Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies if, in connection with:
(a) the operation by a carrier or carriage service provider of telecommunications networks or facilities; or
(b) the supply by a carrier or carriage service provider of a carriage service; or
(c) the supply by a carriage service provider of a carriage service, being a supply arranged by a carriage service intermediary;
the Home Affairs Minister is satisfied that there is a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security.
(2) The Home Affairs Minister may give a carrier, carriage service provider or carriage service intermediary a written direction requiring the carrier, provider or intermediary to do, or to refrain from doing, a specified act or thing within the period specified in the direction.
(3) A direction under subsection (2) may be given only if the Home Affairs Minister is satisfied that requiring the carrier, carriage service provider or carriage service intermediary to do, or to refrain from doing, the specified act or thing is reasonably necessary for purposes relating to eliminating or reducing the risk referred to in subsection (1).
Direction to be given after adverse security assessment
(4) The Home Affairs Minister must not give a carrier, carriage service provider or carriage service intermediary a direction under subsection (2) unless an adverse security assessment in respect of the carrier, provider or intermediary is given to the Home Affairs Minister in connection with this section.
Direction to be given after negotiations in good faith
(5) The Home Affairs Minister must not give a carrier, carriage service provider or carriage service intermediary a direction under subsection (2) unless the Home Affairs Minister is satisfied that reasonable steps have been taken to negotiate in good faith with the carrier, provider or intermediary to achieve an outcome of eliminating or reducing the risk referred to in subsection (1).
Matters to which regard must be had before giving direction
(6) Before giving a carrier, carriage service provider or carriage service intermediary a direction under subsection (2), the Home Affairs Minister must have regard to the following matters:
(a) the adverse security assessment mentioned in subsection (4);
(b) the costs, in complying with any direction, that would be likely to be incurred by the carrier, provider or intermediary;
(c) the potential consequences that any direction may have on competition in the telecommunications industry;
(d) the potential consequences that any direction may have on customers of the carrier, provider or intermediary.
The Home Affairs Minister must give the greatest weight to the matter mentioned in paragraph (a).
(7) Subsection (6) does not limit the matters to which regard may be had.
Consultation
(8) Before giving a carrier, carriage service provider or carriage service intermediary a direction under subsection (2), the Home Affairs Minister must:
(a) consult the Minister administering this Act; and
(b) do the following:
(i) by written notice, given to the carrier, provider or intermediary, set out the proposed direction;
(ii) in that notice, invite the carrier, provider or intermediary to make written representations to the Home Affairs Minister in relation to the proposed direction within the period specified in the notice;
(iii) have regard to any such representations made within that period.
(9) For the purposes of subparagraph (8)(b)(ii), the period to be specified in the notice must be at least 28 days after the notice is given. However, the Home Affairs Minister may specify a shorter period if the Home Affairs Minister considers it necessary to do so because of urgent circumstances.
(10) Subsection (8) does not limit the persons with whom the Home Affairs Minister may consult.
Copy of direction to be given to ACMA
(11) The Home Affairs Minister must give the ACMA a copy of any direction under subsection (2).
Compliance with direction
(12) A person must comply with a direction given to the person under subsection (2).
(13) In this section:
"security" has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .