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Security Legislation Amendment (Critical Infrastructure) Bill 2020; and Review of the Security of Critical Infrastructure Act 2018 (Cth)

The submission to the Parliamentary Joint Committee on Intelligence and Security (Committee) in response to the review of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 (Bill), which proposes to amend the Security of Critical Infrastructure Act 2018 (Cth) (SCI Act) was prepared by the Law Council of Australia. The Bill is substantially the same as an exposure draft version of the Bill (ED Bill) released by the Department of Home Affairs (Department) in November 2020.

The Committee is concurrently undertaking a statutory review of the SCI Act. While the Law Council’s submission focuses on the Bill, the issues raised about secrecy provisions and oversight arrangements are equally relevant to the existing SCI regime. The issues raised in the Law Council’s submission of 3 December 2020 to the Committee’s statutory review of the telecommunications sector security regime (TSSR) in Part 14 of the Telecommunications Act 1997 (Cth) (Telecommunications Act) are also relevant, with respect to risks of duplication and inconsistency between the SCI regime and the TSSR.

The Law Council acknowledges the policy objective to create a national regulatory framework for the security of privately or State or Territory owned critical infrastructure. The Law Council also welcomes the stated intent to ensure that the regulatory burden of the new regime is proportionate. It supports the government’s stated commitment to taking a risk-based and measured approach to enforcement and intervention in responding to cyber security incidents affecting critical infrastructure assets.

The Law Council seeks to ensure that these objectives are given full legislative expression, and to avoid unintended consequences. The SCI Act should contain safeguards which require the scheme to operate in a proportionate and accountable way, rather than this outcome being reliant on executive discretion. Key issues include:

You can read the full submission below. 
 

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