Scott Ryan (Victoria, Liberal Party, Parliamentary Secretary to the Minister for Education) Share this | Link to this | Hansard source

I have some brief comments on this bill. The bill will improve the operation of the submarine cable protection regime and ensure Australia's regime continues to be a best practice regime. The bill will ensure consistency with the United Nations Convention on the Law of the Sea, will enable domestic submarine cables to be protected, will streamline the submarine cable installation permit process and will otherwise enhance the operation of the regime through administrative and technical amendments.

In recognition of the significance of submarine cables as critical infrastructure for Australia, the bill requires the ACMA to consult the Secretary of the Attorney-General's Department on submarine cable installation permit applications. This already takes place on an informal basis and the bill seeks to improve certainty and transparency for all stakeholders by formalising these arrangements.

Items 2, 3, 51, 54, 85, 86, 87 and 88 in the current explanatory memorandum cover the issue of merits review under the bill. The Senate Standing Committee for the Scrutiny of Bills has asked for more information about the proposed merits review procedures. The government thanks the committee for its response. These additional points now follow. This ensures the key information is recorded in Hansard.

During the consultation period, the Secretary of the Attorney-General's Department may make a submission on an application, which the ACMA must consider. The submission could include a recommendation that security-related permit conditions be imposed.

Where the Attorney-General's portfolio identifies significant security risks or concerns which cannot be mitigated through the imposition by the ACMA of security-related conditions on a proposed permit, the Attorney-General would need to form a view as to whether issuing the proposed permit would be prejudicial to one or more of the grounds of 'security' described in the Australian Security Intelligence Organisation Act 1979, or the ASIO Act. If so, the Attorney-General could, in consultation with the Prime Minister and the Minister for Communications, direct the ACMA not to issue a permit.

Generally, a decision by the ACMA to refuse an application or to impose conditions on a permit is open to reconsideration by the ACMA and merits review by the AAT. This is because a decision to grant a permit or impose conditions on a permit is a decision for the ACMA.

However, the ACMA's powers and functions do not extend to dealing with or considering security matters. Matters of national security fall within the Attorney-General's portfolio. Thus, a decision by the ACMA to refuse a permit on a security ground or to specify or vary a permit condition relating to security would not be open to reconsideration by the ACMA or merits review. This is because the ACMA's decision would be made in reliance on the advice of the Attorney-General and the Attorney-General's Department. It would not be practical for the ACMA to review the merits of the advice it is given.

Accordingly, where the ACMA refuses a permit on a security ground, merits review would be available, but under the ASIO Act. An ASIO assessment would form the basis of the Attorney-General's consideration about whether or not to exercise the relevant power. The Attorney-General would only exercise the power to direct the ACMA to not grant a permit where an adverse or qualified security assessment is issued by ASIO. An applicant who is the subject of an adverse or qualified security assessment would have a right to apply for merits review of that assessment from the AAT under the ASIO Act.

I commend the bill to the Senate.

Question agreed to.

Bill read a second time.