35ABMinisterial authorisation

35AB Ministerial authorisation

Scope (1) This section applies if the Minister is satisfied that: (a) an incident: (i) has occurred; or (ii) is occurring; or (iii) is imminent; and (b) the incident has had, is having, or is likely to have, one or more relevant impacts on one or more critical infrastructure assets (each of which is a primary asset); and (c) there is a material risk that the incident has seriously prejudiced, is seriously prejudicing, or is likely to seriously prejudice: (i) the social or economic stability of Australia or its people; or (ii) the defence of Australia; or (iii) national security; and (d) no existing regulatory system of the Commonwealth, a State or a Territory could be used to provide a practical and effective response to the incident. (1A) This section also applies if the Minister is satisfied that: (a) an incident: (i) has occurred; or (ii) is occurring; or (iii) is imminent; and (b) the incident has had, is having, or is likely to have, one or more relevant impacts on one or more critical infrastructure assets (each of which is a primary asset); and (c) the incident relates to an emergency specified in a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) that is in force; and (d) no existing regulatory system of the Commonwealth, a State or a Territory could be used to provide a practical and effective response to the incident. Authorisation (2) The Minister may, on application by the Secretary, do any or all of the following things: (a) authorise the Secretary to give directions under section 35AK, relating to the incident and one or more primary assets, to one or more relevant entities; (b) authorise the Secretary to give directions under section 35AK, relating to the incident and one or more specified critical infrastructure sector assets, to one or more relevant entities; (c) authorise the Secretary to give to one or more specified entities a specified direction under section 35AQ that relates to the incident and one or more specified primary assets; (d) authorise the Secretary to give to one or more specified entities a specified direction under section 35AQ that relates to the incident and one or more specified critical infrastructure sector assets; (e) authorise the Secretary to give one or more specified requests under section 35AX that relate to the incident and one or more specified primary assets; (f) authorise the Secretary to give one or more specified requests under section 35AX that relate to the incident and one or more specified critical infrastructure sector assets.

Note 1: Section 35AK deals with information gathering directions.

Note 2: Section 35AQ deals with action directions.

Note 3: Section 35AX deals with intervention requests. The Minister must not give an authorisation under paragraph (2)(e) or (f) unless the Minister is satisfied that the incident is a cyber security incident: see subsection (10).