Labor members agree with the Committee’s report and endorse each of its recommendations.
We note that Part 3A of the bill will, if the Committee’s recommendations are fully implemented, form the core part of “Bill One” – and, as recommended by the Committee, Bill One should be passed by the Parliament.
While Labor members support this approach, we share the concerns expressed by the Law Council of Australia and other submitters about the absence of independent authorisation, and the wholesale exclusion of statutory judicial review, in relation to the measures in Part 3A.
The Committee has not made any recommendations to address those concerns directly.
Under Part 3A of the bill, the Minister may (among other things) authorise the Secretary to give “information gathering” or “action” directions to the owners or operators of a critical infrastructure asset in response to a cyber security incident. The Minister may also authorise the Secretary to give an “intervention request” to the Australian Signals Directorate.
Under the bill, there is no independent issuing process for ministerial authorisations to exercise powers of intervention in cyber security incidents – and all decisions made under Part 3A would be excluded from judicial review under the Administrative Decisions (Judicial Review) Act 1977.
Labor members see merit in recommendations by the Law Council and other submitters that “[c]onsideration should be given to an independent issuing authority for authorisations to exercise powers of direction and intervention under new Part 3A of the SCI Act, along the lines recommended by the third INSLM in relation to the authorisation of compulsory industry assistance powers under Part 15 of the Telecommunications Act” (Recommendation 12 of the Law Council’s submission).
Moreover, in our view, in evidence tendered to the Committee the Government has yet to justify the wholesale exclusion of decisions made under Part 3A from judicial review under the Administrative Decisions (Judicial Review) Act 1977. In particular, the Government has not explained why the nuanced position put forward by the Law Council in Recommendation 26 of its submission should not be adopted.
If the Government implements the Committee’s unanimous and bipartisan recommendations, the Committee will have a further opportunity to consider these and other matters during its review of “Bill Two”. In our view, the Committee should take advantage of that opportunity and – in the absence of compelling evidence from the Government – recommend further improvements to Part 3A.
Hon Anthony Byrne MP
Hon Mark Dreyfus QC MPSenator Jenny McAllister
Senator the Hon Kristina KeneallyDr Anne Aly MP