[Update: This article is aimed at NSW Government agencies, not Australian government agencies. Readers should also be aware that the Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022 which is referred to in this article (which was written in early March) was in fact passed by the Australian Parliament in late March, before the calling of the federal election.]
Data protection is front of mind for governments at all levels, both in Australia and internationally. Recent and proposed amendments to the Security of Critical Infrastructure Act 2018 (Cth) (SOCI Act) will provide the New South Wales Government with additional protections for its data assets.
The New South Wales Government has long had in place its own policies and frameworks to protect the State’s critical data assets. For example, the ICT Purchasing Framework, which must be complied with by government agencies for the procurement of ICT and related services, incorporates mechanisms to mitigate risks associated with the procurement of these services, including data storage and processing services, by standardising the ICT procurement process across all agencies. Under that Framework, amongst other measures, ICT providers must implement robust information security measures and must typically ensure that New South Wales Government data remains physically located within New South Wales. To take another example, agencies are also required to comply with the New South Wales Government’s Cyber Security Policy which mandates the implementation of measures to protect systems and information from compromise.
Recent and proposed amendments to the Commonwealth’s critical infrastructure legislation, the SOCI Act, provide further protections for New South Wales Government agencies regarding the security and reliability of data storage and processing services.
The Commonwealth’s critical infrastructure framework is contained in the SOCI Act. When the SOCI Act was first implemented, it applied only to four critical sectors, namely, water, gas, electricity and ports. Telecommunications infrastructure, which would have been expected to also be covered by the SOCI Act, was not included as it was subject (and still is subject) to its own separate critical infrastructure statutory regime.
When initially implemented, two primary obligations were imposed under the SOCI Act. First, ownership, operational, interest and control information in respect of critical infrastructure assets was required to be provided to the Commonwealth for inclusion in a non-public critical assets register and a Ministerial power, originally vested in the Attorney-General now the Minister for Home Affairs, was granted to issue directions in limited circumstances.
Security Legislation Amendment (Critical Infrastructure) Act 2021 (Cth) (First Amendment Act)
The First Amendment Act was passed in late 2021. In summary, it amended the SOCI Act to:
One of the new critical infrastructure sectors now falling within the scope of the SOCI Act is the “data storage or processing sector”. This is defined as the sector of the Australian economy that involves providing data storage or processing services. A data storage or processing service is in turn defined to mean a service that enables end-users to store or back-up data (through the use of information technology) or a data processing service. This sector therefore captures data storage or processing services where the provider controls the physical infrastructure or computing platforms used to provide such services. Such infrastructure includes for example enterprise data centres, managed services data centres, colocation data centres and cloud data centres.
The inclusion of this sector as a critical infrastructure sector reflects the Australian Government’s view that all levels of government and industry are increasingly dependent on data storage and processing services, for example cloud services, for their effective operation. Accordingly, the ongoing availability of such services is critical for facilitating the effective functioning of much of Australian society. The Australian Government has highlighted its concerns that cyber breaches involving such services may result in the disclosure of highly sensitive information relevant to the operation of the nation (or one of its States or Territories), risk foreign relations with key international partners and/or undermine economic prosperity and social stability.
Although specific sectors have been designated as critical under the SOCI Act, a particular asset used in a designated sector will only be a critical infrastructure asset, and subject to the SOCI Act regime, if that asset itself is designated as critical. A data storage or processing asset will be characterised as a “critical infrastructure asset” if, amongst other circumstances:
The definition aims to capture data storage companies or cloud computing companies that provide data storage or processing as their primary business offering on a commercial basis using the critical infrastructure asset, whether that be through, for example, infrastructure as a service (IaaS) or platform as a service (PaaS) offerings. The assets of software as a service (SaaS) providers may also in some cases be captured by the critical data storage or processing asset definition.
The Department of Home Affairs is finalising its consultation on the Security of Critical Infrastructure (Application) Rules, which would “turn on” register reporting obligations and cyber security incident reporting obligations under the SOCI Act for most of the new critical infrastructure asset classes, including data storage or processing assets. When those Rules commence, data storage and processing assets used primarily to provide services to New South Wales Government agencies will be classified as critical infrastructure assets and therefore subject to the SOCI Act regime.
Further amendments to SOCI Act in 2022
In February 2022, on one of the few sitting days before the next federal election, the Australian Government introduced the Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022 (2022 Bill) to the House of Representatives. That Bill, if it becomes law, would primarily amend the SOCI Act to provide for:
The 2022 Bill will probably not pass the Australian Senate before the looming federal election. However, even if there is a change of Government as a consequence of that election, it seems likely that the 2022 Bill, perhaps with some amendments, would be enacted this year.
Data protection issues are equally as important to the New South Wales Government as they are to the Commonwealth Government. The SOCI Act, including as likely to be amended in the short term, provides important protections in respect of the data storage and processing services used by the New South Wales Government and its agencies. The protections under the SOCI Act will be a welcome complement to the New South Wales Government’s existing efforts to manage cyber risk and data protection for New South Wales Government data.
Authors: Angela Flannery & Clare Giugni
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HUMAN RIGHTS – Anti-Discrimination Act 1977 (NSW) – victimisation – whether placement of the appellant on a “transitional plan” was “on the ground of” the appellant’s earlier proceedings in the Tribunal.
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CONSTITUTIONAL LAW (CTH) – chapter III – application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) came before the Tribunal Civil where one party is the state of NSW and the other party is a resident of another state – common ground that the Tribunal is not a "court of a state" – whether NCAT exercises state judicial power in hearing and determining a dispute under the GIPA Act.
ADMINISTRATIVE LAW – judicial review – construction of regulations – validity of regulation – construction of regulation-making power – whether regulations which cut down common law rights authorised – grounds to refuse visits – application to communications with legal practitioners – Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 94.
Hamzy v Commissioner of Corrective Services NSW  NSWCA 16
CONSTITUTIONAL LAW – inconsistency – state law having discriminatory impact on ethnic group – whether inconsistent with Racial Discrimination Act 1975 (Cth), ss 9, 10; Constitution, s 109.
HUMAN RIGHTS – discrimination – grounds – racial discrimination – ethnic origin – restrictions on use of language – disparate impact – prison security – extreme high risk inmate – communications with family and lawyers – Racial Discrimination Act 1975 (Cth), ss 9, 10.
PRISONERS – administration – supervision of visits and telephone calls – requirement to communicate in English – validity of Regulation – Commissioner’s monitoring policy – validity of policy – application to legal visits and communication with legal representatives – prisoners’ right to lawyer of choice and access to courts – whether criminal record check authorised – power to refuse visits by legal practitioners for any other reason.
STATUTORY INTERPRETATION – regulation-making power – authorising regulations limiting common law rights – sufficiency of general words – administration of prisons – rights of access to courts and legal advice – Crimes (Administration of Sentences) Regulation 2014, cll 15, 101, 116, 119.
Flowers v State of New South Wales  NSWCA 28
APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application.
APPEAL – motion to adduce further evidence – where appellant sought to examine opponent’s lawyers as to conduct of trial – full transcript of trial available.
APPEAL – challenge to finding as to credibility of police informant – finding not inconsistent with objective evidence nor glaringly improbable – allegation not put to police officer in cross-examination.
CIVIL PROCEDURE – hearings – application to vacate hearing – challenge to COVID-19 protocol requiring persons entering court to be vaccinated – matter not fixed for live hearing – hearing by audio-visual link or telephone available – applicant homeless – inconvenience where no live hearing.
CIVIL PROCEDURE – application for trial by jury – application for appeal to be heard by jury – no jury available on appeal.
COURT AND JUDGES – procedural fairness – reasonable apprehension of bias – plaintiff wrongly accused state of concealing documents – judge told plaintiff he owed the state an apology – whether lay observer might think judge might be biased.
TORTS – malicious prosecution – evidence of improper purpose – whether prosecutor concealed evidence – improper motive said to be revenge for prior successful claim by appellant.
Carr v Carr  NSWSC 166
ADMINISTRATIVE LAW – judicial review of Secretary’s decision not to approve exhumation – plaintiff’s husband and son buried in same grave many years ago – plaintiff applied for approval to exhume remains for re-interment at different cemetery pursuant to Public Health Regulation 2012 (NSW), cl 70 – surviving children of marriage opposed exhumation applications – Secretary’s delegate refused application on basis of children’s opposition – whether children were “nearest surviving relatives” in respect of the deceased son – whether applications required to be determined separately – whether delegate entitled to have regard to children’s objections to application in respect of the deceased son – whether remains buried in consecrated land – whether procedural fairness required delegate to give notice of aspects of the decision in advance – Secretary’s decision not circumscribed as plaintiff contended – no denial of procedural fairness – summons dismissed.
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Child Support (Registration and Collection) Act 1988
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Work Health and Safety Act 2011
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Judiciary Act 1903
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Admiralty Act 1988
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Broadcasting Services Act 1992
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Special Broadcasting Service Act 1991
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Foreign States Immunities Act 1985
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Administrative Appeals Tribunal Act 1975
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Australian Broadcasting Corporation Act 1983
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Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022 – 25 February 2022
Appropriation (Coronavirus Response) Bill (No. 2) 2021–2022 – 17 February 2022
Appropriation (Coronavirus Response) Bill (No. 1) 2021–2022 – 17 February 2022
COVID-19 and Other Legislation Amendment (Regulatory Reforms) Bill 2022 – 23 February 2022
Electronic Conveyancing (Adoption of National Law) Amendment Bill 2022 – 22 February 2022
Motor Sports Bill 2022 – 22 February 2022
Major Events Amendment Bill 2022 – 22 February 2022
Health Legislation (Miscellaneous) Amendment Bill 2022 – 23 February 2022
Biosecurity Order (Permitted Activities) Amendment Order 2022 (2022–37) – LW 16 February 2022
Administrative Arrangements (Administrative Changes–Miscellaneous) Order 2022 (2022–38) – LW 17 February 2022
Environmental Planning and Assessment Amendment (Moree Activation Precinct) Regulation 2022 (2022–39) – LW 18 February 2022
Environmental Planning and Assessment Amendment Regulation 2022 (2022–40) – LW 18 February 2022
Liquor Amendment (Outdoor Dining) Regulation 2022 (2022–41) – LW 18 February 2022
Mining Amendment (Competitive Selection Process) Regulation 2022 (2022–42) – LW 18 February 2022
Road Transport (Vehicle Registration) Amendment (Primary Producer’s Vehicle) Regulation 2022 – (2022–43) LW 18 February 2022
Water Management (Application of Act to Certain Water Sources) Proclamation 2022 (2022–44) – LW 18 February 2022
Public Health Amendment (COVID-19) Regulation (No 2) 2022 (2022–52) – LW 24 February 2022
Public Health Amendment (COVID-19) Regulation 2022 (2022–53) – LW 24 February 2022
Design and Building Practitioners Amendment (Miscellaneous) Regulation 2022 (2022–62) – LW 2 March 2022
Public Health Amendment (COVID-19 Penalty Notice Offences) Regulation 2022 (2022–63) – LW 2 March 2022
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.