Security of Critical Infrastructure Bill 2017 [2018] AUSStaCSBSD 21 (7 February 2018)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	This bill seeks to create a framework for managing critical infrastructure, including: • establishing a register of critical infrastructure assets; • providing the minister with a authority to direct a reporting entity or operator of a critical infrastructure asset to do, or refrain from doing, an act or thing within a specified period of time; • providing the secretary with the authority to request certain information from reporting entities and operators of critical infrastructure assets; • enabling a direction to be issued by the Minister to the owner or operator of a critical infrastructure asset to mitigate national security risks; and • providing that the minister can privately declare an asset to be a critical infrastructure asset in certain circumstances
Portfolio	Attorney-General
Introduced	Senate on 7 December 2017

Power for delegated legislation to amend primary legislation (Henry VIII clause)^[244]

1.313 Proposed Division 3 seeks to impose requirements on reporting entities to give certain information to the secretary in specified circumstances, and sets out the manner in which that information must be given. Clause 27 provides that rules may exempt any entity, specified classes of entities or specified entities from all or specified provisions of proposed Division 3, either generally or in specified circumstances. Clause 27 therefore effectively allows the rules to amend the operation of proposed Division 3 (that is, to amend primary legislation).

1.314 A provision that enables delegated legislation to amend primary legislation (including amending the operation of primary legislation) is known as a Henry VIII clause. There are significant concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament, as such clauses impact on levels of parliamentary scrutiny and may subvert the appropriate relationship between Parliament and the Executive. As such, the committee expects a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum.

1.315 In this instance, the committee notes that the explanatory memorandum provides an example of when the rules may be used to exempt entities from requirements in proposed Division 3.^[245] However, the explanatory memorandum does not provide clear justification for the appropriateness of using delegated legislation to amend the operation of proposed Division 3. Further the committee notes that the bill does not appear to provide any limitations on the power to make rules under clause 27. For example, it does not set out any criteria that must be satisfied.

1.316 The committee seeks the Attorney-General's more detailed justification as to why it is proposed to allow the rules to exempt entities from all or specified requirements of proposed Division 3.

1.317 The committee also seeks the Attorney-General's advice as to whether it would be appropriate to amend the bill to insert (at least high-level) guidance concerning the making of rules under clause 27.

Reversal of evidential burden of proof^[246]

1.318 Clause 45 seeks to create an offence of disclosing, making a record of or otherwise using protected information where the making of the record, the disclosure or the use is not authorised. The offence carries a maximum penalty of imprisonment for 2 years or 120 penalty units, or both.

1.319 Clause 46 creates a number of exceptions (offence specific defences) to this offence, stating that the offence does not apply if the making of the record the disclosure or the use:

1.320 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.321 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.322 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The committee notes that the explanatory memorandum does not provide a justification for the reversals of the evidential burden of proof in clause 46, merely restating the effect of the relevant provisions.

1.323 As the explanatory materials do not address this issue, the committee requests the Attorney-General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[247]

[244] Clause 27. The committee draws senators' attention to this provision pursuant to Senate Standing Order 241(a)(iv).

[246] Clause 46. The committee draws senators' attention to this provision pursuant to Senate Standing Order 241(a)(i).

[247] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests