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Part 7—Miscellaneous

Part 7 Miscellaneous

Division 1 Simplified outline of this Part

53   Simplified outline of this Part

This Act applies to partnerships, trusts, superannuation funds and unincorporated foreign companies (amongst other entities), but with some modifications.

The Secretary has certain powers and obligations under this Part, including the power to undertake an assessment of a critical infrastructure asset to determine if there is a risk to national security relating to the asset.

The Secretary must give the Minister a report each financial year for presentation to the Parliament. The report relates to the operation of this Act.

This Part also deals with miscellaneous matters, such as delegations and rules.

Division 2 Treatment of certain entities

53A   How certain entities hold interests

                   For the purposes of this Act, a trust, partnership, superannuation fund or unincorporated foreign company (as the case requires) is taken to hold an interest in an asset or entity if:

                     (a)  one or more trustees hold the interest on behalf of the beneficiaries of the trust; or

                     (b)  one or more partners hold the interest on behalf of the partnership; or

                     (c)  one or more trustees hold the interest on behalf of the beneficiaries of the superannuation fund; or

                     (d)  one or more appointed officers hold the interest on behalf of the company.

Note:          For the definition of appointed officer , see section 5.

54   Treatment of partnerships

             (1)  This Act applies to a partnership as if it were an entity, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the partnership by this Act is imposed on each partner instead, but may be discharged by any of the partners.

             (3)  An offence against this Act that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

             (4)  This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

             (5)  For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.

55   Treatment of trusts and superannuation funds that are trusts

             (1)  This Act applies to a trust or a superannuation fund that is a trust as if it were an entity, but with the changes set out in this section.

Trusts or superannuation funds with a single trustee

             (2)  If the trust or superannuation fund has a single trustee:

                     (a)  an obligation that would otherwise be imposed on the trust or superannuation fund by this Act is imposed on the trustee instead; and

                     (b)  an offence against this Act that would otherwise have been committed by the trust or superannuation fund is taken to have been committed by the trustee.

Trusts or superannuation funds with multiple trustees

             (3)  If the trust or superannuation fund has 2 or more trustees:

                     (a)  an obligation that would otherwise be imposed on the trust or superannuation fund by this Act is imposed on each trustee instead, but may be discharged by any of the trustees; and

                     (b)  an offence against this Act that would otherwise have been committed by the trust or superannuation fund is taken to have been committed by each trustee of the trust or superannuation fund, at the time the offence was committed, who:

                              (i)  did the relevant act or made the relevant omission; or

                             (ii)  aided, abetted, counselled or procured the relevant act or omission; or

                            (iii)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).

Contraventions of civil penalty provisions

             (4)  This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

56   Treatment of unincorporated foreign companies

             (1)  This Act applies to an unincorporated foreign company as if it were an entity, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the unincorporated foreign company by this Act is imposed on each appointed officer for the company instead, but may be discharged by any of the appointed officers.

Note:          For the definition of appointed officer , see section 5.

             (3)  An offence against this Act that would otherwise have been committed by the unincorporated foreign company is taken to have been committed by each appointed officer for the company, at the time the offence was committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the appointed officer).

             (4)  This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

Division 3 Matters relating to Secretary’s powers

57   Additional power of Secretary

                   Without limiting any other provision of this Act, the Secretary may undertake an assessment of a critical infrastructure asset to determine if there is a risk to national security relating to the asset.

58   Assets ceasing to be critical infrastructure assets

                   The Secretary must, in writing, notify the reporting entity for an asset if the Secretary becomes aware that the asset has ceased to be a critical infrastructure asset.

59   Delegation of Secretary’s powers

             (1)  The Secretary may, by written instrument, delegate to an SES employee, or an acting SES employee, in the Department any of the Secretary’s powers, functions or duties under this Act.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 .

             (2)  In exercising powers, performing functions or discharging duties under a delegation, the delegate must comply with any written direction given by the Secretary to the delegate.

Division 4 Periodic reports, reviews and rules

60   Periodic report

             (1)  The Secretary must give the Minister, for presentation to the Parliament, a report on the operation of this Act for a financial year.

             (2)  Without limiting subsection (1), the report must deal with:

                     (a)  the number of notifications that were made during the financial year to the Secretary under Division 3 of Part 2 (obligation to give information and notify of events); and

                     (b)  any directions given during the financial year by the Minister under section 32 (direction if risk of act or omission that would be prejudicial to security); and

                     (c)  the use during the financial year of the Secretary’s powers under Division 2 of Part 4 (Secretary’s power to obtain information or documents); and

                     (d)  any action taken during the financial year against an entity under the Regulatory Powers Act as a result of Part 5 (enforcement) of this Act; and

                     (e)  the number of declarations of assets as critical infrastructure assets that were made during the financial year by the Minister under section 51.

             (3)  A report under subsection (1) must not include personal information (within the meaning of the Privacy Act 1988 ).

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about periodic reports.

60A   Review of this Act

             (1)  The Parliamentary Joint Committee on Intelligence and Security must:

                     (a)  review the operation, effectiveness and implications of this Act; and

                     (b)  without limiting paragraph (a), consider whether it would be appropriate to have a unified scheme that covers all infrastructure assets (including telecommunication assets) that are critical to:

                              (i)  the social or economic stability of Australia or its people; or

                             (ii)  the defence of Australia; or

                            (iii)  national security; and

                     (c)  review the circumstances in which any declarations have been made under Part 6 of this Act (declarations of assets by the Minister); and

                     (d)  report the Committee’s comments and recommendations to each House of the Parliament.

             (2)  The Committee must begin the review before the end of 3 years after this Act receives the Royal Assent.

61   Rules

             (1)  The Minister may, by legislative instrument, makes rules prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.