32  Direction if risk of act or omission that would be prejudicial to security
(1)

This section applies if in connection with the operation of, or the delivery of a service by, a critical infrastructure asset the Minister is satisfied that there is a risk of an act or omission that would be prejudicial to security.

Direction to do, or refrain from doing, an act or thing
(2)

The Minister may, subject to subsections (3) and (4), give an entity that is a reporting entity for, or an operator of, a critical infrastructure asset a written direction requiring the entity to do, or refrain from doing, a specified act or thing within the period specified in the direction.

(3)

The Minister must not give the direction unless:

(a)

the Minister is satisfied that requiring the entity to do, or to refrain from doing, the specified act or thing is reasonably necessary for purposes relating to eliminating or reducing the risk mentioned in subsection (1); and

(b)

the Minister is satisfied that reasonable steps have been taken to negotiate in good faith with the entity to achieve an outcome of eliminating or reducing the risk without a direction being given under subsection (2); and

(c)

an adverse security assessment in respect of the entity has been given to the Minister for the purposes of this section; and

(d)

the Minister is satisfied that no existing regulatory system of the Commonwealth, a State or a Territory could instead be used to eliminate or reduce the risk mentioned in subsection (1).

Note: The Minister must also undertake consultation before giving a direction (see section 33).

(3A)

For the purposes of paragraph (3)(d), Division 3 of Part 3 of the Foreign Acquisitions and Takeovers Act 1975 is to be ignored.

Matters etc. to which regard must be had
(4)

Before giving the entity the direction, the Minister must have regard to the following:

(a)

the adverse security assessment mentioned in paragraph (3)(c);

(b)

the costs that would be likely to be incurred by the entity in complying with the direction;

(c)

the potential consequences that the direction may have on competition in the relevant critical infrastructure sector;

(d)

the potential consequences that the direction may have on customers of, or services provided by, the entity;

(e)

any representations given by the entity or a consulted Minister under subsection 33(2) within the period specified for that purpose.

(5)

The Minister:

(a)

must give the greatest weight to the matter mentioned in paragraph (4)(a); and

(b)

may also have regard to any other matter the Minister considers relevant.

Other powers not limited
(6)

This section does not, by implication, limit a power conferred by another provision of this Act.