In a submission to the government's consultation paper on protecting critical infrastructure and systems of national significance, the AIIA, the main lobby group for the tech industry, said it was concerned that an important and critical area of policy was being rushed through to legislation in the next few months, though industry still had many questions about the detail, scope and expansion of the law.
The government has proposed to circulate a draft bill next and then change the Security of Critical Infrastructure Act 2018 and put in place "an enhanced framework to uplift the security and resilience of Australia’s critical infrastructure. The regulations support the operation of the bill’s assistance and co-operation measures".
The changes will form part of the country's Cyber Security Strategy 2020. A total of 194 submissions to the consultation paper were received and 128 were made public a few days ago.
In the current submission, the AIIA said it supported an expansion of the definition of critical industries. "This review of critical industries and infrastructure and the consultation paper recognises the digitisation of our economy and resultant cyber threats we are facing," it said.
"However, given this importance to get it right, we believe that the economic impact assessment and both cross industry and individual critical infrastructure standards work should be completed prior to passing legislation. Policy transparency is vital for industry and community support."
The submission said that the AIIA did not accept that the threat of non-action was worse than the threat of unintended consequences and potentially poor drafting.
"Further, the Department of Home Affairs advised in an industry briefing that the legislation will not come into effect until specific industry standards are drafted and finalised," the organisation said. "This raises the question: why not complete this work up front as this would enable government and Parliament (as well as industry) to undertake a comprehensive assessment of the regulatory impact of the proposed changes to the large, medium and small businesses that may be captured by the reforms (and currently struggling in a once-in-a-lifetime economic event)."
The AIIA said it had concerns around the definition of the proposed data and cloud critical industry and the direct action proposal and that this was the focus of its submission.
"The expansion of the critical industry and essential services demonstrates the critical role that digital technologies play in our economy," it said. "The inclusion of data and the cloud as a critical industry is sensible and supported by the AIIA.
"However, the definition of the data and the cloud category in the legislation needs to be made clear so that industry can understand to whom the positive reporting obligations fall, and so the impact of the compliance costs be fully understood."
It suggested that the legislation should define to whom the requirement for positive security information and and reporting applied and suggested that this be asked only of infrastructure-as-a-service providers.
The AIIA said it supported the consultation paper when it stated: "Regulators will continue to work with entities to co-design sector-specific requirements and guidance to ensure the PSO is applied, taking into account the needs and capabilities of each sector."
Another point which it suggested was that the government, when defining data and the cloud to IaaS providers (and if the provider is a named entity in regulations), also needed to ensure that any determination made should apply only to that IaaS and not the company (entity) as a whole.
Regarding the government taking direct action to protect a critical infrastructure entity or system, the AIIA said it was critical that, when this was considered necessary, the request or action should be directed at the organisation (i.e. business and industry) subject to the cyber threat.
"To make this clear, the IaaS, PaaS or SaaS provider should not be the target of the direct action by government. The organisation or business that is under cyber attack is best placed to understand which systems are being threatened, whether they have a hybrid cloud environment covering on-premise and multi-cloud environments and how their business operates.
"Further, contracts between cloud providers and their clients restrict their abilities by law to intervene in their client systems and data," it said.
The AIIA also commented on the point that the government would seek to intervene in extreme events, recommending that there be limits on the powers of Commonwealth officers working with private sector operators, including bans on conducting cyber offensive activities from within private sector infrastructure, a high threshold under which such directions could be issued, a requirement for independent authorisation of such power and time limits on such powers.