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Defence Amendment (Safeguarding Australia’s Military Secrets) Act 2024 - Do you need an Authorisation?

Introduction

The Defence Amendment (Safeguarding Australia’s Military Secrets) Act 2024, known as the SAMS Act, represents a critical legislative move aimed at enhancing national security through regulating the activities of former Australian defence, reservist and APS personnel. Amidst rising global tensions and the rapid evolution of technology, safeguarding sensitive information has become paramount. This bill introduces robust measures designed to prevent unauthorised interactions between former defence staff and foreign military entities, reflecting a proactive approach to maintaining the integrity of Australia's defence secrets. In the following snapshot, ECAG outlines the bill's relevance and policy rationale in today's global security environment as well as some key points to be aware of.


What is its purpose?

The SAMS Act is closely aligned to the Defence Trade Controls Amendment (DTC) Act 2024, which protects the technology and information of Australia and its key partners. In being enacted, it fills gaps in Australia's protective security environment that were otherwise out of scope of Australia's current export control and security legislative frameworks.


The SAMS Act was enacted to:

  • protect the export and transfer of sensitive defence information to foreign militaries

  • fill a gap in Australia's protective security environment by creating a new framework which will require certain individuals to seek authority to perform work for, or training with, foreign militaries

  • ultimately, the SAMS Act aims to ensure Australia’s national secrets stay securely in Australian hands.


Section 1: Key Provisions of the Bill


Definition and Scope

The legislation defines "foreign work restricted individuals" as ex-defence personnel who, after leaving service, are subject to specific restrictions regarding their employment and training activities. This category primarily includes individuals who have had access to sensitive information during their tenure within the defence forces.


In other words:


Former members of the Australian Defence Force, Reservists, APS and Australian citizens with certain knowledge of Australian export controlled technology listed on the Defence and Strategic Goods List (DSGL) and other defence knowledge, including:

  • the Chief of the Defence Force or the Vice Chief of the Defence Force

  • the Chief of Navy, the Chief of Army or the Chief of Air Force

  • a member of the ADF Permanent Forces

  • a member of the Reserves who is rendering continuous full-time service.

  • former members of the Department of Defence including:

  • the Secretary of the Department of Defence

  • Australian Public Service employees of the Department of Defence.

  • Former members of the Australian Submarine Agency including the:

  • Head of the Australian Submarine Agency

  • Australian Public Service employees of the Australian Submarine Agency.

  • Australian citizens and permanent residents seeking to provide training to foreign militaries in relation to:


Authorisation Requirements

The bill stipulates that these individuals must obtain a "foreign work authorisation" to engage in any form of work or training with a foreign military or government body. The authorisation process is designed to be thorough, requiring detailed scrutiny of the individual’s proposed role and its implications for national security.


Exceptions

The provisions do not apply to the countries listed in the Defence (Non-relevant foreign country) Determination 2024 of 01 May 2024, which includes Canada, New Zealand, United Kingdom and the United States.


The offence also does not apply if:

  • The work is performed as part of the individual’s employment by the Commonwealth.

  • The work performed by an individual is authorised by a written agreement to which the Commonwealth is a party i.e. a Defence contract.

  • The individual is authorised by the Attorney-General to perform work with an armed force of a foreign country under s119.8 of the Criminal Code Act 1995.

  • The work solely involves providing humanitarian aid or performing an official duty for the United Nations or the International Committee of the Red Cross


Penalties

Non-compliance with the bill's provisions is met with severe penalties, including the possibility of imprisonment for up to 20 years. These stringent penalties underline the Australian government's commitment to national security and the serious view it takes regarding the safeguarding of military secrets.


Section 2: Impact on Former Defence Staff


Impact

The introduction of these restrictions require former defence staff, especially in sectors related to defence technology, strategic consultancy, and security, to undertake additional due diligence when seeking new roles with a nexus to a foreign entity. Part of this due diligence is understanding whether, if applied for, the former defence staff would be eligible to obtain a Foreign Work Authorisation, which would only be issued in the instance where the prospective role is vetted against Australian national security interests. This could necessitate a shift in career paths for many former personnel or compel them to seek roles that are less sensitive and/or unrelated to their expertise gained during military service.


Compliance and Penalties

The risk of severe legal consequences serves as a strong deterrent against potential non-compliance. However, it also places a substantial burden on former defence staff to ensure they fully understand and comply with the new laws to avoid inadvertent breaches. Australian former defence staff and their employers' need to incorporate additional processes within current onboarding processes to ensure they can identify when additional compliance measures are needed for certain employees.


Authorisations

Foreign work restricted individuals can submit an authorisation request from 6 May 2024. An online request form for foreign work authorisation is available here.


Key points to be aware of:


  • The Act commences 28 days after Royal Assent which occured on 8 April 2024. Those affected will then have a further 3 months to apply for a Foreign Work Authorisation before the offence provisions commence. This means, those former ADF, reservist, APS and other personnel with specific knowledge, have until 8 July to have a Foreign Work Authorisation in place.

  • Individuals who apply during this initial period before the offence provisions commence can continue to undertake their work until the outcome of their Foreign Work Authorisation application has been finalised. This provision will only apply for applications made in the initial 90 days after the legislation commences. A Foreign Work Authorisation must be in place for individuals who apply for work after the offence provisions commence.

  • Defence will assess Foreign Work Authorisation applications on a case-by-case. Foreign Work Authorisation applications will be processed as soon as reasonably practicable after receipt of required information.

  • The maximum validity period for a Foreign Work Authorisation is 3 years.


Conclusion

The SAMS Act sets a new precedent for the management of post-service careers of defence personnel, firmly embedding national security considerations into the professional trajectories of those who have served.


While the bill provides a framework for protecting sensitive information, it also imposes significant adjustments on the lives of former defence staff, necessitating careful consideration and adaptation to comply with these new norms. Former defence staff now face complex legal landscapes that require them to navigate new requirements. These could involve detailed disclosures about their intended roles and the nature of their engagements with foreign entities.


The defence website provides more guidance and will also be the platform for authorisations here.




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