Commonwealth of Australia Explanatory Memoranda

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SECURITY OF CRITICAL INFRASTRUCTURE (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2017

                                2016 - 2017 - 2018




       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                     SENATE




 SECURITY OF CRITICAL INFRASTRUCTURE (CONSEQUENTIAL AND
             TRANSITIONAL PROVISIONS) BILL 2017




             SUPPLEMENTARY EXPLANATORY MEMORANDUM




             Amendments to be Moved on Behalf of the Government




                           (Circulated by authority of the
Minister for Home Affairs and the Minister for Immigration and Border Protection, the
                           Honourable Peter Dutton MP)
Amendments to the Security of Critical Infrastructure (Consequential and Transitional
Provisions) Bill 2017

(Government)

OUTLINE

The purpose of the Security of Critical Infrastructure (Consequential and Transitional
Provisions) Bill 2017 is to amend the Australian Security Intelligence Organisation Act 1979
(ASIO Act) and the Foreign Acquisitions and Takeovers Act 1975 (FATA Act) to reflect the
proposed operation of the Security of Critical Infrastructure Bill 2017.

The amendments proposed to be moved by the Government to the Bill would implement
recommendations made by the Parliamentary Joint Committee on Intelligence and Security in
their report on the Bill dated 15 March 2018.

The amendments would make a technical correction to ensure that any ASIO adverse security
assessment made in connection with a Ministerial directions power at clause 32 of the
Security of Critical Infrastructure Bill 2017 would be subject to notification requirements
under section 38A of the ASIO Act, rather than section 38. This will ensure that there is no
Ministerial power to withhold the notice from the assessed party.

FINANCIAL IMPACT

There is nil financial impact associated with the Bill or these amendments.




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AMENDMENTS TO THE SECURITY OF CRITICAL INFRASTRUCTURE
(CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2017


NOTES ON AMENDMENTS


Amendment 1          Schedule 1, page 3 (after line 10), after item 1 - 1A Section 38A (at
                     the end of the heading)

1.   This amendment inserts the new words, 'or directions under the Security of Critical
     Infrastructure Act' to the end of the heading at section 38A of the ASIO Act. This
     ensures the heading for section 38A of the ASIO Act accurately reflects that the section
     will also apply where an adverse security assessment relates to the directions power at
     clause 32(2) of the Security of Critical Infrastructure Bill 2017, in addition to (as
     currently drafted) '[n]otification where assessment relates to Telecommunications Act'.

Amendment 2          Schedule 1, page 3 (after line 10), after item 1 - after subsection
                     38A(1)

2.   Where an adverse or qualified security assessment is made in respect of a person (for
     purposes connected with certain provisions of the Telecommunications Act), section
     38A of the ASIO Act requires the Attorney-General, within 14 days of receiving the
     assessment, to give the assessed person a notice in writing, including a copy of the
     assessment and information on his or her right to seek merits review. The Attorney-
     General may not withhold such a notice, but may redact any part of the assessment, the
     disclosure of which, he or she is satisfied would be prejudicial to the interests of
     security.

3.   This amendment inserts new subsection 38A(1A) after subsection 38A(1) in the ASIO
     Act to ensure that the notification requirements in section 38A (outlined above) also
     apply to an adverse security assessment given in connection with clause 32(2) of the
     Security of Critical Infrastructure Bill. This amendment aligns the notice requirements
     of an adverse security assessment relating to the directions power in the Security of
     Critical Infrastructure Bill with those provided in relation to similar directions powers
     in the Telecommunications Act.




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