted consultations with state and territory governments and other stakeholders.

The Last Resort Power

According to the Explanatory Document, the so-called “Last Resort Power” would enable the responsible Minister to issue a direction where:

  • there is a significant national security risk
  • through collaboration, the reporting entity or operator does not implement mitigations to address the risk, and
  • there are no existing regulatory frameworks that can be used to enforce mitigations.

The Critical Asset Register

Two sets of entities, direct interest holders and responsible entities, will be required under the proposed Bill to report information to the Register of Critical Infrastructure Assets.  The Explanatory Document says:

“Direct interest holders of a critical infrastructure asset will be required to provide interest and control information in respect of the asset. Responsible entities for a critical infrastructure asset (effectively the main licensed body) will be required to provide operational information, such as system access abilities and operator and outsourcing arrangements.

These entities will have six months to report the required information from the commencement of the legislation. Following initial reporting, the entities will then be obligated to notify the Commonwealth Government of any changes to this information within 30 days of the event. The Centre will maintain a secure web portal for entities to easily report information.”

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