Part of a comprehensive analysis of the Infrastructure Protection Act 2017
All Parts in This Series
Ministerial Orders to Address Imminent Terrorism Risks: Legal Framework and Implications
The Infrastructure Protection Act 2017 provides a robust legal framework empowering the Minister to issue orders to owners of premises to mitigate imminent risks of terrorism. This article examines the key provisions under Part VI of the Act, focusing on the Minister’s powers, the obligations imposed on premises owners, the penalties for non-compliance, and relevant procedural safeguards. Understanding these provisions is crucial for stakeholders involved in infrastructure protection and counter-terrorism efforts.
Minister’s Powers to Issue Orders Under Section 58
Section 58(1) of the Infrastructure Protection Act 2017 grants the Minister broad authority to issue orders to owners of premises when the Minister is of the opinion that it is necessary to address any imminent risk of an act of terrorism. The orders may direct owners to undertake a range of measures, including:
"(1) If the Minister is of the opinion that it is necessary to address any imminent risk of an act of terrorism against any premises, the Minister may issue an order to the owner of the premises — (a) directing the owner to do one or more of the following, in response to that risk: (i) close the premises for such time as specified in the order; (ii) deploy such security personnel for the premises, for such purposes and for such time, as specified in the order; (iii) implement such other security measures for the premises in such manner, and maintain those measures for such time, as specified in the order; (iv) allow any member of a state force to enter the premises and implement and maintain such security measures, during such time, as specified in the order; (v) provide the Commissioner such information and documents relating to the protection of the premises against any act of terrorism, at such times, as specified in the order; and (b) specifying the date on which the order is to take effect and the period within which any direction in the order must be complied with." — Section 58(1)
Verify Section 58 in source document →
This provision exists to enable swift and decisive action to prevent or mitigate terrorist threats. By empowering the Minister to order closures, deployment of security personnel, and implementation of security measures, the Act ensures that premises vulnerable to terrorism can be secured promptly. The inclusion of allowing state force entry and requiring information provision facilitates coordinated government responses and intelligence gathering.
Scope of Security Measures Under Section 58(2)
Section 58(2) elaborates on the types of security measures that may be mandated by the Minister’s order. These include:
"Without limiting subsection (1)(a), the security measures mentioned in that subsection may include the following: (a) preparation and implementation of contingency plans on responses to any act of terrorism against the premises; (b) restriction on the entry of vehicles, vessels and persons to the premises; (c) conduct of searches of vehicles, vessels and persons (including any personal property of such persons) entering or in the premises; (d) installation of security systems, defence systems and other equipment in the premises." — Section 58(2)
Verify Section 58 in source document →
The purpose of detailing these measures is to provide clarity and flexibility in the Minister’s directives. Contingency plans ensure preparedness for terrorist incidents, while entry restrictions and searches help prevent unauthorized access and detect threats. Installation of security and defence systems enhances physical protection. This comprehensive approach reflects the multifaceted nature of counter-terrorism security.
Procedural Safeguards: Notice and Opportunity for Representations (Section 58(3))
While the Minister has significant powers, Section 58(3) mandates procedural fairness by requiring the Minister to notify the owner and provide an opportunity to make representations before issuing an order, unless impracticable or undesirable:
"Before issuing the order, the Minister must, unless the Minister considers it not practicable or desirable to do so in any particular case — (a) give notice of the Minister’s intention to do so to the owner of the premises; and (b) give the owner 14 days (or any longer or shorter time that the Minister may specify in the notice) after the date of the notice to make representations on the proposed order." — Section 58(3)
Verify Section 58 in source document →
This provision exists to balance the need for urgent action with the rights of premises owners. It ensures transparency and allows owners to present their views or objections, promoting fairness and accountability in the exercise of executive power. The exception clause recognises situations where delay could compromise security.
Revocation and Removal of Security Measures (Section 59)
The Minister retains the power to revoke any order or part thereof at any time, as stated in Section 59(1):
"The Minister may, at any time, revoke any order (or any part of the order) issued under this Part." — Section 59(1)
Verify Section 59 in source document →
This revocation power provides flexibility to adapt to changing circumstances, such as the reduction of threat levels or successful mitigation of risks. It prevents unnecessary continuation of restrictive measures and allows for the removal of security installations when no longer required.
Obligations and Penalties for Non-Compliance (Section 60)
Owners of premises are legally bound to comply with the Minister’s orders and notices. Section 60(1) states:
"The owner of any premises who is issued an order or a notice under this Part must comply with every direction in that order or that notice." — Section 60(1)
Verify Section 60 in source document →
Failure to comply constitutes an offence with severe penalties under Section 60(3):
"Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both and, in the case of a continuing offence, to a further fine not exceeding $2,500 for every day or part of a day during which the offence continues after conviction." — Section 60(3)
Verify Section 60 in source document →
The stringent penalties underscore the importance of compliance in safeguarding national security. They serve as a deterrent against obstruction or negligence that could exacerbate terrorism risks. The provision for daily fines for continuing offences ensures ongoing accountability.
Definition of “Owner” and Continuity of Obligations (Section 60(4))
Section 60(4) clarifies that the obligations under the orders extend to subsequent owners of the premises after the order is issued:
"In this section, a reference to the owner of any premises who is issued an order or a notice includes a reference to a person who becomes the owner of that premises after that order or that notice is issued." — Section 60(4)
Verify Section 60 in source document →
This ensures that security measures remain effective despite changes in ownership, preventing owners from evading responsibilities by transferring property. It maintains continuity in protective measures critical for counter-terrorism.
Entry by State Force and Identification Requirements (Section 61)
To implement or maintain security measures, members of a state force may need to enter premises. Section 61(1) requires such members to produce evidence of identity and authority upon demand:
"Any member of a state force who seeks to enter any premises to implement or maintain any security measure in accordance with the Minister’s order under section 58, or remove any security measure in accordance with the Minister’s notice under section 59, must, on demand by the owner or occupier of the premises, produce evidence of the member’s identity and authority to do so." — Section 61(1)
Verify Section 61 in source document →
This provision protects owners and occupiers by ensuring that only authorised personnel gain access, thereby preventing abuse of power and maintaining trust in enforcement actions.
Exemption from Section 42(1) for Specified Works (Section 58(5))
Section 58(5) provides that where new security measures involve specified works, Section 42(1) does not apply:
"Where the implementation of any new security measure under this section involves any specified works, section 42(1) does not apply in respect of those specified works." — Section 58(5)
Verify Section 58 in source document →
This exemption facilitates expedited implementation of security infrastructure without procedural delays that might otherwise hinder timely responses to terrorism threats. It reflects the priority given to national security over certain regulatory requirements in urgent situations.
Conclusion
The Infrastructure Protection Act 2017 equips the Minister with comprehensive powers to address imminent terrorism risks through orders directed at premises owners. The Act balances the need for swift and effective security measures with procedural safeguards and clear obligations. Penalties for non-compliance reinforce the seriousness of these measures. The provisions collectively ensure a coordinated and legally sound approach to infrastructure protection against terrorism.
Sections Covered in This Analysis
- Section 58(1), (2), (3), (5)
- Section 59(1)
- Section 60(1), (3), (4)
- Section 61(1)
Source Documents
For the authoritative text, consult SSO.