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Schedule 1—Security of critical infrastructure

Schedule 1 Security of critical infrastructure

Part 1 General amendments

Administrative Decisions (Judicial Review) Act 1977

1  Before paragraph (da) of Schedule 1

Insert:

                  (dae)  decisions under Part 3A of the Security of Critical Infrastructure Act 2018 ;

AusCheck Act 2007

2  Subsection 4(1)

Insert:

critical infrastructure risk management program has the same meaning as in the Security of Critical Infrastructure Act 2018 .

3  After paragraph 8(1)(b)

Insert:

                   (ba)  critical infrastructure risk management programs are required, by rules made under the Security of Critical Infrastructure Act 2018 , to include provisions that require background checks of individuals to be conducted under the AusCheck scheme; or

Security of Critical Infrastructure Act 2018

4  Section 3

Omit “to national security”.

5  At the end of section 3

Add:

             ; and (c)  requiring responsible entities for critical infrastructure assets to identify and manage risks relating to those assets; and

                     (d)  imposing enhanced cyber security obligations on relevant entities for systems of national significance in order to improve their preparedness for, and ability to respond to, cyber security incidents; and

                     (e)  providing a regime for the Commonwealth to respond to serious cyber security incidents.

6  Section 4

Repeal the section, substitute:

4   Simplified outline of this Act

This Act creates a framework for managing risks relating to critical infrastructure.

The framework consists of the following:

       (a)     the keeping of a register of information in relation to critical infrastructure assets (the register will not be made public);

      (b)     requiring the responsible entity for one or more critical infrastructure assets to have, and comply with, a critical infrastructure risk management program;

       (c)     requiring notification of cyber security incidents;

      (d)     imposing enhanced cyber security obligations that relate to systems of national significance;

       (e)     requiring certain entities relating to a critical infrastructure asset to provide information in relation to the asset, and to notify if certain events occur in relation to the asset;

       (f)     allowing the Minister to require certain entities relating to a critical infrastructure asset to do, or refrain from doing, an act or thing if the Minister is satisfied that there is a risk of an act or omission that would be prejudicial to security;

       (g)     allowing the Secretary to require certain entities relating to a critical infrastructure asset to provide certain information or documents;

      (h)     setting up a regime for the Commonwealth to respond to serious cyber security incidents;

       (i)     allowing the Secretary to undertake an assessment of a critical infrastructure asset to determine if there is a risk to national security relating to the asset.

Certain information obtained or generated under, or relating to the operation of, this Act is protected information. There are restrictions on when a person may make a record of, use or disclose protected information.

Civil penalty provisions of this Act may be enforced using civil penalty orders, injunctions or infringement notices, and enforceable undertakings may be accepted in relation to compliance with civil penalty provisions. The Regulatory Powers Act is applied for these purposes. Certain provisions of this Act are subject to monitoring and investigation under the Regulatory Powers Act. Certain provisions of this Act may be enforced by imposing a criminal penalty.

The Minister may privately declare an asset to be a critical infrastructure asset.

The Minister may privately declare a critical infrastructure asset to be a system of national significance.

The Secretary must give the Minister reports, for presentation to the Parliament, on the operation of this Act.

7  Section 5

Insert:

access , in relation to a computer program, means the execution of the computer program.

access to computer data means:

                     (a)  in a case where the computer data is held in a computer—the display of the data by the computer or any other output of the data from the computer; or

                     (b)  in a case where the computer data is held in a computer—the copying or moving of the data to:

                              (i)  any other location in the computer; or

                             (ii)  another computer; or

                            (iii)  a data storage device; or

                     (c)  in a case where the computer data is held in a data storage device—the copying or moving of the data to:

                              (i)  a computer; or

                             (ii)  another data storage device.

aircraft operator has the same meaning as in the Aviation Transport Security Act 2004 .

airport has the same meaning as in the Aviation Transport Security Act 2004 .

airport operator has the same meaning as in the Aviation Transport Security Act 2004 .

air service has the same meaning as in the Aviation Transport Security Act 2004 .

approved staff member of the authorised agency has the meaning given by section 35BJ.

ASD means the Australian Signals Directorate.

asset includes:

                     (a)  a system; and

                     (b)  a network; and

                     (c)  a facility; and

                     (d)  a computer; and

                     (e)  a computer device; and

                      (f)  a computer program; and

                     (g)  computer data; and

                     (h)  premises; and

                      (i)  any other thing.

associated entity has the same meaning as in the Corporations Act 2001 .

associated transmission facility means:

                     (a)  an antenna; or

                     (b)  a combiner; or

                     (c)  a feeder system; or

                     (d)  an apparatus; or

                     (e)  an item of equipment; or

                      (f)  a structure; or

                     (g)  a line; or

                     (h)  an electricity cable or wire;

that is associated with a radiocommunications transmitter.

AusCheck scheme has the same meaning as in the AusCheck Act 2007 .

Australia , when used in a geographical sense, includes the external Territories.

Australian CS facility licence has the same meaning as in Chapter 7 of the Corporations Act 2001 .

Australian derivative trade repository licence has the same meaning as in Chapter 7 of the Corporations Act 2001 .

Australian market licence has the same meaning as in Chapter 7 of the Corporations Act 2001 .

authorised agency means ASD.

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 .

background check has the same meaning as in the AusCheck Act 2007 .

banking business has the same meaning as in the Banking Act 1959 .

benchmark administrator licence has the same meaning as in the Corporations Act 2001 .

broadcasting re-transmission asset means:

                     (a)  a radiocommunications transmitter; or

                     (b)  a broadcasting transmission tower; or

                     (c)  an associated transmission facility;

that is used in connection with the transmission of a service to which, as a result of section 212 of the Broadcasting Services Act 1992 , the regulatory regime established by that Act does not apply.

broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

broadcasting transmission asset means:

                     (a)  a radiocommunications transmitter; or

                     (b)  a broadcasting transmission tower; or

                     (c)  an associated transmission facility;

that is used, or is capable of being used, in connection with the transmission of:

                     (d)  a national broadcasting service; or

                     (e)  a commercial radio broadcasting service; or

                      (f)  a commercial television broadcasting service.

broadcasting transmission tower has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

business critical data means:

                     (a)  personal information (within the meaning of the Privacy Act 1988 ) that relates to at least 20,000 individuals; or

                     (b)  information relating to any research and development in relation to a critical infrastructure asset; or

                     (c)  information relating to any systems needed to operate a critical infrastructure asset; or

                     (d)  information needed to operate a critical infrastructure asset; or

                     (e)  information relating to risk management and business continuity (however described) in relation to a critical infrastructure asset.

carriage service has the same meaning as in the Telecommunications Act 1997.

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

chief executive of the authorised agency means the Director-General of ASD.

clearing and settlement facility has the same meaning as in Chapter 7 of the Corporations Act 2001 .

commercial radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

commercial television broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

communications sector means the sector of the Australian economy that involves:

                     (a)  supplying a carriage service; or

                     (b)  providing a broadcasting service; or

                     (c)  owning or operating assets that are used in connection with the supply of a carriage service; or

                     (d)  owning or operating assets that are used in connection with the transmission of a broadcasting service; or

                     (e)  administering an Australian domain name system.

computer means all or part of:

                     (a)  one or more computers; or

                     (b)  one or more computer systems; or

                     (c)  one or more computer networks; or

                     (d)  any combination of the above.

computer data means data held in:

                     (a)  a computer; or

                     (b)  a data storage device.

computer device means a device connected to a computer.

connected includes connection otherwise than by means of physical contact, for example, a connection by means of radiocommunication.

constable has the same meaning as in the Crimes Act 1914 .

credit facility has the meaning given by regulations made for the purposes of paragraph 12BAA(7)(k) of the Australian Securities and Investments Commission Act 2001 .

credit facility business means a business that offers, or provides services in relation to, a credit facility.

critical aviation asset means:

                     (a)  an asset that:

                              (i)  is used in connection with the provision of an air service; and

                             (ii)  is owned or operated by an aircraft operator; or

                     (b)  an asset that:

                              (i)  is used in connection with the provision of an air service; and

                             (ii)  is owned or operated by a regulated air cargo agent; or

                     (c)  an asset that is used by an airport operator in connection with the operation of an airport.

Note:          The rules may prescribe that a specified critical aviation asset is not a critical infrastructure asset (see section 9).

critical banking asset has the meaning given by section 12G.

Note:          The rules may prescribe that a specified critical banking asset is not a critical infrastructure asset (see section 9).

critical broadcasting asset has the meaning given by section 12E.

Note:          The rules may prescribe that a specified critical broadcasting asset is not a critical infrastructure asset (see section 9).

critical data storage or processing asset has the meaning given by section 12F.

Note:          The rules may prescribe that a specified critical data storage or processing asset is not a critical infrastructure asset (see section 9).

critical defence capability includes:

                     (a)  materiel; and

                     (b)  technology; and

                     (c)  a platform; and

                     (d)  a network; and

                     (e)  a system; and

                      (f)  a service;

that is required in connection with:

                     (g)  the defence of Australia; or

                     (h)  national security.

critical defence industry asset means an asset that:

                     (a)  is being, or will be, supplied by an entity to the Defence Department, or the Australian Defence Force, under a contract; and

                     (b)  consists of, or enables, a critical defence capability.

Note:          The rules may prescribe that a specified critical defence industry asset is not a critical infrastructure asset (see section 9).

critical domain name system has the meaning given by section 12KA.

Note:          The rules may prescribe that a specified critical domain name system is not a critical infrastructure asset (see section 9).

critical education asset means a university that is owned or operated by an entity that is registered in the Australian university category of the National Register of Higher Education Providers.

Note:          The rules may prescribe that a specified critical education asset is not a critical infrastructure asset (see section 9).

critical energy market operator asset means an asset that:

                     (a)  is owned or operated by:

                              (i)  Australian Energy Market Operator Limited (ACN 072 010 327); or

                             (ii)  Power and Water Corporation; or

                            (iii)  Regional Power Corporation; or

                            (iv)  Electricity Networks Corporation; and

                     (b)  is used in connection with the operation of an energy market or system; and

                     (c)  is critical to ensuring the security and reliability of an energy market;

but does not include:

                     (d)  a critical electricity asset; or

                     (e)  a critical gas asset; or

                      (f)  a critical liquid fuel asset.

Note:          The rules may prescribe that a specified critical energy market operator asset is not a critical infrastructure asset (see section 9).

critical financial market infrastructure asset has the meaning given by section 12D.

Note:          The rules may prescribe that a specified critical financial market infrastructure asset is not a critical infrastructure asset (see section 9).

critical food and grocery asset has the meaning given by section 12K.

Note:          The rules may prescribe that a specified critical food and grocery asset is not a critical infrastructure asset (see section 9).

critical freight infrastructure asset has the meaning given by section 12B.

Note:          The rules may prescribe that a specified critical freight infrastructure asset is not a critical infrastructure asset (see section 9).

critical freight services asset has the meaning given by section 12C.

Note:          The rules may prescribe that a specified critical freight services asset is not a critical infrastructure asset (see section 9).

critical hospital means a hospital that has a general intensive care unit.

Note:          The rules may prescribe that a specified critical hospital is not a critical infrastructure asset (see section 9).

critical infrastructure risk management program has the meaning given by section 30AH.

critical infrastructure sector has the meaning given by section 8D.

critical infrastructure sector asset has the meaning given by subsection 8E(1).

critical insurance asset has the meaning given by section 12H.

Note:          The rules may prescribe that a specified critical insurance asset is not a critical infrastructure asset (see section 9).

critical liquid fuel asset has the meaning given by section 12A.

Note:          The rules may prescribe that a specified critical liquid fuel asset is not a critical infrastructure asset (see section 9).

critical public transport asset means a public transport network or system that:

                     (a)  is managed by a single entity; and

                     (b)  is capable of handling at least 5 million passenger journeys per month;

but does not include a critical aviation asset.

Note:          The rules may prescribe that a specified critical public transport asset is not a critical infrastructure asset (see section 9).

critical superannuation asset has the meaning given by section 12J.

Note:          The rules may prescribe that a specified critical superannuation asset is not a critical infrastructure asset (see section 9).

critical telecommunications asset means:

                     (a)  a telecommunications network that is:

                              (i)  owned or operated by a carrier; and

                             (ii)  used to supply a carriage service; or

                     (b)  a telecommunications network, or any other asset, that is:

                              (i)  owned or operated by a carriage service provider; and

                             (ii)  used in connection with the supply of a carriage service.

Note:          The rules may prescribe that a specified critical telecommunications asset is not a critical infrastructure asset (see section 9).

cyber security exercise has the meaning given by section 30CN.

cyber security incident has the meaning given by section 12M.

data includes information in any form.

data storage means data storage that involves information technology, and includes data back-up.

data storage device means a thing (for example, a disk or file server) containing (whether temporarily or permanently), or designed to contain (whether temporarily or permanently), data for use by a computer.

data storage or processing provider means an entity that provides a data storage or processing service.

data storage or processing sector means the sector of the Australian economy that involves providing data storage or processing services.

data storage or processing service means:

                     (a)  a service that enables end-users to store or back-up data; or

                     (b)  a data processing service.

Defence Department means the Department of State that deals with defence and that is administered by the Defence Minister.

defence industry sector means the sector of the Australian economy that involves the provision of critical defence capabilities.

Defence Minister means the Minister administering section 1 of the Defence Act 1903 .

derivative trade repository has the same meaning as in Chapter 7 of the Corporations Act 2001 .

designated officer has the meaning given by section 30DQ.

Electricity Networks Corporation means the Electricity Networks Corporation established by section 4 of the Electricity Corporations Act 2005 (WA).

electronic communication means a communication of information in any form by means of guided or unguided electromagnetic energy.

energy sector means the sector of the Australian economy that involves:

                     (a)  the production, transmission, distribution or supply of electricity; or

                     (b)  the production, processing, transmission, distribution or supply of gas; or

                     (c)  the production, processing, transmission, distribution or supply of liquid fuel.

engage in conduct means:

                     (a)  do an act or thing; or

                     (b)  omit to perform an act or thing.

evaluation report has the meaning given by section 30CS.

external auditor means a person authorised under section 30CT to be an external auditor for the purposes of this Act.

financial benchmark has the same meaning as in Part 7.5B of the Corporations Act 2001 .

financial market has the same meaning as in Chapter 7 of the Corporations Act 2001 .

financial services and markets sector means the sector of the Australian economy that involves:

                     (a)  carrying on banking business; or

                     (b)  operating a superannuation fund; or

                     (c)  carrying on insurance business; or

                     (d)  carrying on life insurance business; or

                     (e)  carrying on health insurance business; or

                      (f)  operating a financial market; or

                     (g)  operating a clearing and settlement facility;

                     (h)  operating a derivative trade repository; or

                      (i)  administering a financial benchmark; or

                      (j)  operating a payment system; or

                     (k)  carrying on financial services business; or

                      (l)  carrying on credit facility business.

financial services business has the same meaning as in Chapter 7 of the Corporations Act 2001 .

food means food for human consumption.

food and grocery sector means the sector of the Australian economy that involves:

                     (a)  manufacturing; or

                     (b)  processing; or

                     (c)  packaging; or

                     (d)  distributing; or

                     (e)  supplying;

food or groceries on a commercial basis.

gas means a substance that:

                     (a)  is in a gaseous state at standard temperature and pressure; and

                     (b)  consists of naturally occurring hydrocarbons, or a naturally occurring mixture of hydrocarbons and non-hydrocarbons, the principal constituent of which is methane; and

                     (c)  is suitable for consumption.

general intensive care unit means an area within a hospital that:

                     (a)  is equipped and staffed so that it is capable of providing to a patient:

                              (i)  mechanical ventilation for a period of several days; and

                             (ii)  invasive cardiovascular monitoring; and

                     (b)  is supported by:

                              (i)  during normal working hours—at least one specialist, or consultant physician, in the specialty of intensive care, who is immediately available, and exclusively rostered, to that area; and

                             (ii)  at all times—at least one medical practitioner who is present in the hospital and immediately available to that area; and

                            (iii)  at least 18 hours each day—at least one nurse; and

                     (c)  has admission and discharge policies in operation.

government business enterprise has the same meaning as in the Public Governance, Performance and Accountability Act 2013 .

health care includes:

                     (a)  services provided by individuals who practise in any of the following professions or occupations:

                              (i)  dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);

                             (ii)  medical;

                            (iii)  medical radiation practice;

                            (iv)  nursing;

                             (v)  midwifery;

                            (vi)  occupational therapy;

                           (vii)  optometry;

                          (viii)  pharmacy;

                            (ix)  physiotherapy;

                             (x)  podiatry;

                            (xi)  psychology;

                           (xii)  a profession or occupation specified in the rules; and

                     (b)  treatment and maintenance as a patient at a hospital.

health care and medical sector means the sector of the Australian economy that involves:

                     (a)  the provision of health care; or

                     (b)  the production, distribution or supply of medical supplies.

health insurance business has the same meaning as in the Private Health Insurance Act 2007 .

higher education and research sector means the sector of the Australian economy that involves:

                     (a)  being a higher education provider; or

                     (b)  undertaking a program of research that:

                              (i)  is supported financially (in whole or in part) by the Commonwealth; or

                             (ii)  is relevant to a critical infrastructure sector (other than the higher education and research sector).

higher education provider has the same meaning as in the Tertiary Education Quality and Standards Agency Act 2011 .

hospital has the same meaning as in the Private Health Insurance Act 2007 .

IGIS official means:

                     (a)  the Inspector-General of Intelligence and Security; or

                     (b)  any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986 .

impairment of electronic communication to or from a computer includes:

                     (a)  the prevention of any such communication; and

                     (b)  the impairment of any such communication on an electronic link or network used by the computer;

but does not include a mere interception of any such communication.

incident response plan has the meaning given by section 30CJ.

inland waters means waters within Australia other than waters of the sea.

insurance business has the same meaning as in the Insurance Act 1973 .

internet carriage service means a listed carriage service that enables end-users to access the internet.

life insurance business has the same meaning as in the Life Insurance Act 1995 .

liquid fuel has the same meaning as in the Liquid Fuel Emergency Act 1984 .

listed carriage service has the same meaning as in the Telecommunications Act 1997 .

local hospital network has the same meaning as in the National Health Reform Act 2011.

managed service provider , in relation to an asset, means an entity that:

                     (a)  manages:

                              (i)  the asset; or

                             (ii)  a part of the asset; or

                     (b)  manages an aspect of:

                              (i)  the asset; or

                             (ii)  a part of the asset; or

                     (c)  manages an aspect of the operation of:

                              (i)  the asset; or

                             (ii)  a part of the asset.

medical supplies includes:

                     (a)  goods for therapeutic use; and

                     (b)  things specified in the rules.

Ministerial authorisation means an authorisation under section 35AB.

modification :

                     (a)  in respect of computer data—means:

                              (i)  the alteration or removal of the data; or

                             (ii)  an addition to the data; or

                     (b)  in respect of a computer program—means:

                              (i)  the alteration or removal of the program; or

                             (ii)  an addition to the program.

national broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

National Register of Higher Education Providers means the register established and maintained under section 198 of the Tertiary Education Quality and Standards Agency Act 2011 .

notification provision means:

                     (a)  subsection 35AE(3); or

                     (b)  subsection 35AE(4); or

                     (c)  subsection 35AE(5); or

                     (d)  subsection 35AE(6); or

                     (e)  subsection 35AE(7); or

                      (f)  subsection 35AE(8); or

                     (g)  subsection 35AH(5); or

                     (h)  subsection 35AH(6); or

                      (i)  subsection 35AH(7); or

                      (j)  subsection 35AY(3); or

                     (k)  subsection 35AY(4); or

                      (l)  subsection 35AY(5); or

                    (m)  subsection 35AY(6); or

                     (n)  subsection 35AY(7); or

                     (o)  subsection 35AY(8); or

                     (p)  subsection 51(3); or

                     (q)  subsection 52(4); or

                      (r)  subsection 52B(3); or

                      (s)  subsection 52D(4).

Ombudsman official means:

                     (a)  the Ombudsman; or

                     (b)  a Deputy Commonwealth Ombudsman; or

                     (c)  a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976 .

8  Section 5 (paragraph (b) of the definition of operator )

Repeal the paragraph, substitute:

                     (b)  for a critical infrastructure asset other than a critical port—an entity that operates the asset or part of the asset.

9  Section 5

Insert:

payment system has the same meaning as in the Payment Systems (Regulation) Act 1998 .

10  Section 5

Insert:

Power and Water Corporation means the Power and Water Corporation established by section 4 of the Power and Water Corporation Act 1987 (NT).

11  Section 5 (after paragraph (b) of the definition of protected information )

            Insert:

                   (ba)  records or is the fact that an asset is declared under section 52B to be a system of national significance; or

                   (bb)  records or is the fact that the Minister has:

                              (i)  given a Ministerial authorisation; or

                             (ii)  revoked a Ministerial authorisation; or

                   (bc)  is, or is included in, a critical infrastructure risk management program that is adopted by an entity in compliance with section 30AC; or

                   (bd)  is, or is included in, a report that is given under section 30AG; or

                   (be)  is, or is included in, a report under section 30BC or 30BD; or

                    (bf)  is, or is included in, an incident response plan adopted by an entity in compliance with section 30CD; or

                   (bg)  is, or is included in, an evaluation report prepared under section 30CQ or 30CR; or

                   (bh)  is, or is included in, a vulnerability assessment report prepared under section 30CZ; or

                    (bi)  is, or is included in, a report prepared in compliance with:

                              (i)  a system information periodic reporting notice; or

                             (ii)  a system information event-based reporting notice; or

                    (bj)  records or is the fact that the Secretary has:

                              (i)  given a direction under section 35AK; or

                             (ii)  revoked such a direction; or

                   (bk)  records or is the fact that the Secretary has:

                              (i)  given a direction under section 35AQ; or

                             (ii)  revoked such a direction; or

                    (bl)  records or is the fact that the Secretary has:

                              (i)  given a request under section 35AX; or

                             (ii)  revoked such a request; or

12  Section 5 (paragraph (c) of the definition of protected information )

Omit “or (b)”, substitute “, (b), (ba), (bb), (bc), (bd), (be), (bf), (bg), (bh), (bi), (bj), (bk) or (bl)”.

13  Section 5

Insert:

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992 .

regional centre means a city, or a town that has a population of 10,000 or more people.

Regional Power Corporation means the Regional Power Corporation established by section 4 of the Electricity Corporations Act 2005 (WA).

registrable superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .

regulated air cargo agent has the same meaning as in the Aviation Transport Security Act 2004 .

related body corporate has the same meaning as in the Corporations Act 2001 .

relevant Commonwealth regulator means:

                     (a)  a Department that is specified in the rules; or

                     (b)  a body that is:

                              (i)  established by a law of the Commonwealth; and

                             (ii)  specified in the rules.

relevant entity , in relation to an asset, means an entity that:

                     (a)  is the responsible entity for the asset; or

                     (b)  is a direct interest holder in relation to the asset; or

                     (c)  is an operator of the asset; or

                     (d)  is a managed service provider for the asset.

relevant impact has the meaning given by section 8G.

14  Section 5 (definition of relevant industry )

Repeal the definition.

15  Section 5 (definition of responsible entity )

Repeal the definition, substitute:

responsible entity , for an asset, has the meaning given by section 12L.

16  Section 5 (paragraph (a) of the definition of security )

Omit “10 and 12”, substitute “the definition of critical energy market operator asset and sections 10, 12, 12A, 12D, 12G, 12H, 12J, 12M, 12N, 30AG, 30CB, 30CM, 30CR, 30CU and 30CW”.

17  Section 5 (paragraph (b) of the definition of security )

Omit “10 and 12”, substitute “the definition of critical energy market operator asset and sections 10, 12, 12A, 12D, 12G, 12H, 12J, 12M, 12N, 30AG, 30CB, 30CM, 30CR, 30CU and 30CW”.

18  Section 5

Insert:

significant financial benchmark has the same meaning as in the Corporations Act 2001 .

space technology sector means the sector of the Australian economy that involves the commercial provision of space-related services.

Note:          The following are examples of space-related services:

(a)    position, navigation and timing services in relation to space objects;

(b)    space situational awareness services;

(c)    space weather monitoring and forecasting;

(d)    communications, tracking, telemetry and control in relation to space objects;

(e)    remote sensing earth observations from space;

(f)    facilitating access to space.

staff member , in relation to the authorised agency, means a staff member of ASD (within the meaning of the Intelligence Services Act 2001 ).

system information event-based reporting notice means a notice under subsection 30DC(2).

system information periodic reporting notice means a notice under subsection 30DB(2).

system information software notice means a notice under subsection 30DJ(2).

system of national significance has the meaning given by section 52B.

technical assistance notice has the same meaning as in Part 15 of the Telecommunications Act 1997 .

technical assistance request has the same meaning as in Part 15 of the Telecommunications Act 1997 .

technical capability notice has the same meaning as in Part 15 of the Telecommunications Act 1997 .

telecommunications network has the same meaning as in the Telecommunications Act 1997.

therapeutic use has the same meaning as in the Therapeutic Goods Act 1989 .

transport sector means the sector of the Australian economy that involves:

                     (a)  owning or operating assets that are used in connection with the transport of goods or passengers on a commercial basis; or

                     (b)  the transport of goods or passengers on a commercial basis.

unauthorised access, modification or impairment has the meaning given by section 12N.

vulnerability assessment has the meaning given by section 30CY.

vulnerability assessment report has the meaning given by section 30DA.

water and sewerage sector means the sector of the Australian economy that involves:

                     (a)  operating water or sewerage systems or networks; or

                     (b)  manufacturing or supplying goods, or providing services, for use in connection with the operation of water or sewerage systems or networks.

19  Section 5 (definition of water utility )

After “water services”, insert “or sewerage services, or both”.

20  At the end of section 6

Add:

Interest and control information provided by the Commonwealth

             (5)  If the first entity:

                     (a)  is the Governor-General, the Prime Minister or a Minister; and

                     (b)  is a direct interest holder in relation to an asset because of paragraph 8(1)(b);

the first entity is not required to provide any interest and control information.

Note:          The expression Minister is defined in section 2B of the Acts Interpretation Act 1901 .

             (6)  However, subsection (5) does not affect the obligation of the Commonwealth to provide interest and control information in relation to the asset if the Commonwealth is also a direct interest holder in relation to the asset because of paragraph 8(1)(a) or (b).

21  After section 8C

Insert:

8D   Meaning of critical infrastructure sector

                   Each of the following sectors of the Australian economy is a critical infrastructure sector :

                     (a)  the communications sector;

                     (b)  the data storage or processing sector;

                     (c)  the financial services and markets sector;

                     (d)  the water and sewerage sector;

                     (e)  the energy sector;

                      (f)  the health care and medical sector;

                     (g)  the higher education and research sector;

                     (h)  the food and grocery sector;

                      (i)  the transport sector;

                      (j)  the space technology sector;

                     (k)  the defence industry sector.

8E   Meaning of critical infrastructure sector asset

             (1)  An asset is a critical infrastructure sector asset if it is an asset that relates to a critical infrastructure sector.

Deeming—when asset relates to a sector

             (2)  For the purposes of this Act, each of the following assets is taken to relate to the communications sector:

                     (a)  a critical telecommunications asset;

                     (b)  a critical broadcasting asset;

                     (c)  a critical domain name system.

             (3)  For the purposes of this Act, a critical data storage or processing asset is taken to relate to the data storage or processing sector.

             (4)  For the purposes of this Act, each of the following assets is taken to relate to the financial services and markets sector:

                     (a)  a critical banking asset;

                     (b)  a critical superannuation asset;

                     (c)  a critical insurance asset;

                     (d)  a critical financial market infrastructure asset.

             (5)  For the purposes of this Act, a critical water asset is taken to relate to the water and sewerage sector.

             (6)  For the purposes of this Act, each of the following assets is taken to relate to the energy sector:

                     (a)  a critical electricity asset;

                     (b)  a critical gas asset;

                     (c)  a critical energy market operator asset;

                     (d)  a critical liquid fuel asset.

             (7)  For the purposes of this Act, a critical hospital is taken to relate to the health care and medical sector.

             (8)  For the purposes of this Act, a critical education asset is taken to relate to the higher education and research sector.

             (9)  For the purposes of this Act, a critical food and grocery asset is taken to relate to the food and grocery sector.

           (10)  For the purposes of this Act, each of the following assets is taken to relate to the transport sector:

                     (a)  a critical port;

                     (b)  a critical freight infrastructure asset;

                     (c)  a critical freight services asset;

                     (d)  a critical public transport asset;

                     (e)  a critical aviation asset.

           (11)  For the purposes of this Act, a critical defence industry asset is taken to relate to the defence industry sector.

8F   Critical infrastructure sector for a critical infrastructure asset

                   For the purposes of this Act, the critical infrastructure sector for a critical infrastructure asset is the critical infrastructure sector to which the asset relates.

8G   Meaning of relevant impact

             (1)  Each of the following is a relevant impact of a hazard on a critical infrastructure asset:

                     (a)  the impact (whether direct or indirect) of the hazard on the availability of the asset;

                     (b)  the impact (whether direct or indirect) of the hazard on the integrity of the asset;

                     (c)  the impact (whether direct or indirect) of the hazard on the reliability of the asset;

                     (d)  the impact (whether direct or indirect) of the hazard on the confidentiality of:

                              (i)  information about the asset; or

                             (ii)  if information is stored in the asset—the information; or

                            (iii)  if the asset is computer data—the computer data.

             (2)  Each of the following is a relevant impact of a cyber security incident on a critical infrastructure asset:

                     (a)  the impact (whether direct or indirect) of the incident on the availability of the asset;

                     (b)  the impact (whether direct or indirect) of the incident on the integrity of the asset;

                     (c)  the impact (whether direct or indirect) of the incident on the reliability of the asset;

                     (d)  the impact (whether direct or indirect) of the incident on the confidentiality of:

                              (i)  information about the asset; or

                             (ii)  if information is stored in the asset—the information; or

                            (iii)  if the asset is computer data—the computer data.

             (3)  Each of the following is a relevant impact of a cyber security incident on a system of national significance:

                     (a)  the impact (whether direct or indirect) of the incident on the availability of the system;

                     (b)  the impact (whether direct or indirect) of the incident on the integrity of the system;

                     (c)  the impact (whether direct or indirect) of the incident on the reliability of the system;

                     (d)  the impact (whether direct or indirect) of the incident on the confidentiality of:

                              (i)  information about the system; or

                             (ii)  if information is stored in the system—the information; or

                            (iii)  if the system is computer data—the computer data.

22  Paragraphs 9(1)(a), (b), (c) and (d)

Repeal the paragraphs, substitute:

                     (a)  a critical telecommunications asset; or

                     (b)  a critical broadcasting asset; or

                     (c)  a critical domain name system; or

                     (d)  a critical data storage or processing asset; or

                   (da)  a critical banking asset; or

                   (db)  a critical superannuation asset; or

                   (dc)  a critical insurance asset; or

                   (dd)  a critical financial market infrastructure asset; or

                   (de)  a critical water asset; or

                    (df)  a critical electricity asset; or

                   (dg)  a critical gas asset; or

                   (dh)  a critical energy market operator asset; or

                    (di)  a critical liquid fuel asset; or

                    (dj)  a critical hospital; or

                   (dk)  a critical education asset; or

                    (dl)  a critical food and grocery asset; or

                  (dm)  a critical port; or

                   (dn)  a critical freight infrastructure asset; or

                   (do)  a critical freight services asset; or

                   (dp)  a critical public transport asset; or

                   (dq)  a critical aviation asset; or

                    (dr)  a critical defence industry asset; or

23  At the end of subsection 9(1)

Add:

Note:          For prescription by class, see subsection 13(3) of the Legislation Act 2003 .

24  Paragraphs 9(2)(a), (b), (c) and (d)

Repeal the paragraphs, substitute:

                     (a)  a critical telecommunications asset; or

                     (b)  a critical broadcasting asset; or

                     (c)  a critical domain name system; or

                     (d)  a critical data storage or processing asset; or

                     (e)  a critical banking asset; or

                      (f)  a critical superannuation asset; or

                     (g)  a critical insurance asset; or

                     (h)  a critical financial market infrastructure asset; or

                      (i)  a critical water asset; or

                      (j)  a critical electricity asset; or

                     (k)  a critical gas asset; or

                      (l)  a critical energy market operator asset; or

                    (m)  a critical liquid fuel asset; or

                     (n)  a critical hospital; or

                     (o)  a critical education asset; or

                     (p)  a critical food and grocery asset; or

                     (q)  a critical port; or

                      (r)  a critical freight infrastructure asset; or

                      (s)  a critical freight services asset; or

                      (t)  a critical public transport asset; or

                     (u)  a critical aviation asset; or

                     (v)  a critical defence industry asset;

25  At the end of subsection 9(2)

Add:

Note:          For prescription by class, see subsection 13(3) of the Legislation Act 2003 .

26  After subsection 9(2)

Insert:

          (2A)  If an asset is owned by:

                     (a)  the Commonwealth; or

                     (b)  a body corporate established by a law of the Commonwealth (other than a government business enterprise);

the asset is not a critical infrastructure asset unless:

                     (c)  the asset is declared under section 51 to be a critical infrastructure asset; or

                     (d)  the asset is prescribed by the rules for the purposes of paragraph (1)(f).

          (2B)  An asset is not a critical infrastructure asset if, or to the extent to which, the asset is located outside Australia.

27  Paragraph 9(3)(b)

Repeal the paragraph, substitute:

                     (b)  the asset relates to a critical infrastructure sector.

28  Subparagraph 9(4)(a)(i)

Before “located”, insert “wholly or partly”.

29  Subparagraph 9(4)(a)(ii)

Omit “industry for the asset”, substitute “critical infrastructure sector”.

30  Paragraph 10(1)(a)

After “customers”, insert “or any other number of customers prescribed by the rules”.

31  Paragraph 12(1)(b)

Repeal the paragraph, substitute:

                     (b)  a gas storage facility that has a maximum daily withdrawal capacity of at least 75 terajoules per day or any other maximum daily withdrawal capacity prescribed by the rules;

32  After section 12

Insert:

12A   Meaning of critical liquid fuel asset

             (1)  An asset is a critical liquid fuel asset if it is any of the following:

                     (a)  a liquid fuel refinery that is critical to ensuring the security and reliability of a liquid fuel market, in accordance with subsection (2);

                     (b)  a liquid fuel pipeline that is critical to ensuring the security and reliability of a liquid fuel market, in accordance with subsection (3);

                     (c)  a liquid fuel storage facility that is critical to ensuring the security and reliability of a liquid fuel market, in accordance with subsection (4).

Note:          The rules may prescribe that a specified critical liquid fuel asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraph (1)(a), the rules may prescribe:

                     (a)  specified liquid fuel refineries that are critical to ensuring the security and reliability of a liquid fuel market; or

                     (b)  requirements for a liquid fuel refinery to be critical to ensuring the security and reliability of a liquid fuel market.

             (3)  For the purposes of paragraph (1)(b), the rules may prescribe:

                     (a)  specified liquid fuel pipelines that are critical to ensuring the security and reliability of a liquid fuel market; or

                     (b)  requirements for a liquid fuel pipeline to be critical to ensuring the security and reliability of a liquid fuel market.

             (4)  For the purposes of paragraph (1)(c), the rules may prescribe:

                     (a)  specified liquid fuel storage facilities that are critical to ensuring the security and reliability of a liquid fuel market; or

                     (b)  requirements for a liquid fuel storage facility to be critical to ensuring the security and reliability of a liquid fuel market.

12B   Meaning of critical freight infrastructure asset

             (1)  An asset is a critical freight infrastructure asset if it is any of the following:

                     (a)  a road network that, in accordance with subsection (2), functions as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres;

                     (b)  a rail network that, in accordance with subsection (3), functions as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres;

                     (c)  an intermodal transfer facility that, in accordance with subsection (4), is critical to the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres.

Note:          The rules may prescribe that a specified critical freight infrastructure asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraph (1)(a), the rules may prescribe:

                     (a)  specified road networks that function as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres; or

                     (b)  requirements for a road network to function as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres.

             (3)  For the purposes of paragraph (1)(b), the rules may prescribe:

                     (a)  specified rail networks that function as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres; or

                     (b)  requirements for a rail network to function as a critical corridor for the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres.

             (4)  For the purposes of paragraph (1)(c), the rules may prescribe:

                     (a)  specified intermodal transfer facilities that are critical to the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres; or

                     (b)  requirements for an intermodal transfer facility to be critical to the transportation of goods between:

                              (i)  2 States; or

                             (ii)  a State and a Territory; or

                            (iii)  2 Territories; or

                            (iv)  2 regional centres.

             (5)  For the purposes of this section, road network includes a part of a road network.

             (6)  For the purposes of this section, rail network includes a part of a rail network.

12C   Meaning of critical freight services asset

             (1)  An asset is a critical freight services asset if it is a network that is used by an entity carrying on a business that, in accordance with subsection (2), is critical to the transportation of goods by any or all of the following:

                     (a)  road;

                     (b)  rail;

                     (c)  inland waters;

                     (d)  sea.

Note:          The rules may prescribe that a specified critical freight services asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of subsection (1), the rules may prescribe:

                     (a)  specified businesses that are critical to the transportation of goods by any or all of the following:

                              (i)  road;

                             (ii)  rail;

                            (iii)  inland waters;

                            (iv)  sea; or

                     (b)  requirements for a business to be critical to the transportation of goods by any or all of the following:

                              (i)  road;

                             (ii)  rail;

                            (iii)  inland waters;

                            (iv)  sea.

12D   Meaning of critical financial market infrastructure asset

             (1)  An asset is a critical financial market infrastructure asset if it is any of the following assets:

                     (a)  an asset that:

                              (i)  is owned or operated by an Australian body corporate that holds an Australian market licence; and

                             (ii)  is used in connection with the operation of a financial market that, in accordance with subsection (2), is critical to the security and reliability of the financial services and markets sector;

                     (b)  an asset that:

                              (i)  is owned or operated by an associated entity of an Australian body corporate that holds an Australian market licence; and

                             (ii)  is used in connection with the operation of a financial market that, in accordance with subsection (2), is critical to the security and reliability of the financial services and markets sector;

                     (c)  an asset that:

                              (i)  is owned or operated by an Australian body corporate that holds an Australian CS facility licence; and

                             (ii)  is used in connection with the operation of a clearing and settlement facility that, in accordance with subsection (3), is critical to the security and reliability of the financial services and markets sector;

                     (d)  an asset that:

                              (i)  is owned or operated by an associated entity of an Australian body corporate that holds an Australian CS facility licence; and

                             (ii)  is used in connection with the operation of a clearing and settlement facility that, in accordance with subsection (3), is critical to the security and reliability of the financial services and markets sector;

                     (e)  an asset that:

                              (i)  is owned or operated by an Australian body corporate that holds a benchmark administrator licence; and

                             (ii)  is used in connection with the administration of a significant financial benchmark that, in accordance with subsection (4), is critical to the security and reliability of the financial services and markets sector;

                      (f)  an asset that:

                              (i)  is owned or operated by an associated entity of an Australian body corporate that holds a benchmark administrator licence; and

                             (ii)  is used in connection with the administration of a significant financial benchmark that, in accordance with subsection (4), is critical to the security and reliability of the financial services and markets sector;

                     (g)  an asset that:

                              (i)  is owned or operated by an Australian body corporate that holds an Australian derivative trade repository licence; and

                             (ii)  is used in connection with the operation of a derivative trade repository that, in accordance with subsection (5), is critical to the security and reliability of the financial services and markets sector;

                     (h)  an asset that:

                              (i)  is owned or operated by an associated entity of an Australian body corporate that holds an Australian derivative trade repository licence; and

                             (ii)  is used in connection with the operation of a derivative trade repository that, in accordance with subsection (5), is critical to the security and reliability of the financial services and markets sector;

                      (i)  an asset that is used in connection with the operation of a payment system that, in accordance with subsection (6), is critical to the security and reliability of the financial services and markets sector.

Note:          The rules may prescribe that a specified critical financial market infrastructure asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraphs (1)(a) and (b), the rules may prescribe:

                     (a)  specified financial markets that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a financial market to be critical to the security and reliability of the financial services and markets sector.

             (3)  For the purposes of paragraphs (1)(c) and (d), the rules may prescribe:

                     (a)  specified clearing and settlement facilities that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a clearing and settlement facility to be critical to the security and reliability of the financial services and markets sector.

             (4)  For the purposes of paragraphs (1)(e) and (f), the rules may prescribe:

                     (a)  specified significant financial benchmarks that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a significant financial benchmark to be critical to the security and reliability of the financial services and markets sector.

             (5)  For the purposes of paragraphs (1)(g) and (h), the rules may prescribe:

                     (a)  specified derivative trade repositories that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a derivative trade repository to be critical to the security and reliability of the financial services and markets sector.

             (6)  For the purposes of paragraph (1)(i), the rules may prescribe:

                     (a)  specified payment systems that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a payment system to be critical to the security and reliability of the financial services and markets sector.

             (7)  For the purposes of this section, Australian body corporate means a body corporate that is incorporated in Australia.

12E   Meaning of critical broadcasting asset

             (1)  One or more broadcasting transmission assets are a critical broadcasting asset if:

                     (a)  the broadcasting transmission assets are:

                              (i)  owned or operated by the same entity; and

                             (ii)  located on a site that, in accordance with subsection (2), is a critical transmission site; or

                     (b)  the broadcasting transmission assets are:

                              (i)  owned or operated by the same entity; and

                             (ii)  located on at least 50 different sites; and

                            (iii)  not broadcasting re-transmission assets; or

                     (c)  the broadcasting transmission assets are owned or operated by an entity that, in accordance with subsection (3), is critical to the transmission of a broadcasting service.

Note:          The rules may prescribe that a specified critical broadcasting asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraph (1)(a), the rules may prescribe:

                     (a)  specified sites that are critical transmission sites; or

                     (b)  requirements for sites to be critical transmission sites.

             (3)  For the purposes of paragraph (1)(c), the rules may prescribe:

                     (a)  specified entities that are critical to the transmission of a broadcasting service; or

                     (b)  requirements for an entity to be critical to the transmission of a broadcasting service.

12F   Meaning of critical data storage or processing asset

             (1)  An asset is a critical data storage or processing asset if:

                     (a)  it is owned or operated by an entity that is a data storage or processing provider; and

                     (b)  it is used wholly or primarily to provide a data storage or processing service that is provided by the entity on a commercial basis to an end-user that is:

                              (i)  the Commonwealth; or

                             (ii)  a body corporate established by a law of the Commonwealth; or

                            (iii)  a State; or

                            (iv)  a body corporate established by a law of a State; or

                             (v)  a Territory; or

                            (vi)  a body corporate established by a law of a Territory; and

                     (c)  the entity knows that the asset is used as described in paragraph (b).

Note:          The rules may prescribe that a specified critical data storage or processing asset is not a critical infrastructure asset (see section 9).

             (2)  An asset is a critical data storage or processing asset if:

                     (a)  it is owned or operated by an entity that is a data storage or processing provider; and

                     (b)  it is used wholly or primarily to provide a data storage or processing service that:

                              (i)  is provided by the entity on a commercial basis to an end-user that is the responsible entity for a critical infrastructure asset; and

                             (ii)  relates to business critical data; and

                     (c)  the entity knows that the asset is used as described in paragraph (b).

Note:          The rules may prescribe that a specified critical data storage or processing asset is not a critical infrastructure asset (see section 9).

             (3)  If:

                     (a)  an entity (the first entity ) is the responsible entity for a critical infrastructure asset; and

                     (b)  the first entity becomes aware that a data storage or processing service:

                              (i)  is provided by another entity on a commercial basis to the first entity; and

                             (ii)  relates to business critical data;

the first entity must:

                     (c)  take reasonable steps to inform that other entity that the first entity has become aware that the data storage or processing service:

                              (i)  is provided by the other entity on a commercial basis to the first entity; and

                             (ii)  relates to business critical data; and

                     (d)  do so as soon as practicable after becoming so aware.

Civil penalty for contravention of this subsection:           50 penalty units.

12G   Meaning of critical banking asset

             (1)  An asset is a critical banking asset if it is any of the following assets:

                     (a)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by an authorised deposit-taking institution;

                             (ii)  the authorised deposit-taking institution is an authorised deposit-taking institution that, in accordance with subsection (2), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of banking business;

                     (b)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by a body corporate that is a related body corporate of an authorised deposit-taking institution;

                             (ii)  the body corporate is a body corporate that, in accordance with subsection (3), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of banking business.

Note:          The rules may prescribe that a specified critical banking asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of subparagraph (1)(a)(ii), the rules may prescribe:

                     (a)  specified authorised deposit-taking institutions that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for an authorised deposit-taking institution to be critical to the security and reliability of the financial services and markets sector.

             (3)  For the purposes of subparagraph (1)(b)(ii), the rules may prescribe:

                     (a)  specified bodies corporate that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a body corporate to be critical to the security and reliability of the financial services and markets sector.

12H   Meaning of critical insurance asset

             (1)  An asset is a critical insurance asset if it is any of the following assets:

                     (a)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by an entity that carries on insurance business;

                             (ii)  the entity is an entity that, in accordance with subsection (2), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of insurance business;

                     (b)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by a body corporate that is a related body corporate of an entity that carries on insurance business;

                             (ii)  the body corporate is a body corporate that, in accordance with subsection (3), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of insurance business;

                     (c)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by an entity that carries on life insurance business;

                             (ii)  the entity is an entity that, in accordance with subsection (4), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of life insurance business;

                     (d)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by a body corporate that is a related body corporate of an entity that carries on life insurance business;

                             (ii)  the body corporate is a body corporate that, in accordance with subsection (5), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of life insurance business;

                     (e)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by an entity that carries on health insurance business;

                             (ii)  the entity is an entity that, in accordance with subsection (6), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of health insurance business;

                      (f)  an asset where the following conditions are satisfied:

                              (i)  the asset is owned or operated by a body corporate that is a related body corporate of an entity that carries on health insurance business;

                             (ii)  the body corporate is a body corporate that, in accordance with subsection (7), is critical to the security and reliability of the financial services and markets sector;

                            (iii)  the asset is used in connection with the carrying on of health insurance business.

Note:          The rules may prescribe that a specified critical insurance asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of subparagraph (1)(a)(ii), the rules may prescribe:

                     (a)  specified entities that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for an entity to be critical to the security and reliability of the financial services and markets sector.

             (3)  For the purposes of subparagraph (1)(b)(ii), the rules may prescribe:

                     (a)  specified bodies corporate that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a body corporate to be critical to the security and reliability of the financial services and markets sector.

             (4)  For the purposes of subparagraph (1)(c)(ii), the rules may prescribe:

                     (a)  specified entities that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for an entity to be critical to the security and reliability of the financial services and markets sector.

             (5)  For the purposes of subparagraph (1)(d)(ii), the rules may prescribe:

                     (a)  specified bodies corporate that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a body corporate to be critical to the security and reliability of the financial services and markets sector.

             (6)  For the purposes of subparagraph (1)(e)(ii), the rules may prescribe:

                     (a)  specified entities that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for an entity to be critical to the security and reliability of the financial services and markets sector.

             (7)  For the purposes of subparagraph (1)(f)(ii), the rules may prescribe:

                     (a)  specified bodies corporate that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a body corporate to be critical to the security and reliability of the financial services and markets sector.

12J   Meaning of critical superannuation asset

             (1)  An asset is a critical superannuation asset if:

                     (a)  it is owned or operated by a registrable superannuation entity that, in accordance with subsection (2), is critical to the security and reliability of the financial services and markets sector; and

                     (b)  it is used in connection with the operation of a superannuation fund.

Note:          The rules may prescribe that a specified critical superannuation asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraph (1)(a), the rules may prescribe:

                     (a)  specified registrable superannuation entities that are critical to the security and reliability of the financial services and markets sector; or

                     (b)  requirements for a registrable superannuation entity to be critical to the security and reliability of the financial services and markets sector.

12K   Meaning of critical food and grocery asset

             (1)  An asset is a critical food and grocery asset if it is a network that:

                     (a)  is used for the distribution or supply of:

                              (i)  food; or

                             (ii)  groceries; and

                     (b)  is owned or operated by an entity that is:

                              (i)  a critical supermarket retailer, in accordance with subsection (2); or

                             (ii)  a critical food wholesaler, in accordance with subsection (3); or

                            (iii)  a critical grocery wholesaler, in accordance with subsection (4).

Note:          The rules may prescribe that a specified critical food and grocery asset is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of subparagraph (1)(b)(i), the rules may prescribe:

                     (a)  specified entities that are critical supermarket retailers; or

                     (b)  requirements for an entity to be a critical supermarket retailer.

             (3)  For the purposes of subparagraph (1)(b)(ii), the rules may prescribe:

                     (a)  specified entities that are critical food wholesalers; or

                     (b)  requirements for an entity to be a critical food wholesaler.

             (4)  For the purposes of subparagraph (1)(b)(iii), the rules may prescribe:

                     (a)  specified entities that are critical grocery wholesalers; or

                     (b)  requirements for an entity to be a critical grocery wholesaler.

12KA   Meaning of critical domain name system

             (1)  An asset is a critical domain name system if it:

                     (a)  is managed by an entity that, in accordance with subsection (2), is critical to the administration of an Australian domain name system; and

                     (b)  is used in connection with the administration of an Australian domain name system.

Note:          The rules may prescribe that a specified critical domain name system is not a critical infrastructure asset (see section 9).

             (2)  For the purposes of paragraph (1)(a), the rules may prescribe:

                     (a)  specified entities that are critical to the administration of an Australian domain name system; or

                     (b)  requirements for an entity to be critical to the administration of an Australian domain name system.

12L   Meaning of responsible entity

Critical telecommunications asset

             (1)  The responsible entity for a critical telecommunications asset is:

                     (a)  whichever of the following is applicable:

                              (i)  if the critical telecommunications asset is owned or operated by a carrier—the carrier;

                             (ii)  if the critical telecommunications asset is owned or operated by a carriage service provider—the carriage service provider; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical broadcasting asset

             (2)  The responsible entity for a critical broadcasting asset is:

                     (a)  the entity referred to in whichever of the following provisions is applicable:

                              (i)  subparagraph 12E(1)(a)(i);

                             (ii)  subparagraph 12E(1)(b)(i);

                            (iii)  paragraph 12E(1)(c); or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical domain name system

             (3)  The responsible entity for a critical domain name system is:

                     (a)  the entity referred to in paragraph 12KA(1)(a); or

                     (b)  if another entity is prescribed by the rules in relation to the system—that other entity.

Critical data storage or processing asset

             (4)  The responsible entity for a critical data storage or processing asset is:

                     (a)  if the asset is covered by subsection 12F(1)—the entity referred to in paragraph 12F(1)(a); or

                     (b)  if the asset is covered by subsection 12F(2)—the entity referred to in paragraph 12F(2)(a); or

                     (c)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical banking asset

             (5)  The responsible entity for a critical banking asset is:

                     (a)  if the asset is covered by paragraph 12G(1)(a)—the authorised deposit-taking institution referred to in subparagraph 12G(1)(a)(i); or

                     (b)  if the asset is covered by paragraph 12G(1)(b)—the body corporate referred to in subparagraph 12G(1)(b)(i); or

                     (c)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical superannuation asset

             (6)  The responsible entity for a critical superannuation asset is:

                     (a)  the registrable superannuation entity referred to in subsection 12J(1); or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical insurance asset

             (7)  The responsible entity for a critical insurance asset is:

                     (a)  if the asset is covered by paragraph 12H(1)(a)—the entity referred to in subparagraph 12H(1)(a)(i); or

                     (b)  if the asset is covered by paragraph 12H(1)(b)—the body corporate referred to in subparagraph 12H(1)(b)(i); or

                     (c)  if the asset is covered by paragraph 12H(1)(c)—the entity referred to in subparagraph 12H(1)(c)(i); or

                     (d)  if the asset is covered by paragraph 12H(1)(d)—the body corporate referred to in subparagraph 12H(1)(d)(i); or

                     (e)  if the asset is covered by paragraph 12H(1)(e)—the entity referred to in subparagraph 12H(1)(e)(i); or

                      (f)  if the asset is covered by paragraph 12H(1)(f)—the body corporate referred to in subparagraph 12H(1)(f)(i); or

                     (g)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical financial market infrastructure asset

             (8)  The responsible entity for a critical financial market infrastructure asset is:

                     (a)  if the asset is covered by paragraph 12D(1)(a)—the body corporate referred to in subparagraph 12D(1)(a)(i); or

                     (b)  if the asset is covered by paragraph 12D(1)(b)—the associated entity referred to in subparagraph 12D(1)(b)(i); or

                     (c)  if the asset is covered by paragraph 12D(1)(c)—the body corporate referred to in subparagraph 12D(1)(c)(i); or

                     (d)  if the asset is covered by paragraph 12D(1)(d)—the associated entity referred to in subparagraph 12D(1)(d)(i); or

                     (e)  if the asset is covered by paragraph 12D(1)(e)—the body corporate referred to in subparagraph 12D(1)(e)(i); or

                      (f)  if the asset is covered by paragraph 12D(1)(f)—the associated entity referred to in subparagraph 12D(1)(f)(i); or

                     (g)  if the asset is covered by paragraph 12D(1)(g)—the body corporate referred to in subparagraph 12D(1)(g)(i); or

                     (h)  if the asset is covered by paragraph 12D(1)(h)—the associated entity referred to in subparagraph 12D(1)(h)(i); or

                      (i)  if the asset is covered by paragraph 12D(1)(i)—the entity prescribed by the rules; or

                      (j)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical water asset

             (9)  The responsible entity for a critical water asset is:

                     (a)  the water utility that holds the licence, approval or authorisation (however described), under a law of the Commonwealth, a State or a Territory, to provide the service to be delivered by the asset; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical electricity asset

           (10)  The responsible entity for a critical electricity asset is:

                     (a)  the entity that holds the licence, approval or authorisation (however described) to operate the asset to provide the service to be delivered by the asset; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical gas asset

           (11)  The responsible entity for a critical gas asset is:

                     (a)  the entity that holds the licence, approval or authorisation (however described) to operate the asset to provide the service to be delivered by the asset; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical energy market operator asset

           (12)  The responsible entity for a critical energy market operator asset is:

                     (a)  if the asset is used by Australian Energy Market Operator Limited (ACN 072 010 327)—that company; or

                     (b)  if the asset is used by Power and Water Corporation—that corporation; or

                     (c)  if the asset is used by Regional Power Corporation—that corporation; or

                     (d)  if the asset is used by Electricity Networks Corporation—that corporation; or

                     (e)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical liquid fuel asset

           (13)  The responsible entity for a critical liquid fuel asset is:

                     (a)  if the asset is a liquid fuel refinery—the entity that operates the liquid fuel refinery; or

                     (b)  if the asset is a liquid fuel pipeline—the entity that operates the liquid fuel pipeline; or

                     (c)  if the asset is a liquid fuel storage facility—the entity that operates the liquid fuel storage facility; or

                     (d)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical hospital

           (14)  The responsible entity for a critical hospital is:

                     (a)  if the critical hospital is a public hospital—the local hospital network that operates the hospital; or

                     (b)  if the critical hospital is a private hospital—the entity that holds the licence, approval or authorisation (however described), under a law of a State or a Territory to operate the hospital; or

                     (c)  if another entity is prescribed by the rules in relation to the hospital—that other entity.

Critical education asset

           (15)  The responsible entity for a critical education asset is:

                     (a)  the entity referred to in the definition of critical education asset in section 5; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical food and grocery asset

           (16)  The responsible entity for a critical food and grocery asset is:

                     (a)  the entity referred to in paragraph 12K(1)(b); or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical port

           (17)  The responsible entity for a critical port is:

                     (a)  the port operator (within the meaning of the Maritime Transport and Offshore Facilities Security Act 2003 ) of the port; or

                     (b)  if another entity is prescribed by the rules in relation to the port—that other entity.

Critical freight infrastructure asset

           (18)  The responsible entity for a critical freight infrastructure asset is:

                     (a)  if the Commonwealth is responsible for the management of the asset—the Commonwealth; or

                     (b)  if a State is responsible for the management of the asset—the State; or

                     (c)  if a Territory is responsible for the management of the asset—the Territory; or

                     (d)  if a body is:

                              (i)  established by a law of the Commonwealth, a State or a Territory; and

                             (ii)  responsible for the management of the asset;

                            that body; or

                     (e)  if none of paragraphs (a), (b), (c), (d) and (e) apply—the entity prescribed by the rules in relation to the asset; or

                      (f)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical freight services asset

           (19)  The responsible entity for a critical freight services asset is:

                     (a)  the entity referred to in subsection 12C(1); or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical public transport asset

           (20)  The responsible entity for a critical public transport asset is:

                     (a)  the entity referred to in paragraph (a) of the definition of critical public transport asset in section 5; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical aviation asset

           (21)  The responsible entity for a critical aviation asset is:

                     (a)  if the asset is:

                              (i)  used in connection with the provision of an air service; and

                             (ii)  owned or operated by an aircraft operator;

                            the aircraft operator; or

                     (b)  if the asset is:

                              (i)  used in connection with the provision of an air service; and

                             (ii)  owned or operated by a regulated air cargo agent;

                            the regulated air cargo agent; or

                     (c)  if the asset is used by an airport operator in connection with the operation of an airport—the airport operator; or

                     (d)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Critical defence industry asset

           (22)  The responsible entity for a critical defence industry asset is:

                     (a)  the entity referred to in paragraph (a) of the definition of critical defence industry asset ; or

                     (b)  if another entity is prescribed by the rules in relation to the asset—that other entity.

Assets prescribed by the rules

           (23)  The responsible entity for an asset prescribed by the rules in relation to the asset for the purposes of paragraph 9(1)(f) is the entity specified in the rules.

Assets declared to be a critical infrastructure asset

           (24)  The responsible entity for an asset declared under section 51 to be a critical infrastructure asset is the entity specified in the declaration as the responsible entity for the asset (see subsection 51(2)).

System of national significance

           (25)  If a critical infrastructure asset is a system of national significance, the responsible entity for the system of national significance is the responsible entity for the asset.

12M  Meaning of cyber security incident

                   A cyber security incident is one or more acts, events or circumstances involving any of the following:

                     (a)  unauthorised access to:

                              (i)  computer data; or

                             (ii)  a computer program;

                     (b)  unauthorised modification of:

                              (i)  computer data; or

                             (ii)  a computer program;

                     (c)  unauthorised impairment of electronic communication to or from a computer;

                     (d)  unauthorised impairment of the availability, reliability, security or operation of:

                              (i)  a computer; or

                             (ii)  computer data; or

                            (iii)  a computer program.

12N   Meaning of unauthorised access, modification or impairment

             (1)  For the purposes of this Act:

                     (a)  access to:

                              (i)  computer data; or

                             (ii)  a computer program; or

                     (b)  modification of:

                              (i)  computer data; or

                             (ii)  a computer program; or

                     (c)  the impairment of electronic communication to or from a computer; or

                     (d)  the impairment of the availability, reliability, security or operation of:

                              (i)  a computer; or

                             (ii)  computer data; or

                            (iii)  a computer program;

by a person is unauthorised if the person is not entitled to cause that access, modification or impairment.

             (2)  For the purposes of subsection (1), it is immaterial whether the person can be identified.

             (3)  For the purposes of subsection (1), if:

                     (a)  a person causes any access, modification or impairment of a kind mentioned in that subsection; and

                     (b)  the person does so:

                              (i)  under a warrant issued under a law of the Commonwealth, a State or a Territory; or

                             (ii)  under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or

                            (iii)  under a tracking device authorisation given to the person under section 39 of the Surveillance Devices Act 2004 ; or

                            (iv)  in accordance with a technical assistance request; or

                             (v)  in compliance with a technical assistance notice; or

                            (vi)  in compliance with a technical capability notice;

the person is entitled to cause that access, modification or impairment.

12P   Examples of responding to a cyber security incident

                   The following are examples of responding to a cyber security incident:

                     (a)  if the incident is imminent—preventing the incident;

                     (b)  mitigating a relevant impact of the incident on:

                              (i)  a critical infrastructure asset; or

                             (ii)  a critical infrastructure sector asset;

                     (c)  if a critical infrastructure asset or a critical infrastructure sector asset has been, or is being, affected by the incident—restoring the functionality of the asset.

33  Paragraph 13(1)(b)

Omit “that is a reporting entity for,”, insert “, so far as the entity is the responsible entity for, a reporting entity for, a relevant entity for,”.

34  At the end of paragraph 13(1)(b)

Add:

                       or (iv)  used in the course of, or in relation to, banking to which paragraph 51(xiii) of the Constitution applies; or

                             (v)  used in the course of, or in relation to, insurance to which paragraph 51(xiv) of the Constitution applies; or

                            (vi)  used to supply a carriage service; or

                           (vii)  used in connection with the provision of a broadcasting service; or

                          (viii)  used to administer a domain name system;

35  Subsection 13(2)

Omit “also applies”, substitute “and section 60AA (acquisition of property) also apply”.

36  Division 1 of Part 2 (heading)

Omit “ Simplified outline of this Part ”, substitute “ Introduction ”.

37  At the end of section 18

Add:

Note:          See also section 18A (application of this Part).

38  At the end of Division 1 of Part 2

Add:

18A   Application of this Part

             (1)  This Part applies to a critical infrastructure asset if:

                     (a)  the asset is specified in the rules; or

                     (b)  both:

                              (i)  the asset is the subject of a declaration under section 51; and

                             (ii)  the declaration determines that this Part applies to the asset; or

                     (c)  immediately before the commencement of this section, the asset was a critical infrastructure asset (within the meaning of this Act as in force immediately before that commencement).

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  The rules may provide that, if an asset becomes a critical infrastructure asset, this Part does not apply to the asset during the period:

                     (a)  beginning when the asset became a critical infrastructure asset; and

                     (b)  ending at a time ascertained in accordance with the rules.

18AA   Consultation—rules

Scope

             (1)  This section applies to rules made for the purposes of section 18A.

Consultation

             (2)  Before making or amending the rules, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the draft rules or amendments; and

                             (ii)  inviting persons to make submissions to the Minister about the draft rules or amendments within 28 days after the notice is published; and

                     (b)  give a copy of the notice to each First Minister; and

                     (c)  consider any submissions received within the 28-day period mentioned in paragraph (a).

39  After Part 2

Insert:

Part 2A Critical infrastructure risk management programs

   

30AA   Simplified outline of this Part

•      The responsible entity for one or more critical infrastructure assets must have, and comply with, a critical infrastructure risk management program.

•      The purpose of a critical infrastructure risk management program is to do the following for each of those assets:

       (a)     identify each hazard where there is a material risk that the occurrence of the hazard could have a relevant impact on the asset;

      (b)     so far as it is reasonably possible to do so—minimise or eliminate any material risk of such a hazard occurring;

       (c)     mitigate the relevant impact of such a hazard on the asset.

•      A responsible entity must give an annual report relating to its critical infrastructure risk management program. If the entity has a board, council or other governing body, the annual report must be approved by the board, council or other governing body.

Note:          See also section 30AB (application of this Part).

30AB   Application of this Part

             (1)  This Part applies to a critical infrastructure asset if:

                     (a)  the asset is specified in the rules; or

                     (b)  both:

                              (i)  the asset is the subject of a declaration under section 51; and

                             (ii)  the declaration determines that this Part applies to the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  The rules may provide that, if an asset becomes a critical infrastructure asset, this Part does not apply to the asset during the period:

                     (a)  beginning when the asset became a critical infrastructure asset; and

                     (b)  ending at a time ascertained in accordance with the rules.

30ABA   Consultation—rules

Scope

             (1)  This section applies to rules made for the purposes of section 30AB.

Consultation

             (2)  Before making or amending the rules, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the draft rules or amendments; and

                             (ii)  inviting persons to make submissions to the Minister about the draft rules or amendments within 28 days after the notice is published; and

                     (b)  give a copy of the notice to each First Minister; and

                     (c)  consider any submissions received within the 28-day period mentioned in paragraph (a).

30AC   Responsible entity must have a critical infrastructure risk management program

                   If an entity is the responsible entity for one or more critical infrastructure assets, the entity must:

                     (a)  adopt; and

                     (b)  maintain;

a critical infrastructure risk management program that applies to the entity.

Civil penalty:          200 penalty units.

30AD   Compliance with critical infrastructure risk management program

                   If:

                     (a)  an entity is the responsible entity for one or more critical infrastructure assets; and

                     (b)  the entity has adopted a critical infrastructure risk management program that applies to the entity;

the entity must comply with:

                     (c)  the critical infrastructure risk management program; or

                     (d)  if the program has been varied on one or more occasions—the program as varied.

Civil penalty:          200 penalty units.

30AE   Review of critical infrastructure risk management program

                   If:

                     (a)  an entity is the responsible entity for one or more critical infrastructure assets; and

                     (b)  the entity has adopted a critical infrastructure risk management program that applies to the entity;

the entity must review the program on a regular basis.

Civil penalty:          200 penalty units.

30AF   Update of critical infrastructure risk management program

                   If:

                     (a)  an entity is the responsible entity for one or more critical infrastructure assets; and

                     (b)  the entity has adopted a critical infrastructure risk management program that applies to the entity;

the entity must take all reasonable steps to ensure that the program is up to date.

Civil penalty:          200 penalty units.

30AG   Responsible entity must submit annual report

Scope

             (1)  This section applies if, during a period (the relevant period ) that consists of the whole or a part of a financial year:

                     (a)  an entity was the responsible entity for one or more critical infrastructure assets; and

                     (b)  the entity had a critical infrastructure risk management program that applied to the entity.

Annual report

             (2)  The entity must, within 90 days after the end of the financial year, give:

                     (a)  if there is a relevant Commonwealth regulator that has functions relating to the security of those assets—the relevant Commonwealth regulator; or

                     (b)  in any other case—the Secretary;

a report that:

                     (c)  if the entity had the program at the end of the financial year—includes whichever of the following statements is applicable:

                              (i)  if the program was up to date at the end of the financial year—a statement to that effect;

                             (ii)  if the program was not up to date at the end of the financial year—a statement to that effect; and

                     (d)  if a hazard had a significant relevant impact on one or more of those assets during the relevant period—includes a statement that:

                              (i)  identifies the hazard; and

                             (ii)  evaluates the effectiveness of the program in mitigating the significant relevant impact of the hazard on the assets concerned; and

                            (iii)  if the program was varied during the financial year as a result of the occurrence of the hazard—outlines the variation; and

                     (e)  is in the approved form; and

                      (f)  if the entity has a board, council or other governing body—is approved by the board, council or other governing body, as the case requires.

Civil penalty:          150 penalty units.

             (3)  A report given by an entity under subsection (2) is not admissible in evidence against the entity in civil proceedings relating to a contravention of a civil penalty provision of this Act.

30AH   Critical infrastructure risk management program

             (1)  A critical infrastructure risk management program is a written program:

                     (a)  that applies to a particular entity that is the responsible entity for one or more critical infrastructure assets; and

                     (b)  the purpose of which is to do the following for each of those assets:

                              (i)  identify each hazard where there is a material risk that the occurrence of the hazard could have a relevant impact on the asset;

                             (ii)  so far as it is reasonably possible to do so—minimise or eliminate any material risk of such a hazard occurring;

                            (iii)  mitigate the relevant impact of such a hazard on the asset; and

                     (c)  that complies with such requirements (if any) as are specified in the rules.

             (2)  Requirements specified under paragraph (1)(c):

                     (a)  may be of general application; or

                     (b)  may relate to one or more specified critical infrastructure assets.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (3)  Subsection (2) of this section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

             (4)  Rules made for the purposes of paragraph (1)(c) may require that a critical infrastructure risk management program include provisions that require background checks of individuals to be conducted under the AusCheck scheme.

             (5)  Subsection (4) does not limit paragraph (1)(c).

             (6)  In specifying requirements in rules made for the purposes of paragraph (1)(c), the Minister must have regard to the following matters:

                     (a)  any existing regulatory system of the Commonwealth, a State or a Territory that imposes obligations on responsible entities;

                     (b)  the costs that are likely to be incurred by responsible entities in complying with those rules;

                     (c)  the reasonableness and proportionality of the requirements in relation to the purpose referred to in paragraph (1)(b);

                     (d)  such other matters (if any) as the Minister considers relevant.

             (7)  For the purposes of this section, in determining whether a risk is a material risk, regard must be had to:

                     (a)  the likelihood of the hazard occurring; and

                     (b)  the relevant impact of the hazard on the asset if the hazard were to occur.

             (8)  The rules may provide that a specified risk is taken to be a material risk for the purposes of this section.

             (9)  The rules may provide that the taking of specified action in relation to a critical infrastructure asset is taken to be action that minimises or eliminates any material risk that the occurrence of a specified hazard could have a relevant impact on the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

           (10)  The rules may provide that the taking of specified action in relation to a specified critical infrastructure asset is taken to be action that minimises or eliminates any material risk that the occurrence of a specified hazard could have a relevant impact on the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

           (11)  The rules may provide that the taking of specified action in relation to a critical infrastructure asset is taken to be action that mitigates the relevant impact of a specified hazard on the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

           (12)  The rules may provide that the taking of specified action in relation to a specified critical infrastructure asset is taken to be action that mitigates the relevant impact of a specified hazard on the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

30AJ   Variation of critical infrastructure risk management program

                   A critical infrastructure risk management program may be varied, so long as the varied program is a critical infrastructure risk management program.

30AK   Revocation of adoption of critical infrastructure risk management program

                   If an entity has adopted a critical infrastructure risk management program that applies to the entity, this Part does not prevent the entity from:

                     (a)  revoking that adoption; and

                     (b)  adopting another critical infrastructure risk management program that applies to the entity.

30AL   Consultation—rules

Scope

             (1)  This section applies to rules made for the purposes of section 30AH.

Consultation

             (2)  Before making or amending the rules, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the draft rules or amendments; and

                             (ii)  inviting persons to make submissions to the Minister about the draft rules or amendments within 28 days after the notice is published; and

                     (b)  give a copy of the notice to each First Minister; and

                     (c)  consider any submissions received within the 28-day period mentioned in paragraph (a).

             (3)  Subsection (2) does not apply if:

                     (a)  the Minister is satisfied that there is an imminent threat that a hazard will have a significant relevant impact on a critical infrastructure asset; or

                     (b)  the Minister is satisfied that a hazard has had, or is having, a significant relevant impact on a critical infrastructure asset.

Note:          See also section 30AM (review of rules).

30AM   Review of rules

Scope

             (1)  This section applies if, because of subsection 30AL(3), subsection 30AL(2) did not apply to the making of:

                     (a)  rules; or

                     (b)  amendments.

Review of rules

             (2)  The Secretary must:

                     (a)  if paragraph (1)(a) applies—review the operation, effectiveness and implications of the rules; and

                     (b)  if paragraph (1)(b) applies—review the operation, effectiveness and implications of the amendments; and

                     (c)  without limiting paragraph (a) or (b), consider whether any amendments should be made; and

                     (d)  give the Minister:

                              (i)  a report of the review; and

                             (ii)  a statement setting out the Secretary’s findings.

             (3)  For the purposes of the review, the Secretary must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the rules or amendments concerned; and

                             (ii)  inviting persons to make submissions to the Secretary about the rules or amendments concerned within 28 days after the notice is published; and

                     (b)  give a copy of the notice to each First Minister; and

                     (c)  consider any submissions received within the 28-day period mentioned in paragraph (a).

             (4)  The Secretary must complete the review within 60 days after the commencement of the rules or amendments concerned.

Minister to table statement of findings

             (5)  The Minister must cause a copy of the statement of findings to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives it.

30AN   Application, adoption or incorporation of a law of a State or Territory etc.

Scope

             (1)  This section applies to rules made for the purposes of section 30AH.

Application, adoption or incorporation of a law of a State or Territory

             (2)  Despite subsection 14(2) of the Legislation Act 2003 , the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in a law of a State or Territory as in force or existing from time to time.

Application, adoption or incorporation of a standard

             (3)  Despite subsection 14(2) of the Legislation Act 2003 , the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in a standard proposed or approved by Standards Australia as in force or existing from time to time.

Note:          The expression Standards Australia is defined in section 2B of the Acts Interpretation Act 1901 .

Part 2B Notification of cyber security incidents

   

30BA   Simplified outline of this Part

If a cyber security incident has a relevant impact on a critical infrastructure asset, the responsible entity for the asset may be required to give a relevant Commonwealth body a report about the incident.

Note:          See also section 30BB (application of this Part).

30BB   Application of this Part

             (1)  This Part applies to a critical infrastructure asset if:

                     (a)  the asset is specified in the rules; or

                     (b)  both:

                              (i)  the asset is the subject of a declaration under section 51; and

                             (ii)  the declaration determines that this Part applies to the asset.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  The rules may provide that, if an asset becomes a critical infrastructure asset, this Part does not apply to the asset during the period:

                     (a)  beginning when the asset became a critical infrastructure asset; and

                     (b)  ending at a time ascertained in accordance with the rules.

30BBA   Consultation—rules

Scope

             (1)  This section applies to rules made for the purposes of section 30BB.

Consultation

             (2)  Before making or amending the rules, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the draft rules or amendments; and

                             (ii)  inviting persons to make submissions to the Minister about the draft rules or amendments within 28 days after the notice is published; and

                     (b)  give a copy of the notice to each First Minister; and

                     (c)  consider any submissions received within the 28-day period mentioned in paragraph (a).

30BC   Notification of critical cyber security incidents

             (1)  If:

                     (a)  an entity is the responsible entity for a critical infrastructure asset; and

                     (b)  the entity becomes aware that:

                              (i)  a cyber security incident has occurred or is occurring; and

                             (ii)  the incident has had, or is having, a significant impact (whether direct or indirect) on the availability of the asset;

the entity must:

                     (c)  give the relevant Commonwealth body (see section 30BF) a report that:

                              (i)  is about the incident; and

                             (ii)  includes such information (if any) as is prescribed by the rules; and

                     (d)  do so as soon as practicable, and in any event within 12 hours, after the entity becomes so aware.

Civil penalty:          50 penalty units.

Form of report etc.

             (2)  A report under subsection (1) may be given:

                     (a)  orally; or

                     (b)  in writing.

             (3)  If a report under subsection (1) is given orally, the entity must:

                     (a)  do both of the following:

                              (i)  make a written record of the report in the approved form;

                             (ii)  give a copy of the written record of the report to the relevant Commonwealth body (see section 30BF); and

                     (b)  do so within 48 hours after the report is given.

Civil penalty:          50 penalty units.

             (4)  If the report is given in writing, the entity must ensure that the report is in the approved form.

Civil penalty:          50 penalty units.

30BD   Notification of other cyber security incidents

             (1)  If:

                     (a)  an entity is the responsible entity for a critical infrastructure asset; and

                     (b)  the entity becomes aware that:

                              (i)  a cyber security incident has occurred, is occurring or is imminent; and

                             (ii)  the incident has had, is having, or is likely to have, a relevant impact on the asset;

the entity must:

                     (c)  give the relevant Commonwealth body (see section 30BF) a report that:

                              (i)  is about the incident; and

                             (ii)  includes such information (if any) as is prescribed by the rules; and

                     (d)  do so as soon as practicable, and in any event within 72 hours, after the entity becomes so aware.

Civil penalty:          50 penalty units.

Form of report etc.

             (2)  A report under subsection (1) may be given:

                     (a)  orally; or

                     (b)  in writing.

             (3)  If a report under subsection (1) is given orally, the entity must:

                     (a)  do both of the following:

                              (i)  make a written record of the report in the approved form;

                             (ii)  give a copy of the written record of the report to the relevant Commonwealth body (see section 30BF); and

                     (b)  do so within 48 hours after the report is given.

Civil penalty:          50 penalty units.

             (4)  If the report is given in writing, the entity must ensure that the report is in the approved form.

Civil penalty:          50 penalty units.

30BE   Liability

             (1)  An entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with section 30BC or section 30BD.

             (2)  An officer, employee or agent of an entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the entity as mentioned in subsection (1).

30BF   Relevant Commonwealth body

                   For the purposes of this Part, relevant Commonwealth body means:

                     (a)  a Department that is specified in the rules; or

                     (b)  a body that is:

                              (i)  established by a law of the Commonwealth; and

                             (ii)  specified in the rules; or

                     (c)  if:

                              (i)  no rules are in force for the purposes of paragraph (a); and

                             (ii)  no rules are in force for the purposes of paragraph (b);

                            ASD.

Part 2C Enhanced cyber security obligations

Division 1 Simplified outline of this Part

30CA   Simplified outline of this Part

•      This Part sets out enhanced cyber security obligations that relate to systems of national significance.

•      The responsible entity for a system of national significance may be subject to statutory incident response planning obligations.

•      The responsible entity for a system of national significance may be required to undertake a cyber security exercise.

•      The responsible entity for a system of national significance may be required to undertake a vulnerability assessment.

•      If a computer is a system of national significance, or is needed to operate a system of national significance, a relevant entity for the system may be required to:

       (a)     give ASD periodic reports of system information; or

      (b)     give ASD event-based reports of system information; or

       (c)     install software that transmits system information to ASD.

Note:          For declaration of a system of national significance, see section 52B.

Division 2 Statutory incident response planning obligations

Subdivision A Application of statutory incident response planning obligations

30CB   Application of statutory incident response planning obligations—determination by the Secretary

             (1)  The Secretary may, by written notice given to an entity that is the responsible entity for a system of national significance, determine that the statutory incident response planning obligations apply to the entity in relation to:

                     (a)  the system; and

                     (b)  cyber security incidents.

             (2)  A determination under this section takes effect at the time specified in the determination.

             (3)  The specified time must not be earlier than the end of the 30-day period that began when the notice was given.

             (4)  Before giving a notice to an entity under this section in relation to a system of national significance, the Secretary must consult:

                     (a)  the entity; and

                     (b)  if there is a relevant Commonwealth regulator that has functions relating to the security of that system—the relevant Commonwealth regulator.

             (5)  A determination under this section is not a legislative instrument.

30CC   Revocation of determination

Scope

             (1)  This section applies if:

                     (a)  a determination is in force under section 30CB; and

                     (b)  notice of the determination was given to a particular entity.

Power to revoke determination

             (2)  The Secretary may, by written notice given to the entity, revoke the determination.

Application of Acts Interpretation Act 1901

             (3)  This section does not, by implication, affect the application of subsection 33(3) of the Acts Interpretation Act 1901 to an instrument made under a provision of this Act (other than this Division).

Subdivision B Statutory incident response planning obligations

30CD   Responsible entity must have an incident response plan

                   If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the statutory incident response planning obligations apply to the entity in relation to:

                              (i)  the system; and

                             (ii)  cyber security incidents;

the entity must:

                     (c)  adopt; and

                     (d)  maintain;

an incident response plan that applies to the entity in relation to:

                     (e)  the system; and

                      (f)  cyber security incidents.

Civil penalty:          200 penalty units.

30CE   Compliance with incident response plan

                   If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the entity has adopted an incident response plan that applies to the entity;

the entity must comply with:

                     (c)  the incident response plan; or

                     (d)  if the plan has been varied on one or more occasions—the plan as varied.

Civil penalty:          200 penalty units.

30CF   Review of incident response plan

                   If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the entity has adopted an incident response plan that applies to the entity;

the entity must review the plan on a regular basis.

Civil penalty:          200 penalty units.

30CG   Update of incident response plan

                   If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the entity has adopted an incident response plan that applies to the entity;

the entity must take all reasonable steps to ensure that the plan is up to date.

Civil penalty:          200 penalty units.

30CH   Copy of incident response plan must be given to the Secretary

             (1)  If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the entity adopts an incident response plan that applies to the entity;

the entity must:

                     (c)  provide a copy of the incident response plan to the Secretary; and

                     (d)  do so as soon as practicable after the adoption.

Civil penalty:          200 penalty units.

             (2)  If:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  the entity varies an incident response plan that applies to the entity;

the entity must:

                     (c)  provide a copy of the varied incident response plan to the Secretary; and

                     (d)  do so as soon as practicable after the variation.

Civil penalty:          200 penalty units.

30CJ   Incident response plan

             (1)  An incident response plan is a written plan:

                     (a)  that applies to an entity that is the responsible entity for a system of national significance; and

                     (b)  that relates to the system; and

                     (c)  that relates to cyber security incidents; and

                     (d)  the purpose of which is to plan for responding to cyber security incidents that could have a relevant impact on the system; and

                     (e)  that complies with such requirements (if any) as are specified in the rules.

             (2)  Requirements specified under paragraph (1)(e):

                     (a)  may be of general application; or

                     (b)  may relate to one or more specified systems of national significance; or

                     (c)  may relate to one or more specified types of cyber security incidents.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (3)  Subsection (2) of this section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

30CK   Variation of incident response plan

                   An incident response plan may be varied, so long as the varied plan is an incident response plan.

30CL   Revocation of adoption of incident response plan

                   If an entity has adopted an incident response plan that applies to the entity, this Division does not prevent the entity from:

                     (a)  revoking that adoption; and

                     (b)  adopting another incident response plan that applies to the entity.

Division 3 Cyber security exercises

30CM   Requirement to undertake cyber security exercise

             (1)  The Secretary may, by written notice given to an entity that is the responsible entity for a system of national significance, require the entity to:

                     (a)  undertake a cyber security exercise in relation to:

                              (i)  the system; and

                             (ii)  all types of cyber security incidents; and

                     (b)  do so within the period specified in the notice.

             (2)  The Secretary may, by written notice given to an entity that is the responsible entity for a system of national significance, require the entity to:

                     (a)  undertake a cyber security exercise in relation to:

                              (i)  the system; and

                             (ii)  one or more specified types of cyber security incidents; and

                     (b)  do so within the period specified in the notice.

             (3)  The period specified in a notice under subsection (1) or (2) must not be earlier than the end of the 30-day period that began when the notice was given.

             (4)  A notice under subsection (1) or (2) may also require the entity to do any or all of the following things:

                     (a)  allow one or more specified designated officers to observe the cyber security exercise;

                     (b)  provide those designated officers with access to premises for the purposes of observing the cyber security exercise;

                     (c)  provide those designated officers with reasonable assistance and facilities that are reasonably necessary to allow those designated officers to observe the cyber security exercise;

                     (d)  allow those designated officers to make such records as are reasonably necessary for the purposes of monitoring compliance with the notice;

                     (e)  give those designated officers reasonable notice of the time when the cyber security exercise will begin.

             (5)  Before giving a notice to an entity under subsection (1) or (2) in relation to a system of national significance, the Secretary must consult:

                     (a)  the entity; and

                     (b)  if there is a relevant Commonwealth regulator that has functions relating to the security of that system—the relevant Commonwealth regulator.

30CN   Cyber security exercise

             (1)  A cyber security exercise is an exercise:

                     (a)  that is undertaken by the responsible entity for a system of national significance; and

                     (b)  that relates to the system; and

                     (c)  that either:

                              (i)  relates to all types of cyber security incidents; or

                             (ii)  relates to one or more specified types of cyber security incidents; and

                     (d)  if the exercise relates to all types of cyber security incidents—the purpose of which is to:

                              (i)  test the entity’s ability to respond appropriately to all types of cyber security incidents that could have a relevant impact on the system; and

                             (ii)   test the entity’s preparedness to respond appropriately to all types of cyber security incidents that could have a relevant impact on the system; and

                            (iii)  test the entity’s ability to mitigate the relevant impacts that all types of cyber security incidents could have on the system; and

                     (e)  if the exercise relates to one or more specified types of cyber security incidents—the purpose of which is to:

                              (i)  test the entity’s ability to respond appropriately to those types of cyber security incidents that could have a relevant impact on the system; and

                             (ii)   test the entity’s preparedness to respond appropriately to those types of cyber security incidents that could have a relevant impact on the system; and

                            (iii)  test the entity’s ability to mitigate the relevant impacts that those types of cyber security incidents could have on the system; and

                      (f)  that complies with such requirements (if any) as are specified in the rules.

             (2)  Requirements specified under paragraph (1)(f):

                     (a)  may be of general application; or

                     (b)  may relate to one or more specified systems of national significance; or

                     (c)  may relate to one or more specified types of cyber security incidents.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (3)  Subsection (2) of this section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

30CP   Compliance with requirement to undertake cyber security exercise

                   An entity must comply with a notice given to the entity under section 30CM.

Civil penalty:          200 penalty units.

30CQ   Internal evaluation report

             (1)  If an entity undertakes a cyber security exercise under section 30CM, the entity must:

                     (a)  do both of the following:

                              (i)  prepare an evaluation report relating to the cyber security exercise;

                             (ii)  give a copy of the report to the Secretary; and

                     (b)  do so:

                              (i)  within 30 days after the completion of the exercise; or

                             (ii)  if the Secretary allows a longer period—within that longer period.

Civil penalty:          200 penalty units.

             (2)  An evaluation report prepared by an entity under subsection (1) is not admissible in evidence against the entity in civil proceedings relating to a contravention of a civil penalty provision of this Act (other than subsection (1) of this section or subsection 30CR(6)).

30CR   External evaluation report

Scope

             (1)  This section applies if an entity has undertaken a cyber security exercise under section 30CM, and:

                     (a)  all of the following conditions are satisfied:

                              (i)  the entity has prepared, or purported to prepare, an evaluation report under section 30CQ relating to the exercise;

                             (ii)  the entity has given a copy of the report to the Secretary;

                            (iii)  the Secretary has reasonable grounds to believe that the report was not prepared appropriately; or

                     (b)  the entity has contravened section 30CQ.

Requirement

             (2)  The Secretary may, by written notice given to the entity, require the entity to:

                     (a)  appoint an external auditor; and

                     (b)  arrange for the external auditor to prepare an evaluation report (the new evaluation report ) relating to the exercise; and

                     (c)  arrange for the external auditor to give the new evaluation report to the entity; and

                     (d)  give the Secretary a copy of the new evaluation report within:

                              (i)  the period specified in the notice; or

                             (ii)  if the Secretary allows a longer period—that longer period.

             (3)  The notice must specify:

                     (a)  the matters to be covered by the new evaluation report; and

                     (b)  the form of the new evaluation report and the kinds of details it is to contain.

Consultation

             (4)  Before giving a notice to an entity under this section in connection with a cyber security exercise that relates to a system of national significance, the Secretary must consult:

                     (a)  the entity; and

                     (b)  if there is a relevant Commonwealth regulator that has functions relating to the security of that system—the relevant Commonwealth regulator.

Eligibility for appointment as an external auditor

             (5)  An individual is not eligible to be appointed an external auditor by the entity if the individual is an officer, employee or agent of the entity.

Compliance

             (6)  An entity must comply with a requirement under subsection (2).

Civil penalty:          200 penalty units.

Immunity

             (7)  The new evaluation report is not admissible in evidence against the entity in civil proceedings relating to a contravention of a civil penalty provision of this Act (other than subsection (6)).

30CS   Meaning of evaluation report

                   An evaluation report , in relation to a cyber security exercise that was undertaken in relation to a system of national significance, is a written report:

                     (a)  if the exercise relates to all types of cyber security incidents—the purpose of which is to:

                              (i)  evaluate the entity’s ability to respond appropriately to all types of cyber security incidents that could have a relevant impact on the system; and

                             (ii)   evaluate the entity’s preparedness to respond appropriately to all types of cyber security incidents that could have a relevant impact on the system; and

                            (iii)  evaluate the entity’s ability to mitigate the relevant impacts that all types of cyber security incidents could have on the system; and

                     (b)  if the exercise relates to one or more specified types of cyber security incidents—the purpose of which is to:

                              (i)  evaluate the entity’s ability to respond appropriately to those types of cyber security incidents that could have a relevant impact on the system; and

                             (ii)   evaluate the entity’s preparedness to respond appropriately to those types of cyber security incidents that could have a relevant impact on the system; and

                            (iii)  evaluate the entity’s ability to mitigate the relevant impacts that those types of cyber security incidents could have on the system; and

                     (c)  that complies with such requirements (if any) as are specified in the rules.

30CT   External auditors

             (1)  The Secretary may, by writing, authorise a specified individual to be an external auditor for the purposes of this Act.

Note:          For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901 .

             (2)  An authorisation under subsection (1) is not a legislative instrument.

Division 4 Vulnerability assessments

30CU   Requirement to undertake vulnerability assessment

             (1)  The Secretary may, by written notice given to an entity that is the responsible entity for a system of national significance, require the entity to:

                     (a)  undertake, or cause to be undertaken, a vulnerability assessment in relation to:

                              (i)  the system; and

                             (ii)  all types of cyber security incidents; and

                     (b)  do so within the period specified in the notice.

             (2)  The Secretary may, by written notice given to an entity that is the responsible entity for a system of national significance, require the entity to:

                     (a)  undertake, or cause to be undertaken, a vulnerability assessment in relation to:

                              (i)  the system; and

                             (ii)  one or more specified types of cyber security incidents; and

                     (b)  do so within the period specified in the notice.

             (3)  Before giving a notice to an entity under subsection (1) or (2) in relation to the system of national significance, the Secretary must consult:

                     (a)  the entity; and

                     (b)  if there is a relevant Commonwealth regulator that has functions relating to the security of that system—the relevant Commonwealth regulator.

30CV   Compliance with requirement to undertake a vulnerability assessment

                   An entity must comply with a notice given to the entity under section 30CU.

Civil penalty:          200 penalty units.

30CW   Designated officers may undertake a vulnerability assessment

Scope

             (1)  This section applies if:

                     (a)  an entity is the responsible entity for a system of national significance; and

                     (b)  either:

                              (i)  the Secretary has reasonable grounds to believe that if the entity were to be given a notice under subsection 30CU(1) or (2), the entity would not be capable of complying with the notice; or

                             (ii)  the entity has not complied with a notice given to the entity under subsection 30CU(1) or (2).

Request

             (2)  The Secretary may give a designated officer a written request to:

                     (a)  undertake a vulnerability assessment in relation to:

                              (i)  the system; and

                             (ii)  all types of cyber security incidents; and

                     (b)  do so within the period specified in the request.

             (3)  The Secretary may give a designated officer a written request to:

                     (a)  undertake a vulnerability assessment in relation to:

                              (i)  the system; and

                             (ii)  one or more specified types of cyber security incidents; and

                     (b)  do so within the period specified in the request.

             (4)  Before giving a request under subsection (2) or (3) in relation to the system of national significance, the Secretary must consult:

                     (a)  the entity; and

                     (b)  if there is a relevant Commonwealth regulator that has functions relating to the security of that system—the relevant Commonwealth regulator.

Requirement

             (5)  If a request under subsection (2) or (3) is given to a designated officer, the Secretary may, by written notice given to the entity, require the entity to do any or all of the following things:

                     (a)  provide the designated officer with access to premises for the purposes of undertaking the vulnerability assessment;

                     (b)  provide the designated officer with access to computers for the purposes of undertaking the vulnerability assessment;

                     (c)  provide the designated officer with reasonable assistance and facilities that are reasonably necessary to allow the designated officer to undertake the vulnerability assessment.

Notification of request

             (6)  If a request under subsection (2) or (3) is given to a designated officer, the Secretary must give a copy of the request to the entity.

30CX   Compliance with requirement to provide reasonable assistance etc.

                   An entity must comply with a notice given to the entity under subsection 30CW(5).

Civil penalty:          200 penalty units.

30CY   Vulnerability assessment

             (1)  A vulnerability assessment is an assessment:

                     (a)  that relates to a system of national significance; and

                     (b)  that either:

                              (i)  relates to all types of cyber security incidents; or

                             (ii)  relates to one or more specified types of cyber security incidents; and

                     (c)  if the assessment relates to all types of cyber security incidents—the purpose of which is to test the vulnerability of the system to all types of cyber security incidents; and

                     (d)  if the assessment relates to one or more specified types of cyber security incidents—the purpose of which is to test the vulnerability of the system to those types of cyber security incidents; and

                     (e)  that complies with such requirements (if any) as are specified in the rules.

             (2)  Requirements specified under paragraph (1)(e):

                     (a)  may be of general application; or

                     (b)  may relate to one or more specified systems of national significance; or

                     (c)  may relate to one or more specified types of cyber security incidents.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (3)  Subsection (2) of this section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

30CZ   Vulnerability assessment report

             (1)  If an entity undertakes, or causes to be undertaken, a vulnerability assessment under section 30CU, the entity must:

                     (a)  do both of the following:

                              (i)  prepare, or cause to be prepared, a vulnerability assessment report relating to the assessment;

                             (ii)  give a copy of the report to the Secretary; and

                     (b)  do so:

                              (i)  within 30 days after the completion of the assessment; or

                             (ii)  if the Secretary allows a longer period—within that longer period.

Civil penalty:          200 penalty units.

             (2)  If a designated officer undertakes a vulnerability assessment in accordance with a request given to the designated officer under section 30CW, the designated officer must:

                     (a)  do both of the following:

                              (i)  prepare a vulnerability assessment report relating to the assessment;

                             (ii)  give a copy of the report to the Secretary; and

                     (b)  do so:

                              (i)  within 30 days after the completion of the assessment; or

                             (ii)  if the Secretary allows a longer period—within that longer period.

             (3)  If an entity prepares, or causes to be prepared, a report under subsection (1), the report is not admissible in evidence against the entity in civil proceedings relating to a contravention of a civil penalty provision of this Act (other than subsection (1)).

30DA   Meaning of vulnerability assessment report

                   A vulnerability assessment report , in relation to a vulnerability assessment that was undertaken in relation to a system of national significance, is a written report:

                     (a)  if the assessment relates to all types of cyber security incidents—the purpose of which is to assess the vulnerability of the system to all types of cyber security incidents; and

                     (b)  if the assessment relates to one or more specified types of cyber security incidents—the purpose of which is to assess the vulnerability of the system to those types of cyber security incidents; and

                     (c)  that complies with such requirements (if any) as are specified in the rules.

Division 5 Access to system information

Subdivision A System information reporting notices

30DB   Secretary may require periodic reporting of system information

Scope

             (1)  This section applies if:

                     (a)  a computer:

                              (i)  is needed to operate a system of national significance; or

                             (ii)  is a system of national significance; and

                     (b)  the Secretary believes on reasonable grounds that a relevant entity for the system of national significance is technically capable of preparing periodic reports consisting of information that:

                              (i)  relates to the operation of the computer; and

                             (ii)  may assist with determining whether a power under this Act should be exercised in relation to the system of national significance; and

                            (iii)  is not personal information (within the meaning of the Privacy Act 1988 ).

Requirement

             (2)  The Secretary may, by written notice given to the entity, require the entity to:

                     (a)  prepare periodic reports that:

                              (i)  consist of any such information; and

                             (ii)  relate to such regular intervals as are specified in the notice; and

                     (b)  prepare those periodic reports:

                              (i)  in the manner and form specified in the notice; and

                             (ii)  in accordance with the information technology requirements specified in the notice; and

                     (c)  give each of those periodic reports to ASD within the period ascertained in accordance with the notice in relation to the periodic report concerned.

             (3)  A notice under subsection (2) is to be known as a system information periodic reporting notice .

             (4)  In deciding whether to give a system information periodic reporting notice to the entity, the Secretary must have regard to:

                     (a)  the costs that are likely to be incurred by the entity in complying with the notice; and

                     (b)  such other matters (if any) as the Secretary considers relevant.

Matters to be set out in notice

             (5)  A system information periodic reporting notice must set out the effect of section 30DF.

Other powers not limited

             (6)  This section does not, by implication, limit a power conferred by another provision of this Act.

30DC   Secretary may require event-based reporting of system information

Scope

             (1)  This section applies if:

                     (a)  a computer:

                              (i)  is needed to operate a system of national significance; or

                             (ii)  is a system of national significance; and

                     (b)  the Secretary believes on reasonable grounds that, each time a particular kind of event occurs, a relevant entity for the system of national significance will be technically capable of preparing a report consisting of information that:

                              (i)  relates to the operation of the computer; and

                             (ii)  may assist with determining whether a power under this Act should be exercised in relation to the system of national significance; and

                            (iii)  is not personal information (within the meaning of the Privacy Act 1988 ).

Requirement

             (2)  The Secretary may, by written notice given to the entity, require the entity to do the following things each time an event of that kind occurs:

                     (a)  prepare a report that consists of any such information;

                     (b)  prepare that report:

                              (i)  in the manner and form specified in the notice; and

                             (ii)  in accordance with the information technology requirements specified in the notice;

                     (c)  give that report to ASD as soon as practicable after the event occurs.

             (3)  A notice under subsection (2) is to be known as a system information event-based reporting notice .

             (4)  In deciding whether to give a system information event-based reporting notice to the entity, the Secretary must have regard to:

                     (a)  the costs that are likely to be incurred by the entity in complying with the notice; and

                     (b)  such other matters (if any) as the Secretary considers relevant.

Matters to be set out in notice

             (5)  A system information event-based reporting notice must set out the effect of section 30DF.

Other powers not limited

             (6)  This section does not, by implication, limit a power conferred by another provision of this Act.

30DD   Consultation

                   Before giving:

                     (a)  a system information periodic reporting notice; or

                     (b)  a system information event-based reporting notice;

to a relevant entity for a system of national significance, the Secretary must consult:

                     (c)  the relevant entity; and

                     (d)  if the relevant entity is not the responsible entity for the system of national significance—the responsible entity for the system of national significance.

30DE   Duration of system information periodic reporting notice or system information event-based reporting notice

             (1)  A system information periodic reporting notice or a system information event-based reporting notice:

                     (a)  comes into force:

                              (i)  when it is given; or

                             (ii)  if a later time is specified in the notice—at that later time; and

                     (b)  remains in force for the period specified in the notice.

             (2)  The period specified in the notice must not be longer than 12 months.

             (3)  If a system information periodic reporting notice (the original notice ) is in force, this Act does not prevent the Secretary from giving a fresh system information periodic reporting notice that:

                     (a)  is in the same, or substantially the same, terms as the original notice; and

                     (b)  comes into force immediately after the expiry of the original notice.

             (4)  If a system information event-based reporting notice (the original notice ) is in force, this Act does not prevent the Secretary from giving a fresh system information event-based reporting notice that:

                     (a)  is in the same, or substantially the same, terms as the original notice; and

                     (b)  comes into force immediately after the expiry of the original notice.

30DF   Compliance with system information periodic reporting notice or system information event-based reporting notice

                   An entity must comply with:

                     (a)  a system information periodic reporting notice; or

                     (b)  a system information event-based reporting notice;

to the extent that the entity is capable of doing so.

Civil penalty:          200 penalty units.

30DG   Self-incrimination etc.

             (1)  An entity is not excused from giving a report under section 30DB or 30DC on the ground that the report might tend to incriminate the entity.

             (2)  If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving a report under section 30DB or 30DC, the individual is not excused from giving a report under that section on that ground.

Note:          A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

30DH   Admissibility of report etc.

                   If a report is given under section 30DB or 30DC:

                     (a)  the report; or

                     (b)  giving the report;

is not admissible in evidence against an entity:

                     (c)  in criminal proceedings other than proceedings for an offence against section 137.2 of the Criminal Code that relates to this Act; or

                     (d)  in civil proceedings other than proceedings for recovery of a penalty in relation to a contravention of section 30DF.

Subdivision B System information software

30DJ   Secretary may require installation of system information software

Scope

             (1)  This section applies if:

                     (a)  a computer:

                              (i)  is needed to operate a system of national significance; or

                             (ii)  is a system of national significance; and

                     (b)  the Secretary believes on reasonable grounds that a relevant entity for the system of national significance would not be technically capable of preparing reports under section 30DB or 30DC consisting of information that:

                              (i)  relates to the operation of the computer; and

                             (ii)  may assist with determining whether a power under this Act should be exercised in relation to the system of national significance; and

                            (iii)  is not personal information (within the meaning of the Privacy Act 1988 ).

Requirement

             (2)  The Secretary may, by written notice given to the entity, require the entity to:

                     (a)  both:

                              (i)  install a specified computer program on the computer; and

                             (ii)  do so within the period specified in the notice; and

                     (b)  maintain the computer program installed in accordance with paragraph (a); and

                     (c)  take all reasonable steps to ensure that the computer is continuously supplied with an internet carriage service that enables the computer program to function.

             (3)  A notice under subsection (2) is to be known as a system information software notice .

             (4)  In deciding whether to give a system information software notice to the entity, the Secretary must have regard to:

                     (a)  the costs that are likely to be incurred by the entity in complying with the notice; and

                     (b)  such other matters (if any) as the Secretary considers relevant.

             (5)  A computer program may only be specified in a system information software notice if the purpose of the computer program is to:

                     (a)  collect and record information that:

                              (i)  relates to the operation of the computer; and

                             (ii)  may assist with determining whether a power under this Act should be exercised in relation to the system of national significance; and

                            (iii)  is not personal information (within the meaning of the Privacy Act 1988 ); and

                     (b)  cause the information to be transmitted electronically to ASD.

Matters to be set out in notice

             (6)  A system information software notice must set out the effect of section 30DM.

Other powers not limited

             (7)  This section does not, by implication, limit a power conferred by another provision of this Act.

30DK   Consultation

                   Before giving a system information software notice to a relevant entity for a system of national significance, the Secretary must consult:

                     (a)  the relevant entity; and

                     (b)  if the relevant entity is not the responsible entity for the system of national significance—the responsible entity for the system of national significance.

30DL   Duration of system information software notice

             (1)  A system information software notice:

                     (a)  comes into force:

                              (i)  when it is given; or

                             (ii)  if a later time is specified in the notice—at that later time; and

                     (b)  remains in force for the period specified in the notice.

             (2)  The period specified in the notice must not be longer than 12 months.

             (3)  If a system information software notice (the original notice ) is in force, this Act does not prevent the Secretary from giving a fresh system information software notice that:

                     (a)  is in the same, or substantially the same, terms as the original notice; and

                     (b)  comes into force immediately after the expiry of the original notice.

30DM   Compliance with system information software notice

                   An entity must comply with a system information software notice to the extent that the entity is capable of doing so.

Civil penalty:          200 penalty units.

30DN   Self-incrimination etc.

             (1)  An entity is not excused from complying with a system information software notice on the ground that complying with the notice might tend to incriminate the entity.

             (2)  If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to complying with a system information software notice, the individual is not excused from complying with the notice on that ground.

Note:          A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

30DP   Admissibility of information etc.

                   If:

                     (a)  a computer program is installed in compliance with a system information software notice; and

                     (b)  information is transmitted to ASD as a result of the operation of the computer program;

the information is not admissible in evidence against an entity:

                     (c)  in criminal proceedings; or

                     (d)  in civil proceedings other than proceedings for recovery of a penalty in relation to a contravention of section 30DM.

Division 6 Designated officers

30DQ   Designated officer

             (1)  A designated officer is an individual appointed by the Secretary, in writing, to be a designated officer for the purposes of this Act.

             (2)  The Secretary must not appoint an individual under subsection (1) unless:

                     (a)  the individual is a Departmental employee; or

                     (b)  both:

                              (i)  the individual is a staff member of ASD; and

                             (ii)  the Director-General of ASD has agreed to the appointment.

             (3)  The Secretary may, in writing, declare that each Departmental employee included in a specified class of Departmental employees is a designated officer.

             (4)  The Secretary may, in writing, declare that each staff member of ASD included in a specified class of staff members of ASD is a designated officer.

             (5)  The Secretary must not make a declaration under subsection (4) unless the Director-General of ASD has agreed to the declaration.

             (6)  For the purposes of this section, Departmental employee means an APS employee in the Department.

             (7)  For the purposes of this section, staff member of ASD has the same meaning as in the Intelligence Services Act 2001 .

             (8)  A declaration under this section is not a legislative instrument.

40  Paragraph 32(4)(c)

Omit “industry for the critical infrastructure asset”, substitute “critical infrastructure sector”.

41  At the end of section 32

Add:

Other powers not limited

             (6)  This section does not, by implication, limit a power conferred by another provision of this Act.

42  Subparagraph 33(1)(a)(i)

Before “located”, insert “wholly or partly”.

43  Subparagraph 33(1)(a)(ii)

Omit “industry for the critical infrastructure asset”, substitute “critical infrastructure sector”.

44  At the end of Part 3

Add:

35AAA   Directions prevail over inconsistent critical infrastructure risk management programs

                   If a critical infrastructure risk management program is applicable to a critical infrastructure asset, the program has no effect to the extent to which it is inconsistent with a direction under subsection 32(2).

35AAB   Liability

             (1)  An entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with a direction under subsection 32(2).

             (2)  An officer, employee or agent of an entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the entity as mentioned in subsection (1) of this section.

45  After Part 3

Insert:

Part 3A Responding to serious cyber security incidents

Division 1 Simplified outline of this Part

35AA   Simplified outline of this Part

•      This Part sets up a regime for the Commonwealth to respond to serious cyber security incidents.

•      If a cyber security incident has had, is having, or is likely to have, a relevant impact on a critical infrastructure asset, the Minister may, in order to respond to the incident, do any or all of the following things:

       (a)     authorise the Secretary to give information-gathering directions to a relevant entity for the asset;

      (b)     authorise the Secretary to give an action direction to a relevant entity for the asset;

       (c)     authorise the Secretary to give an intervention request to the authorised agency.

•      An information-gathering direction requires the relevant entity to give information to the Secretary.

•      An action direction requires the relevant entity to do, or refrain from doing, a specified act or thing.

•      An intervention request is a request that the authorised agency do one or more specified acts or things in relation to the asset.

Division 2 Ministerial authorisation relating to cyber security incident

35AB   Ministerial authorisation

Scope

             (1)  This section applies if the Minister is satisfied that:

                     (a)  a cyber security incident:

                              (i)  has occurred; or

                             (ii)  is occurring; or

                            (iii)  is imminent; and

                     (b)  the incident has had, is having, or is likely to have, a relevant impact on a critical infrastructure asset (the primary asset ); and

                     (c)  there is a material risk that the incident has seriously prejudiced, is seriously prejudicing, or is likely to seriously prejudice:

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

                             (ii)  the defence of Australia; or

                            (iii)  national security; and

                     (d)  no existing regulatory system of the Commonwealth, a State or a Territory could be used to provide a practical and effective response to the incident.

Authorisation

             (2)  The Minister may, on application by the Secretary, do any or all of the following things:

                     (a)  authorise the Secretary to give directions to a specified entity under section 35AK that relate to the incident and the primary asset;

                     (b)  authorise the Secretary to give directions to a specified entity under section 35AK that relate to the incident and a specified critical infrastructure sector asset;

                     (c)  authorise the Secretary to give to a specified entity a specified direction under section 35AQ that relates to the incident and the primary asset;

                     (d)  authorise the Secretary to give to a specified entity a specified direction under section 35AQ that relates to the incident and a specified critical infrastructure sector asset;

                     (e)  authorise the Secretary to give a specified request under section 35AX that relates to the incident and the primary asset;

                      (f)  authorise the Secretary to give a specified request under section 35AX that relates to the incident and a specified critical infrastructure sector asset.

Note 1:       Section 35AK deals with information gathering directions.

Note 2:       Section 35AQ deals with action directions.

Note 3:       Section 35AX deals with intervention requests.

             (3)  An authorisation under subsection (2) is to be known as a Ministerial authorisation .

             (4)  Subsection 33(3AB) of the Acts Interpretation Act 1901 does not apply to subsection (2) of this section.

Note:          Subsection 33(3AB) of the Acts Interpretation Act 1901 deals with specification by class.

Information gathering directions

             (5)  A Ministerial authorisation under paragraph (2)(a) or (b):

                     (a)  is generally applicable to the incident and the asset concerned; and

                     (b)  is to be made without reference to any specific directions.

             (6)  The Minister must not give a Ministerial authorisation under paragraph (2)(a) or (b) unless the Minister is satisfied that the directions that could be authorised by the Ministerial authorisation are likely to facilitate a practical and effective response to the incident.

Action directions

             (7)  The Minister must not give a Ministerial authorisation under paragraph (2)(c) or (d) unless the Minister is satisfied that:

                     (a)  the specified entity is unwilling or unable to take all reasonable steps to respond to the incident; and

                     (b)  the specified direction is reasonably necessary for the purposes of responding to the incident; and

                     (c)  the specified direction is a proportionate response to the incident; and

                     (d)  compliance with the specified direction is technically feasible.

Note:          Section 12P provides examples of responding to a cyber security incident.

             (8)  In determining whether the specified direction is a proportionate response to the incident, the Minister must have regard to:

                     (a)  the impact of the specified direction on:

                              (i)  the activities carried on by the specified entity; and

                             (ii)  the functioning of the asset concerned; and

                     (b)  the consequences of compliance with the specified direction; and

                     (c)  such other matters (if any) as the Minister considers relevant.

             (9)  The Minister must not give a Ministerial authorisation under paragraph (2)(c) or (d) if the specified direction:

                     (a)  requires the specified entity to permit the authorised agency to do an act or thing that could be the subject of a request under section 35AX; or

                     (b)  requires the specified entity to take offensive cyber action against a person who is directly or indirectly responsible for the incident.

Intervention requests

           (10)  The Minister must not give a Ministerial authorisation under paragraph (2)(e) or (f) unless the Minister is satisfied that:

                     (a)  giving a Ministerial authorisation under paragraph (2)(c) or (d) would not amount to a practical and effective response to the incident; and

                     (b)  if there is only one relevant entity for the asset concerned—the relevant entity is unwilling or unable to take all reasonable steps to respond to the incident; and

                     (c)  if there are 2 or more relevant entities for the asset concerned—those entities, when considered together, are unwilling or unable to take all reasonable steps to respond to the incident; and

                     (d)  the specified request is reasonably necessary for the purposes of responding to the incident; and

                     (e)  the specified request is a proportionate response to the incident; and

                      (f)  compliance with the specified request is technically feasible; and

                     (g)  each of the acts or things specified in the specified request is an act or thing of a kind covered by section 35AC.

Note:          Section 12P provides examples of responding to a cyber security incident.

           (11)  In determining whether the specified request is a proportionate response to the incident, the Minister must have regard to:

                     (a)  the impact of compliance with the specified request on the functioning of the asset concerned; and

                     (b)  the consequences of acts or things that would be done in compliance with the specified request; and

                     (c)  such other matters (if any) as the Minister considers relevant.

           (12)  The Minister must not give a Ministerial authorisation under paragraph (2)(e) or (f) if compliance with the specified request would involve the authorised agency taking offensive cyber action against a person who is directly or indirectly responsible for the incident.

           (13)  The Minister must not give a Ministerial authorisation under paragraph (2)(e) or (f) unless the Minister has obtained the agreement of:

                     (a)  the Prime Minister; and

                     (b)  the Defence Minister.

           (14)  An agreement under subsection (13) may be given:

                     (a)  orally; or

                     (b)  in writing.

           (15)  If an agreement under subsection (13) is given orally, the Prime Minister or the Defence Minister, as the case requires, must:

                     (a)  do both of the following:

                              (i)  make a written record of the agreement;

                             (ii)  give a copy of the written record of the agreement to the Minister; and

                     (b)  do so within 48 hours after the agreement is given.

Ministerial authorisation is not a legislative instrument

           (16)  A Ministerial authorisation is not a legislative instrument.

Other powers not limited

           (17)  This section does not, by implication, limit a power conferred by another provision of this Act.

35AC   Kinds of acts or things that may be specified in an intervention request

                   For the purposes of the application of paragraph 35AB(10)(g) to a Ministerial authorisation of a request, each of the following kinds of acts or things is covered by this section:

                     (a)  access or modify:

                              (i)  a computer that is, or is part of, the asset to which the Ministerial authorisation relates; or

                             (ii)  a computer device that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (b)  undertake an analysis of:

                              (i)  a computer that is, or is part of, the asset to which the Ministerial authorisation relates; or

                             (ii)  a computer program that is, or is part of, the asset to which the Ministerial authorisation relates; or

                            (iii)  computer data that is, or is part of, the asset to which the Ministerial authorisation relates; or

                            (iv)  a computer device that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (c)  if it is necessary to achieve the purpose mentioned in paragraph (b)—install a computer program on a computer that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (d)  access, add, restore, copy, alter or delete data held in:

                              (i)  a computer that is, or is part of, the asset to which the Ministerial authorisation relates; or

                             (ii)  a computer device that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (e)  access, restore, copy, alter or delete a computer program that is, or is part of, the asset to which the Ministerial authorisation relates;

                      (f)  access, copy, alter or delete a computer program that is installed on a computer that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (g)  alter the functioning of:

                              (i)  a computer that is, or is part of, the asset to which the Ministerial authorisation relates; or

                             (ii)  a computer device that is, or is part of, the asset to which the Ministerial authorisation relates;

                     (h)  remove or disconnect:

                              (i)  a computer; or

                             (ii)  a computer device;

                            from a computer network that is, or is part of, the asset to which the Ministerial authorisation relates;

                      (i)  connect or add:

                              (i)  a computer; or

                             (ii)  a computer device;

                            to a computer network that is, or is part of, the asset to which the Ministerial authorisation relates;

                      (j)  remove:

                              (i)  a computer that is, or is part of, the asset to which the Ministerial authorisation relates; or

                             (ii)  a computer device that is, or is part of, the asset to which the Ministerial authorisation relates;

                            from premises.

35AD   Consultation

             (1)  Before giving a Ministerial authorisation under paragraph 35AB(2)(c) or (d), the Minister must consult the specified entity unless the delay that would occur if the specified entity were consulted would frustrate the effectiveness of the Ministerial authorisation.

             (2)  Before giving a Ministerial authorisation under paragraph 35AB(2)(e) or (f) in relation to an asset, the Minister must:

                     (a)  if the asset is a critical infrastructure asset—consult the responsible entity for the asset; or

                     (b)  if the asset is a critical infrastructure sector asset (other than a critical infrastructure asset)—consult whichever of the following entities the Minister considers to be most relevant in relation to the proposed authorisation:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset;

unless the delay that would occur if the entity or entities were consulted would frustrate the effectiveness of the Ministerial authorisation.

35AE   Form and notification of Ministerial authorisation

             (1)  A Ministerial authorisation may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  The Minister must not give a Ministerial authorisation orally in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset;

unless the delay that would occur if the Ministerial authorisation were to be made in writing would frustrate the effectiveness of:

                     (c)  any directions that may be given under section 35AK or 35AQ in relation to the incident and the asset; or

                     (d)  any requests that may be given under section 35AX in relation to the incident and the asset.

Notification of Ministerial authorisations given orally

             (3)  If a Ministerial authorisation is given orally in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset;

the Minister must:

                     (c)  do both of the following:

                              (i)  make a written record of the Ministerial authorisation;

                             (ii)  give a copy of the written record of the Ministerial authorisation to the Secretary and the Inspector-General of Intelligence and Security; and

                     (d)  do so within 48 hours after the Ministerial authorisation is given.

             (4)  If a Ministerial authorisation is given orally in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure asset;

the Minister must:

                     (c)  do both of the following:

                              (i)  make a written record of the Ministerial authorisation;

                             (ii)  give a copy of the written record of the Ministerial authorisation to the responsible entity for the asset; and

                     (d)  do so within 48 hours after the Ministerial authorisation is given.

             (5)  If a Ministerial authorisation is given orally in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure sector asset (other than a critical infrastructure asset);

the Minister must:

                     (c)  make a written record of the Ministerial authorisation; and

                     (d)  give a copy of the written record of the Ministerial authorisation to whichever of the following entities the Minister considers to be most relevant in relation to the Ministerial authorisation:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset; and

                     (e)  do so within 48 hours after the Ministerial authorisation is given.

Notification of Ministerial authorisations given in writing

             (6)  If a Ministerial authorisation is given in writing in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset;

the Minister must:

                     (c)  give a copy of the Ministerial authorisation to the Secretary and the Inspector-General of Intelligence and Security; and

                     (d)  do so within 48 hours after the Ministerial authorisation is given.

             (7)  If a Ministerial authorisation is given in writing in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure asset;

the Minister must:

                     (c)  give a copy of the Ministerial authorisation to the responsible entity for the asset; and

                     (d)  do so within 48 hours after the Ministerial authorisation is given.

             (8)  If a Ministerial authorisation is given in writing in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure sector asset (other than a critical infrastructure asset);

the Minister must:

                     (c)  give a copy of the Ministerial authorisation to whichever of the following entities the Minister considers to be most relevant in relation to the Ministerial authorisation:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset; and

                     (d)  do so within 48 hours after the Ministerial authorisation is given.

35AF   Form of application for Ministerial authorisation

             (1)  The Secretary may apply for a Ministerial authorisation either:

                     (a)  orally; or

                     (b)  in writing.

             (2)  The Secretary must not apply orally for a Ministerial authorisation that relates to:

                     (a)  a cyber security incident; and

                     (b)  an asset;

unless the delay that would occur if the application were to be made in writing would frustrate the effectiveness of:

                     (c)  any directions that may be given under section 35AK or 35AQ in relation to the incident and the asset; or

                     (d)  any requests that may be given under section 35AX in relation to the incident and the asset.

             (3)  If an application for a Ministerial authorisation is made orally, the Secretary must:

                     (a)  do both of the following:

                              (i)  make a written record of the application;

                             (ii)  give a copy of the written record of the application to the Minister; and

                     (b)  do so within 48 hours after the application is made.

35AG   Duration of Ministerial authorisation

Scope

             (1)  This section applies if a Ministerial authorisation is given in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset.

Duration of Ministerial authorisation

             (2)  Subject to this section, the Ministerial authorisation remains in force for the period specified in the Ministerial authorisation (which must not exceed 20 days).

Fresh Ministerial authorisation

             (3)  If a Ministerial authorisation (the original Ministerial authorisation ) is in force, this Act does not prevent the Minister from giving a fresh Ministerial authorisation that:

                     (a)  is in the same, or substantially the same, terms as the original Ministerial authorisation; and

                     (b)  comes into force immediately after the expiry of the original Ministerial authorisation.

             (4)  In deciding whether to give such a fresh Ministerial authorisation, the Minister must have regard to the number of occasions on which Ministerial authorisations have been made in relation to the incident and the asset.

             (5)  Subsection (4) does not limit the matters to which the Minister may have regard to in deciding whether to give a fresh Ministerial authorisation.

35AH   Revocation of Ministerial authorisation

Scope

             (1)  This section applies if a Ministerial authorisation is in force in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset.

Power to revoke Ministerial authorisation

             (2)  The Minister may, in writing, revoke the Ministerial authorisation.

Duty to revoke Ministerial authorisation

             (3)  If the Minister is satisfied that the Ministerial authorisation is no longer required to respond to the incident, the Minister must, in writing, revoke the Ministerial authorisation.

             (4)  If the Secretary is satisfied that the Ministerial authorisation is no longer required to respond to the incident, the Secretary must:

                     (a)  notify the Minister that the Secretary is so satisfied; and

                     (b)  do so soon as practicable after the Secretary becomes so satisfied.

Notification of revocation

             (5)  If the Ministerial authorisation is revoked, the Minister must:

                     (a)  give a copy of the revocation to:

                              (i)  the Secretary; and

                             (ii)  the Inspector-General of Intelligence and Security; and

                            (iii)  each relevant entity for the asset; and

                     (b)  do so within 48 hours after the Ministerial authorisation is revoked.

             (6)  If a Ministerial authorisation is revoked in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure asset;

the Minister must:

                     (c)  give a copy of the revocation to the responsible entity for the asset; and

                     (d)  do so within 48 hours after the Ministerial authorisation is revoked.

             (7)  If a Ministerial authorisation is revoked in relation to:

                     (a)  a cyber security incident; and

                     (b)  a critical infrastructure sector asset (other than a critical infrastructure asset);

the Minister must:

                     (c)  give a copy of the revocation to whichever of the following entities the Minister considers to be most relevant in relation to the Ministerial authorisation:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset; and

                     (d)  do so within 48 hours after the Ministerial authorisation is revoked.

Revocation is not a legislative instrument

             (8)  A revocation of the Ministerial authorisation is not a legislative instrument.

Application of Acts Interpretation Act 1901

             (9)  This section does not, by implication, affect the application of subsection 33(3) of the Acts Interpretation Act 1901 to an instrument made under a provision of this Act (other than this Part).

35AJ   Minister to exercise powers personally

                   A power of the Minister under this Division may only be exercised by the Minister personally.

Division 3 Information gathering directions

35AK   Information gathering direction

Scope

             (1)  This section applies if a Ministerial authorisation given under paragraph 35AB(2)(a) or (b) is in force in relation to:

                     (a)  a cyber security incident; and

                     (b)  an asset.

Direction

             (2)  If:

                     (a)  an entity is a relevant entity for the asset; and

                     (b)  the Secretary has reason to believe that the entity has information that may assist with determining whether a power under this Act should be exercised in relation to the incident and the asset;

the Secretary may direct the entity to:

                     (c)  give any such information to the Secretary; and

                     (d)  do so within the period, and in the manner, specified in the direction.

             (3)  The period specified in the direction must end at or before the end of the period for which the Ministerial authorisation is in force.

             (4)  The Secretary must not give the direction unless the Secretary is satisfied that:

                     (a)  the direction is a proportionate means of obtaining the information; and

                     (b)  compliance with the direction is technically feasible.

             (5)  The Secretary must not give a direction that would require an entity to:

                     (a)  do an act or thing that would be prohibited by section 7 of the Telecommunications (Interception and Access) Act 1979 ; or

                     (b)  do an act or thing that would be prohibited by section 108 of the Telecommunications (Interception and Access) Act 1979 ; or

                     (c)  do an act or thing that would (disregarding this Act) be prohibited by section 276, 277 or 278 of the Telecommunications Act 1997 .

             (6)  Before giving a direction under this section to an entity, the Secretary must consult the entity unless the delay that would occur if the entity were consulted would frustrate the effectiveness of the direction.

Other powers not limited

             (7)  This section does not, by implication, limit a power conferred by another provision of this Act.

35AL   Form of direction

             (1)  A direction under section 35AK may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  The Secretary must not give a direction under section 35AK orally unless the delay that would occur if the direction were to be given in writing would frustrate the effectiveness of the direction.

             (3)  If a direction under section 35AK is given orally to an entity, the Secretary must:

                     (a)  do both of the following:

                              (i)  make a written record of the direction;

                             (ii)  give a copy of the written record of the direction to the entity; and

                     (b)  do so within 48 hours after the direction is given.

35AM   Compliance with an information gathering direction

                   An entity must comply with a direction given to the entity under section 35AK to the extent that the entity is capable of doing so.

Civil penalty:          150 penalty units.

35AN   Self-incrimination etc.

             (1)  An entity is not excused from giving information under section 35AK on the ground that the information might tend to incriminate the entity.

             (2)  If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information under section 35AK, the individual is not excused from giving information under that section on that ground.

Note:          A body corporate is not entitled to claim the privilege against self-exposure to a penalty.

35AP   Admissibility of information etc.

                   If information is given under section 35AK:

                     (a)  the information; or

                     (b)  giving the information;

is not admissible in evidence against an entity:

                     (c)  in criminal proceedings other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act; or

                     (d)  in civil proceedings other than proceedings for recovery of a penalty in relation to a contravention of section 35AM.

Division 4 Action directions

35AQ   Action direction

             (1)  If an entity is a relevant entity for:

                     (a)  a critical infrastructure asset; or

                     (b)  a critical infrastructure sector asset;

the Secretary may give the entity a direction that directs the entity to do, or refrain from doing, a specified act or thing within the period specified in the direction.

             (2)  The Secretary must not give a direction under this section unless the direction:

                     (a)  is identical to a direction specified in a Ministerial authorisation; and

                     (b)  includes a statement to the effect that the direction is authorised by the Ministerial authorisation; and

                     (c)  specifies the date on which the Ministerial authorisation was given.

Note:          A Ministerial authorisation must not be given unless the Minister is satisfied that the direction is reasonably necessary for the purposes of responding to a cyber security incident—see section 35AB.

             (3)  The period specified in the direction must end at or before the end of the period for which the Ministerial authorisation is in force.

             (4)  A direction under this section is subject to such conditions (if any) as are specified in the direction.

             (5)  The Secretary must not give a direction under this section that would require an entity to give information to the Secretary.

Other powers not limited

             (6)  This section does not, by implication, limit a power conferred by another provision of this Act.

35AR   Form of direction

             (1)  A direction under section 35AQ may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  The Secretary must not give a direction under section 35AQ orally unless the delay that would occur if the direction were to be given in writing would frustrate the effectiveness of the direction.

             (3)  If a direction under section 35AQ is given orally to an entity, the Secretary must:

                     (a)  do both of the following:

                              (i)  make a written record of the direction;

                             (ii)  give a copy of the written record of the direction to the entity; and

                     (b)  do so within 48 hours after the direction is given.

35AS   Revocation of direction

Scope

             (1)  This section applies if:

                     (a)  a direction is in force under section 35AQ in relation to a Ministerial authorisation; and

                     (b)  the direction was given to a particular entity.

Power to revoke direction

             (2)  The Secretary may, by written notice given to the entity, revoke the direction.

Duty to revoke direction

             (3)  If the Secretary is satisfied that the direction is no longer required to respond to the cyber security incident to which the Ministerial authorisation relates, the Secretary must, by written notice given to the entity, revoke the direction.

Automatic revocation of direction

             (4)  If the Ministerial authorisation ceases to be in force, the direction is revoked.

Application of Acts Interpretation Act 1901

             (5)  This section does not, by implication, affect the application of subsection 33(3) of the Acts Interpretation Act 1901 to an instrument made under a provision of this Act (other than this Part).

35AT   Compliance with direction

             (1)  An entity commits an offence if:

                     (a)  the entity is given a direction under section 35AQ; and

                     (b)  the entity engages in conduct; and

                     (c)  the entity’s conduct breaches the direction.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  Subsection (1) does not apply if the entity took all reasonable steps to comply with the direction.

35AU   Directions prevail over inconsistent critical infrastructure risk management programs

                   If a critical infrastructure risk management program is applicable to an entity, the program has no effect to the extent to which it is inconsistent with a direction given to the entity under section 35AQ.

35AV   Directions prevail over inconsistent obligations

                   If an obligation under this Act is applicable to an entity, the obligation has no effect to the extent to which it is inconsistent with a direction given to the entity under section 35AQ.

35AW   Liability

             (1)  An entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with a direction given under section 35AQ.

             (2)  An officer, employee or agent of an entity is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the entity as mentioned in subsection (1).

Division 5 Intervention requests

35AX   Intervention request

             (1)  The Secretary may give the chief executive of the authorised agency a request that the authorised agency do one or more specified acts or things within the period specified in the request.

             (2)  The Secretary must not give a request under this section unless the request:

                     (a)  is identical to a request specified in a Ministerial authorisation; and

                     (b)  includes a statement to the effect that the request is authorised by the Ministerial authorisation; and

                     (c)  specifies the date on which the Ministerial authorisation was given.

Note:          A Ministerial authorisation must not be given unless the Minister is satisfied that the request is reasonably necessary for the purposes of responding to a cyber security incident—see section 35AB.

             (3)  The period specified in the request must end at or before the end of the period for which the Ministerial authorisation is in force.

             (4)  A request under this section is subject to such conditions (if any) as are specified in the request.

             (5)  A request under this section does not extend to:

                     (a)  doing an act or thing that would be prohibited by section 7 of the Telecommunications (Interception and Access) Act 1979 ; or

                     (b)  doing an act or thing that would be prohibited by section 108 of the Telecommunications (Interception and Access) Act 1979 ; or

                     (c)  doing an act or thing that would (disregarding this Act) be prohibited by section 276, 277 or 278 of the Telecommunications Act 1997 .

Other powers not limited

             (6)  This section does not, by implication, limit a power conferred by another provision of this Act.

35AY   Form and notification of request

             (1)  A request under section 35AX may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  The Secretary must not give a request under section 35AX orally unless the delay that would occur if the request were to be given in writing would frustrate the effectiveness of the request.

Notification of requests given orally

             (3)  If a request under section 35AX is given orally, the Secretary must:

                     (a)  do both of the following:

                              (i)  make a written record of the request;

                             (ii)  give a copy of the written record of the request to the chief executive of the authorised agency; and

                     (b)  do so within 48 hours after the request is given.

             (4)  If a request under section 35AX is given orally in relation to a critical infrastructure asset, the Secretary must:

                     (a)  do both of the following:

                              (i)  make a written record of the request;

                             (ii)  give a copy of the written record of the request to the responsible entity for the asset; and

                     (b)  do so within 48 hours after the request is given.

             (5)  If a request under section 35AX is given orally in relation to a critical infrastructure sector asset (other than a critical infrastructure asset), the Secretary must:

                     (a)  make a written record of the request; and

                     (b)  give a copy of the written record of the request to whichever of the following entities the Secretary considers to be most relevant in relation to the request:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset; and

                     (c)  do so within 48 hours after the request is given.

Notification of requests given in writing

             (6)  If a request under section 35AX is given in writing, the Secretary must:

                     (a)  give a copy of the request to the chief executive of the authorised agency; and

                     (b)  do so within 48 hours after the request is made.

             (7)  If a request under section 35AX is given in writing in relation to a critical infrastructure asset, the Secretary must:

                     (a)  give a copy of the request to the responsible entity for the asset; and

                     (b)  do so within 48 hours after the request is given.

             (8)  If a request under section 35AX is given in writing in relation to a critical infrastructure sector asset (other than a critical infrastructure asset), the Secretary must:

                     (a)  give a copy of the request to whichever of the following entities the Secretary considers to be most relevant in relation to the request:

                              (i)  the owner, or each of the owners, of the asset;

                             (ii)  the operator, or each of the operators, of the asset; and

                     (b)  do so within 48 hours after the request is given.

35AZ   Compliance with request

             (1)  The authorised agency is authorised to do an act or thing in compliance with a request under section 35AX.

             (2)  An act or thing done by the authorised agency in compliance with a request under section 35AX is taken to be done in the performance of the function conferred on the authorised agency by paragraph 7(1)(f) of the Intelligence Services Act 2001 .

35BA   Revocation of request

Scope

             (1)  This section applies if a request is in force under section 35AX in relation to a Ministerial authorisation.

Power to revoke request

             (2)  The Secretary may, by written notice given to the chief executive of the authorised agency, revoke the request.

Duty to revoke request

             (3)  If the Secretary is satisfied that the request is no longer required to respond to the cyber security incident to which the Ministerial authorisation relates, the Secretary must, by written notice given to the chief executive of the authorised agency, revoke the request.

Automatic revocation of request

             (4)  If the Ministerial authorisation ceases to be in force, the request is revoked.

Notification of revocation of request

             (5)  If a request under section 35AX is revoked, the Secretary must:

                     (a)  give a copy of the revocation of the request to the chief executive of the authorised agency and each relevant entity for the asset; and

                     (b)  do so as soon as practicable after the revocation.

Application of Acts Interpretation Act 1901

             (6)  This section does not, by implication, affect the application of subsection 33(3) of the Acts Interpretation Act 1901 to an instrument made under a provision of this Act (other than this Part).

35BB   Relevant entity to assist the authorised agency

             (1)  If:

                     (a)  a request is in force under section 35AX in relation to a critical infrastructure asset or a critical infrastructure sector asset; and

                     (b)  an entity is a relevant entity for the asset;

an approved staff member of the authorised agency may require the entity to:

                     (c)  provide the approved staff member with access to premises for the purposes of the authorised agency complying with the request; or

                     (d)  provide the authorised agency with specified information or assistance that is reasonably necessary to allow the authorised agency to comply with the request.

Note:          See also section 149.1 of the Criminal Code (which deals with obstructing and hindering Commonwealth public officials).

             (2)  Paragraph (1)(c) does not apply to premises that are used solely or primarily as a residence.

             (3)  An entity must comply with a requirement under subsection (1).

Civil penalty:          150 penalty units.

Liability

             (4)  An entity is not liable to an action or other proceeding for damages for, or in relation to, an act done or omitted in good faith in compliance with a requirement under subsection (1).

             (5)  An officer, employee or agent of an entity is not liable to an action or other proceeding for damages for, or in relation to, an act done or omitted in good faith in connection with an act done or omitted by the entity as mentioned in subsection (4).

35BC   Constable may assist the authorised agency

             (1)  If an entity refuses or fails to provide an approved staff member of the authorised agency with access to premises when required to do so under subsection 35BB(1):

                     (a)  the approved staff member may enter the premises for the purposes of the authorised agency complying with the request mentioned in that subsection; and

                     (b)  a constable may:

                              (i)  assist the approved staff member in gaining access to the premises by using reasonable force against property; and

                             (ii)  if necessary for the purposes of so assisting the approved staff member—enter the premises.

             (2)  If an approved staff member of the authorised agency has entered premises for the purposes of the authorised agency complying with a request under section 35AX, a constable may:

                     (a)  assist the authorised agency in complying with the request by using reasonable force against property located on the premises; and

                     (b)  for the purposes of so assisting the authorised agency—enter the premises.

35BD   Removal and return of computers etc.

Removal of computers etc.

             (1)  If:

                     (a)  in compliance with a request under section 35AX, the authorised agency adds or connects a computer or device to a computer network; and

                     (b)  at a time when the request is in force, an approved staff member of the authorised agency forms a reasonable belief that the addition or connection of the computer or device is no longer required for the purposes of responding to the cyber security incident to which the relevant Ministerial authorisation relates;

the authorised agency must remove or disconnect the computer or device as soon as practicable after the approved staff member forms that belief.

             (2)  If:

                     (a)  in compliance with a request under section 35AX, the authorised agency adds or connects a computer or device to a computer network; and

                     (b)  the request ceases to be in force;

the authorised agency must remove or disconnect the computer or device as soon as practicable after the request ceases to be in force.

Return of computers etc.

             (3)  If:

                     (a)  in compliance with a request under section 35AX, the authorised agency removes a computer or device; and

                     (b)  at a time when the request is in force, an approved staff member of the authorised agency forms a reasonable belief that the removal of the computer or device is no longer required for the purposes of responding to the cyber security incident to which the relevant Ministerial authorisation relates;

the authorised agency must return the computer or device as soon as practicable after the approved staff member forms that belief.

             (4)  If:

                     (a)  in compliance with a request under section 35AX, the authorised agency removes a computer or device; and

                     (b)  the request ceases to be in force;

the authorised agency must return the computer or device as soon as practicable after the request ceases to be in force.

35BE   Use of force against an individual not authorised

                   This Division does not authorise the use of force against an individual.

35BF   Liability

                   Each of the following:

                     (a)  the chief executive of the authorised agency;

                     (b)  an approved staff member of the authorised agency;

                     (c)  a constable;

is not liable to an action or other proceeding (whether civil or criminal) for, or in relation to, an act or matter done or omitted to be done in the exercise of any power or authority conferred by this Division.

35BG   Evidentiary certificates

             (1)  The Inspector-General of Intelligence and Security may issue a written certificate setting out any facts relevant to the question of whether anything done, or omitted to be done, by the authorised agency, or an approved staff member of the authorised agency, was done, or omitted to be done, in the exercise of any power or authority conferred by this Division.

             (2)  A certificate issued under subsection (1) is admissible in evidence in any proceedings as prima facie evidence of the matters stated in the certificate.

35BH   Chief executive of the authorised agency to report to the Defence Minister and the Minister

             (1)  If:

                     (a)  the Secretary gives a request under section 35AX that was authorised by a Ministerial authorisation; and

                     (b)  the authorised agency does one or more acts or things in compliance with the request;

the chief executive of the authorised agency must:

                     (c)  prepare a written report that:

                              (i)  sets out details of those acts or things; and

                             (ii)  explains the extent to which doing those acts or things has amounted to an effective response to the cyber security incident to which the Ministerial authorisation relates; and

                     (d)  give a copy of the report to the Defence Minister; and

                     (e)  give a copy of the report to the Minister.

             (2)  The chief executive of the authorised agency must comply with subsection (1) as soon as practicable after the end of the period specified in the request and, in any event, within 3 months after the end of the period specified in the request.

35BJ   Approved staff members of the authorised agency

             (1)  The chief executive of the authorised agency may, in writing, declare that a specified staff member of the authorised agency is an approved staff member of the authorised agency for the purposes of this Act.

             (2)  A declaration under subsection (1) is not a legislative instrument.

46  Section 36 (paragraph beginning “Information”)

Repeal the paragraph.

47  At the end of section 36

Add:

Note:          Protected information is defined in section 5.

48  Subparagraph 42(2)(a)(viii)

Omit “industry for the critical infrastructure asset”, substitute “critical infrastructure sector”.

49  Paragraph 42(2)(b)

Omit “industry for the critical infrastructure asset”, substitute “critical infrastructure sector”.

50  After section 43

Insert:

43A   Authorised disclosure to IGIS official

                   The Secretary may:

                     (a)  disclose protected information to an IGIS official for the purposes of exercising powers, or performing duties or functions, as an IGIS official; and

                     (b)  make a record of or use protected information for the purpose of that disclosure.

Note:          This section is an authorisation for the purposes of other laws, including the Australian Privacy Principles.

43B   Authorised use and disclosure—Ombudsman official

                   Protected information may be disclosed by an Ombudsman official to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Note:          This section is an authorisation for the purposes of other laws, including the Australian Privacy Principles.

43C   Authorised use and disclosure—IGIS official

                   Protected information may be disclosed by an IGIS official to an Ombudsman official for the purposes of the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.

Note:          This section is an authorisation for the purposes of other laws, including the Australian Privacy Principles.

43D   Authorised use and disclosure—ASD

                   The Director-General of ASD or a staff member of ASD may make a record of, use or disclose protected information for the purposes of the performance of the functions of ASD set out in section 7 of the Intelligence Services Act 2001 .

Note:          This section is an authorisation for the purposes of other laws, including the Australian Privacy Principles.

51  Paragraph 45(1)(a)

Repeal the paragraph, substitute:

                     (a)  the entity:

                              (i)  obtains information; or

                             (ii)  generates information for the purposes of complying with this Act; and

52  Paragraph 45(1)(d)

Omit “subsection 51(3) or 52(4)”, substitute “a notification provision”.

53  Paragraph 46(1)(a)

Omit “subsection 51(3) or 52(4)”, substitute “a notification provision”.

53A  Subsection 46(2)

After “critical infrastructure asset”, insert “or of the fact that an asset is declared under section 52B to be a system of national significance”.

54  Subsection 46(3)

Omit “subsection 51(3) or 52(4)”, substitute “a notification provision”.

54A  Section 47

Omit “Except where it is necessary to do so for the purposes of giving effect to this Act, an entity is not”, substitute “(1) An entity is not (subject to subsection (2))”.

54B  At the end of section 47

Add:

             (2)  Subsection (1) does not prevent an entity from being required to disclose protected information, or to produce a document containing protected information, if it is necessary to do so for the purposes of giving effect to:

                     (a)  this Act; or

                     (b)  the Inspector-General of Intelligence and Security Act 1986 , or any other Act that confers functions, powers or duties on the Inspector-General of Intelligence and Security; or

                     (c)  a legislative instrument made under an Act mentioned in paragraph (a) or (b).

55  At the end of section 48

Add:

Infringement notices may be given under Part 5 of the Regulatory Powers Act for alleged contraventions of certain provisions of this Act.

A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

       (a)     an offence against section 35AT or 45 of this Act; or

      (b)     a civil penalty provision of this Act.

A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

       (a)     an offence against section 35AT or 45 of this Act; or

      (b)     a civil penalty provision of this Act.

56  Subsections 49(2) and (3)

Repeal the subsections, substitute:

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, as that Part applies in relation to a civil penalty provision of this Act, each of the following persons is an authorised applicant:

                     (a)  the Secretary;

                     (b)  a person who is appointed under subsection (3).

             (3)  The Secretary may, by writing, appoint a person who:

                     (a)  is the chief executive officer (however described) of a relevant Commonwealth regulator; or

                     (b)  is an SES employee, or an acting SES employee, in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (c)  holds, or is acting in, a position in a relevant Commonwealth regulator that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant for the purposes of Part 4 of the Regulatory Powers Act, as that Part applies in relation to a civil penalty provision of this Act.

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

Authorised person

          (3A)  For the purposes of Parts 6 and 7 of the Regulatory Powers Act, as those Parts apply in relation to a civil penalty provision of this Act, each of the following persons is an authorised applicant:

                     (a)  the Secretary;

                     (b)  a person who is appointed under subsection (3B).

          (3B)  The Secretary may, by writing, appoint a person who:

                     (a)  is the chief executive officer (however described) of a relevant Commonwealth regulator; or

                     (b)  is an SES employee, or an acting SES employee, in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (c)  holds, or is acting in, a position in a relevant Commonwealth regulator that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant for the purposes of Parts 6 and 7 of the Regulatory Powers Act, as those Parts apply in relation to a civil penalty provision of this Act.

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

57  At the end of Part 5

Add:

Division 3 Monitoring and investigation powers

49A   Monitoring powers

Provisions subject to monitoring

             (1)  A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

                     (a)  an offence against section 35AT or 45; or

                     (b)  a civil penalty provision of this Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.

Information subject to monitoring

             (2)  Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Authorised applicant

             (3)  For the purposes of Part 2 of the Regulatory Powers Act, a person who is appointed under subsection (4) is an authorised applicant in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

             (4)  The Secretary may, by writing, appoint a person who:

                     (a)  is an SES employee, or an acting SES employee, in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (b)  holds, or is acting in, a position in a relevant Commonwealth regulator that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

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

Authorised person

             (5)  For the purposes of Part 2 of the Regulatory Powers Act, a person who is appointed under subsection (6) is an authorised person in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

             (6)  The Secretary may, by writing, appoint a person who is:

                     (a)  an APS employee in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (b)  an officer or employee of a relevant Commonwealth regulator;

to be an authorised person in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Issuing officer

             (7)  For the purposes of Part 2 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

Relevant chief executive

             (8)  For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

             (9)  The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (10) to a person who is an SES employee, or an acting SES employee, in the Department.

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

           (10)  The powers and functions that may be delegated are:

                     (a)  powers under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2); and

                     (b)  powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a).

           (11)  A person exercising powers or performing functions under a delegation under subsection (9) must comply with any directions of the relevant chief executive.

Relevant court

           (12)  For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2):

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia; and

                     (c)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Premises

           (13)  An authorised person must not enter premises under Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2), if the premises are used solely or primarily as a residence.

Person assisting

           (14)  An authorised person may be assisted by other persons in exercising powers, or performing functions or duties, under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2).

External Territories

           (15)  Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and information mentioned in subsection (2), extends to every external Territory .

49B   Investigation powers

Provisions subject to investigation

             (1)  A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

                     (a)  an offence against section 35AT or 45; or

                     (b)  a civil penalty provision of this Act.

Authorised applicant

             (2)  For the purposes of Part 3 of the Regulatory Powers Act, a person who is appointed under subsection (3) is an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1).

             (3)  The Secretary may, by writing, appoint a person who:

                     (a)  is an SES employee, or an acting SES employee, in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (b)  holds, or is acting in, a position in a relevant Commonwealth regulator that is equivalent to, or higher than, a position occupied by an SES employee;

to be an authorised applicant in relation to evidential material that relates to a provision mentioned in subsection (1).

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

Authorised person

             (4)  For the purposes of Part 3 of the Regulatory Powers Act, a person who is appointed under subsection (5) is an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

             (5)  The Secretary may, by writing, appoint a person who is:

                     (a)  an APS employee in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (b)  an officer or employee of a relevant Commonwealth regulator;

to be an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

             (6)  For the purposes of Part 3 of the Regulatory Powers Act, a magistrate is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1).

Relevant chief executive

             (7)  For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

             (8)  The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (9) to a person who is an SES employee or an acting SES employee in the Department.

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

             (9)  The powers and functions that may be delegated are:

                     (a)  powers under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1); and

                     (b)  powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a).

           (10)  A person exercising powers or performing functions under a delegation under subsection (8) must comply with any directions of the relevant chief executive.

Relevant court

           (11)  For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia;

                     (c)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.

Person assisting

           (12)  An authorised person may be assisted by other persons in exercising powers, or performing functions or duties, under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

External Territories

           (13)  Part 3 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

Division 4 Infringement notices

49C   Infringement notices

Provisions subject to an infringement notice

             (1)  A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note:          Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, a person authorised under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1).

             (3)  The Secretary may, by writing, authorise a person who:

                     (a)  is an SES employee, or an acting SES employee, in:

                              (i)  the Department; or

                             (ii)  a relevant Commonwealth regulator; or

                     (b)  holds, or is acting in, a position in a relevant Commonwealth regulator that is equivalent to, or higher than, a position occupied by an SES employee;

to be an infringement officer in relation to the provisions mentioned in subsection (1).

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

Relevant chief executive

             (4)  For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).

             (5)  The relevant chief executive may, in writing, delegate any or all of the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act to a person who is an SES employee or an acting SES employee in the Department.

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

             (6)  A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.

External Territories

             (7)  Part 5 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

58  Paragraphs 51(1)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  the asset relates to a critical infrastructure sector; and

                     (c)  the Minister is satisfied that the asset is critical to:

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

                             (ii)  the defence of Australia; or

                            (iii)  national security; and

                     (d)  there would be a risk to:

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

                             (ii)  the defence of Australia; or

                            (iii)  national security;

                            if it were publically known that the asset is a critical infrastructure asset.

59  Subsection 51(1) (note 1)

Repeal the note.

60  Subsection 51(1) (note 2)

Omit “Note 2”, substitute “Note”.

61  After subsection 51(2)

Insert:

          (2A)  The declaration may do any or all of the following:

                     (a)  determine that Part 2 applies to the asset;

                     (b)  determine that Part 2A applies to the asset;

                     (c)  determine that Part 2B applies to the asset.

62  Paragraph 51(3)(b)

Repeal the paragraph, substitute:

                     (b)  if the asset is a tangible asset located (wholly or partly) in a State, the Australian Capital Territory or the Northern Territory—the First Minister of the State, the Australian Capital Territory or the Northern Territory, as the case requires.

63  Subsection 51(4)

Repeal the subsection.

64  After section 51

Insert:

51A   Consultation—declaration

             (1)  Before making a declaration under section 51 that specifies an entity as the responsible entity for an asset, the Minister must give the entity a notice:

                     (a)  setting out the proposed declaration; and

                     (b)  inviting the entity to make submissions to the Minister about the proposed declaration within:

                              (i)  28 days after the notice is given; or

                             (ii)  if a shorter period is specified in the notice—that shorter period.

             (2)  The Minister must consider any submissions received within:

                     (a)  the 28-day period mentioned in subparagraph (1)(b)(i); or

                     (b)  if a shorter period is specified in the notice—that shorter period.

             (3)  The Minister must not specify a shorter period in the notice unless the Minister is satisfied that the shorter period is necessary due to urgent circumstances.

             (4)  The notice must set out the reasons for making the declaration, unless the Minister is satisfied that doing so would be prejudicial to security.

65  Subsection 52(5)

Repeal the subsection.

66  After Part 6

Insert:

Part 6A Declaration of systems of national significance by the Minister

Division 1 Simplified outline of this Part

52A   Simplified outline of this Part

The Minister may privately declare a critical infrastructure asset to be a system of national significance.

The Minister must notify each reporting entity for an asset that is a declared system of national significance.

If a reporting entity for an asset that is a declared system of national significance ceases to be such a reporting entity, or becomes aware of another reporting entity for the asset, the entity must notify the Secretary.

Note:          It is an offence to disclose that an asset has been declared a system of national significance (see section 45).

Division 2 Declaration of systems of national significance by the Minister

52B   Declaration of systems of national significance by the Minister

             (1)  The Minister may, in writing, declare a particular asset to be a system of national significance if:

                     (a)  the asset is a critical infrastructure asset; and

                     (b)  the Minister is satisfied that the asset is of national significance.

             (2)  In determining whether an asset is of national significance for the purposes of subsection (1), the Minister must have regard to:

                     (a)  the consequences that would arise for:

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

                             (ii)  the defence of Australia; or

                            (iii)  national security;

                            if a hazard were to occur that had a significant relevant impact on the asset; and

                     (b)  if the Minister is aware of one or more interdependencies between the asset and one or more other critical infrastructure assets—the nature and extent of those interdependencies; and

                     (c)  such other matters (if any) as the Minister considers relevant.

             (3)  The Minister must notify the following of the declaration, in writing, within 30 days after making the declaration in relation to an asset:

                     (a)  each reporting entity for the asset;

                     (b)  if the asset is a tangible asset located (wholly or partly) in a State, the Australian Capital Territory or the Northern Territory—the First Minister of the State, the Australian Capital Territory or the Northern Territory, as the case requires.

             (4)  A declaration under subsection (1) is not a legislative instrument.

             (5)  To avoid doubt, an asset may be the subject of a declaration under subsection (1) even if the asset is not a system.

52C   Consultation—declaration

             (1)  Before making a declaration under section 52B in relation to an asset, the Minister must give the responsible entity for the asset a notice:

                     (a)  setting out the proposed declaration; and

                     (b)  inviting the entity to make submissions to the Minister about the proposed declaration within:

                              (i)  28 days after the notice is given; or

                             (ii)  if a shorter period is specified in the notice—that shorter period.

             (2)  The Minister must consider any submissions received within:

                     (a)  the 28-day period mentioned in subparagraph (1)(b)(i); or

                     (b)  if a shorter period is specified in the notice—that shorter period.

             (3)  The Minister must not specify a shorter period in the notice unless the Minister is satisfied that the shorter period is necessary due to urgent circumstances.

             (4)  The notice must set out the reasons for making the declaration, unless the Minister is satisfied that doing so would be prejudicial to security.

52D   Notification of change to reporting entities for asset

Scope

             (1)  This section applies if a reporting entity (the first entity ) for an asset declared under subsection 52B(1) to be a system of national significance:

                     (a)  ceases to be a reporting entity for the asset; or

                     (b)  becomes aware of another reporting entity for the asset (whether or not as a result of the first entity ceasing to be a reporting entity).

Notification

             (2)  The first entity must, within 30 days, notify the Secretary of the following:

                     (a)  the fact in paragraph (1)(a) or (b) (as the case requires);

                     (b)  if another entity is a reporting entity for the asset—the name of each other entity and the address of each other entity’s head office or principal place of business (to the extent known by the first entity).

Civil penalty:          150 penalty units.

             (3)  The first entity must use the entity’s best endeavours to determine the name and relevant address of any other entity for the purposes of paragraph (2)(b).

             (4)  If the Secretary is notified of another entity under paragraph (2)(b), the Secretary must notify the other entity of the declaration under subsection 52B(1), in writing, within 30 days after being notified under that paragraph.

52E   Review of declaration

Scope

             (1)  This section applies if an asset is declared under subsection 52B(1) to be a system of national significance.

Request

             (2)  The responsible entity for the asset may, by written notice given to the Secretary, request the Secretary to review whether the asset is of national significance.

Requirement

             (3)  The Secretary must, within 60 days after the request is given:

                     (a)  review whether the asset is of national significance; and

                     (b)  give the Minister:

                              (i)  a report of the review; and

                             (ii)  a statement setting out the Secretary’s findings.

             (4)  The review must be undertaken in consultation with the responsible entity for the asset.

             (5)  In reviewing whether the asset is of national significance, the Secretary must have regard to:

                     (a)  the consequences that would arise for:

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

                             (ii)  the defence of Australia; or

                            (iii)  national security;

                            if a hazard were to occur that had a significant relevant impact on the asset; and

                     (b)  if the Secretary is aware of one or more interdependencies between the asset and one or more other critical infrastructure assets—the nature and extent of those interdependencies; and

                     (c)  such other matters (if any) as the Secretary considers relevant.

Limit

             (6)  The responsible entity for the asset must not make more than one request under subsection (2) in relation to the asset during a 12-month period.

52F   Revocation of determination

Scope

             (1)  This section applies if:

                     (a)  a declaration under subsection 52B(1) is in force in relation to an asset; and

                     (b)  the Minister is no longer satisfied that the asset is of national significance.

Duty to revoke declaration

             (2)  The Minister must, in writing, revoke the declaration.

Revocation is not a legislative instrument

             (3)  A revocation of the declaration is not a legislative instrument.

Application of Acts Interpretation Act 1901

             (4)  This section does not, by implication, affect the application of subsection 33(3) of the Acts Interpretation Act 1901 to an instrument made under a provision of this Act.

67  Subsection 59(1)

After “this Act”, insert “(other than Part 3A)”.

68  Division 4 of Part 7 (at the end of the heading)

Add “ etc. ”.

69  At the end of subsection 60(2)

Add:

             ; and (f)  the number of annual reports given under section 30AG during the financial year; and

                     (g)  the number of annual reports given under section 30AG during the financial year that included a statement to the effect that a critical infrastructure risk management program was up to date at the end of the financial year; and

                     (h)  the number of cyber security incidents reported during the financial year under section 30BC; and

                      (i)  the number of cyber security incidents reported during the financial year under 30BD; and

                      (j)  the number of notices given to entities under section 30CB during the financial year; and

                     (k)  the number of notices given to entities under section 30CM during the financial year; and

                      (l)  the number of notices given to entities under section 30CU during the financial year; and

                    (m)  the number of notices given to entities under Division 5 of Part 2C during the financial year; and

                     (n)  the number of Ministerial authorisations given under section 35AB during the financial year; and

                     (o)  the number of Ministerial authorisations given under paragraph 35AB(2)(a) or (b) during the financial year; and

                     (p)  the number of Ministerial authorisations given under paragraph 35AB(2)(c) or (d) during the financial year; and

                     (q)  the number of Ministerial authorisations given under paragraph 35AB(2)(e) or (f) during the financial year; and

                      (r)  the number of declarations of assets as systems of national significance that were made under section 52B during the financial year.

70  After section 60

Insert:

60AA   Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from an entity otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the entity.

             (2)  If the Commonwealth and the entity do not agree on the amount of the compensation, the entity may institute proceedings in:

                     (a)  the Federal Court of Australia; or

                     (b)  the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

60AB   Service of notices, directions and instruments by electronic means

                   Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 do not apply to a notice, direction or instrument under:

                     (a)  this Act; or

                     (b)  the rules; or

                     (c)  the Regulatory Powers Act, so far as that Act relates to this Act.

Note:          Paragraphs 9(1)(d) and (2)(d) of the Electronic Transactions Act 1999 deal with the consent of the recipient of information to the information being given by way of electronic communication.

Part 2 Application provisions

71  Application—subsections 9(3) and (4) of the Security of Critical Infrastructure Act 2018

The amendments of subsections 9(3) and (4) of the Security of Critical Infrastructure Act 2018 made by this Schedule apply in relation to rules made after the commencement of this item.

72  Application—section 51 of the Security of Critical Infrastructure Act 2018

The amendments of section 51 of the Security of Critical Infrastructure Act 2018 made by this Schedule apply in relation to a declaration made after the commencement of this item.

Part 3 Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020

Security of Critical Infrastructure Act 2018

73  Paragraphs 49A(12)(b) and 49B(11)(b)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

Part 4 Amendments contingent on the commencement of the National Emergency Declaration Act 2020

National Emergency Declaration Act 2020

74  Section 10 (after paragraph (za) of the definition of national emergency law )

Insert:

                  (zaa)  section 35AB of the Security of Critical Infrastructure Act 2018 ;

Security of Critical Infrastructure Act 2018

75  After subsection 35AB(1)

Insert:

          (1A)  This section also applies if the Minister is satisfied that:

                     (a)  a cyber security incident:

                              (i)  has occurred; or

                             (ii)  is occurring; or

                            (iii)  is imminent; and

                     (b)  the incident has had, is having, or is likely to have, a relevant impact on a critical infrastructure asset (the primary asset ); and

                     (c)  the incident relates to an emergency specified in a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020 ) that is in force; and

                     (d)  no existing regulatory system of the Commonwealth, a State or a Territory could be used to provide a practical and effective response to the incident.