Shielding Critical Infrastructure Information-Sharing Schemes from Competition Law
AbstractBecause the majority of critical infrastructure is now owned or operated by the private sector, governments have implemented schemes to facilitate the exchange of information between private sector owners and operators, to ensure that it is protected from terrorist attack. The operation of these information-sharing schemes has the potential to contravene the competition law provisions contained in Division 1 and Division 2 of Part IV of the Trade Practices Act 1974 (Cth) (TPA). In light of these matters, this article considers whether there is a need for a specific statutory defence in the TPA in order to ensure that such arrangements can operate effectively and encourage the frank exchange of this type of information. The article examines the existing voluntary self-regulatory scheme adopted in Australia in 2003 and compares it with similar schemes in the United States where there is a move away from voluntary self-regulation towards a mandatory regulatory model with a specific legislated defence to shield critical infrastructure information-exchange arrangements from antitrust laws.