Introduction

Conduct of the inquiry

1.1On 13 September 2023 the Deputy Prime Minister and Minister for Defence, the Hon Richard Marles MP, wrote to the Committee referring the Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 (the Bill) for inquiry and report.

1.2In his letter the Minister stated:

This Bill will strengthen Australia's existing legislative provisions to control and prevent the export and transfer of sensitive Defence information to foreign militaries. It achieves this by creating an authorisation framework that regulates work performed by former Defence staff members - including both former ADF members and Defence Australian Public Service employees.

As access to sensitive Defence information is not strictly held within the Defence enterprise, the Bill will also apply to all Australian citizens or permanent residents seeking to provide training to foreign militaries or foreign government entities in relation to goods, software and technologies in Part 1 of the Defence and Strategic Goods List; or training in relation to military tactics, techniques or procedures.[1]

1.3The Committee commenced its inquiry on 14 September 2023 and invited public submissions.

1.4The Committee received 12 submissions. Appendix A sets out a list of the submissions received.

1.5The Committee held a public hearing on 22 February 2024. Appendix B sets out a list of witnesses who appeared at the public hearing.

Report structure

1.6This report contains two chapters:

• this introduction, which includes an outline of the Bill; and
• chapter two, setting out issues arising in the Committee’s consideration of the Bill; and providing the Committee’s comments and recommendations.

The Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2023

1.7The Bill consists of one Schedule which would insert a new Part IXAA (Performing work for or providing training to a foreign military organisation or government body) into the Defence Act 1903 (Defence Act). The proposed new Part IXAA would consist of five Divisions.

Division 1 – Introduction

1.8Division 1 consists of proposed sections 112 – 115 and includes a simplified outline of the Part (proposed section 112), definitions (proposed section 113), the definition of a foreign work restricted individual (proposed section 114) and ministerial legislative instruments (proposed section 115).

Definitions

1.9Proposed section 113 sets out a number of definitions of terms used in the new Part IXAA. These include the following:

• defence staff member means:

(a) one of the following:

(i) the Chief of the Defence Force or the Vice Chief of the Defence Force;

(ii) the Chief of Navy, the Chief of Army or the Chief of Air Force;

(iii) a member of the Permanent Forces;

(iv) a member of the Reserves who is rendering continuous full-time service; or

(b) the Secretary of the Department or an APS employee in the Department; or

(c) the Head of the Australian Submarine Agency or an APS employee in the Australian Submarine Agency.

• government of a foreign country or a part of a foreign country means the authority exercising effective governmental control in that foreign country or that part of that foreign country.
• government body of a foreign country means:

(a) the government of the foreign country or of part of the foreign country; or

(b) an authority of the government of the foreign country; or

(c) an authority of the government of part of the foreign country; or

(d) a local government body or regional government body of the foreign country; or

(e) a public enterprise of the foreign country.

• military organisation of a foreign country means:

(a) the armed forces of the government of the foreign country; or

(b) the civilian component of:

(i) the Department of State of the foreign country; or

(ii) a government agency in the foreign country;

that is responsible for the defence of that country.

• training means any training:

(a) whether for reward or otherwise; and

(b) whether provided in a personal capacity or in any other capacity, including:

(i) as an agent, officer or employee of a body corporate incorporated within or outside Australia; or

(ii) in, or with, any partnership, trust, association, organisation or other body established, formed or created within or outside Australia; and

(c) whether regular or irregular training; and

(d) whether formal or informal instruction.

• work means any work (including the provision of training):

(a) whether for reward or otherwise; and

(b) whether performed in a personal capacity or in any other capacity, including:

(i) as an agent, officer or employee of a body corporate incorporated within or outside Australia; or

(ii) in, or with, any partnership, trust, association, organisation or other body established, formed or created within or outside Australia.

1.10Section 114 defines a ‘foreign work restricted individual’, as an individual who was, but is not currently, a defence staff member. However, subsections 115(1) and (2) provide for the Minister (for Defence) to effectively exempt some persons from this definition by determining, in a legislative instrument, a class of individuals who are not foreign restricted work individuals.

1.11Subsection 115(3) also provides for the Minister to effectively exclude certain countries from the regulatory scheme, by determining in a legislative instrument that a foreign country is not a ‘relevant foreign country’ for the purposes of the Part.

Division 2 – Offence: foreign work restricted individuals working for a foreign military organisation or government body

1.12Division 2 would insert section 115A which creates the offence of foreign work restricted individuals working for a foreign military organisation or government body. Under paragraphs 115A(1)(a)-(d), an individual commits the offence if they are a foreign work restricted individual, they perform work, the work is performed for or on behalf of a military organisation of a foreign country or a government body of a foreign country and the foreign country is a relevant foreign country. The penalty is imprisonment for 20 years.

1.13Proposed subsections 115A(2) to 115A(6) set out exceptions to the offence, being that it does not apply if:

• a foreign work authorisation is in force that authorises the individual to perform the work for, or on behalf of, the military organisation, or the government body, of the relevant foreign country, or
• the work performed by the individual is authorised by a written agreement to which the Commonwealth is a party, or
• the work performed by the individual is solely in the course of, and as part of, the individual’s service in any capacity in or with any armed force; and a declaration under subsection 119.8(1) of the Criminal Code covers the individual and the circumstances of the individual’s service in or with the armed force,[2] or
• the work performed by the individual is in the course of, and as part of, the individual’s employment or engagement by the Commonwealth, or
• the work performed by the individual is solely or primarily for either or both of the following purposes:

• providing aid of a humanitarian nature;
• performing an official duty for the United Nations or an agency of the United Nations or the International Committee of the Red Cross.

Division 3 – Offence: other individuals providing training to a foreign military organisation or government body

1.14Division 3 would create a further offence, applying to people who are not within the definition of a ‘foreign work restricted individual’.

1.15Proposed paragraphs 115B(1)(a)-(e) create an offence if an individual is an Australian citizen or a permanent resident of Australia; and not a foreign work restricted individual; and the individual provides training to, or on behalf of:

• a military organisation of a foreign country; or
• a government body of a foreign country; and
• either:

• the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List; or
• the training relates to military tactics, military techniques or military procedures; and

• the foreign country is a relevant foreign country.
  16. The penalty for the offence is 20 years’ imprisonment.
  17. Proposed paragraphs 115B(2) to 115B(6) set out exceptions to the offence which are identical to the exceptions set out above in relation to the offence in proposed section 115A(1).
  18. The new offences created by sections 115A and 115B both provide that ‘Category B’ extended geographical jurisdiction would apply, meaning that an Australian citizen or permanent resident can be guilty of these offences even if the conduct and its results occur entirely outside Australia.[3]

Division 4 – Foreign work authorisations

1.19Division 4 would insert sections 115C to 115M, setting out the conditions for a ‘foreign work authorisation’ which exempt an individual from the above offences.

The granting of a foreign work authorisation

1.20Proposed section 115C sets out the processes in relation to foreign work authorisations, including requesting, granting, cancelling, suspending and varying an authorisation, and review of decisions in relation to a foreign work authorisation.

1.21Subsection 115C(1) would provide that an individual may make a request to the Minister for a foreign work authorisation. Proposed subsection 115C(3) requires that a request under subsection 115C(1) be in writing, be in the form approved by the Secretary under subsection (13), contain the information that the form requires, and be accompanied by any documents that the form requires.[4]

1.22New paragraph 115C(2)(a) provides that an individual cannot make a request for an authorisation if the individual made a request for an authorisation to perform the same work for, or on behalf of, the same military organisation, or government body, of a relevant foreign country within the last 12 months.[5]

1.23In relation to an individual providing training, new paragraph 115C(2)(b) provides that the individual cannot make a request for an authorisation if the individual made a request for an authorisation to perform the same training to, or on behalf of, the same military organisation, or government body, of a relevant foreign country within the last 12 months.[6]

1.24Proposed subsection 115C(5) sets out the criteria the Minister must consider in deciding whether to grant an individual a foreign work authorisation under section 115C for the purposes of Division 2 (foreign work restricted individuals working for a foreign military organisation or government body). The Minister must consider:

• the kind of work, and the role, performed by the individual as a defence staff member;
• any other kind of work, that the Minister is aware of, performed by the individual other than as a defence staff member;
• the length of time that the individual was a defence staff member;
• the kind of information accessed by the individual while a defence staff member;
• the kind of work the individual would perform if the authorisation were granted;
• the military organisation, or the government body, of the foreign country for which, or on behalf of which, the individual would perform work if the authorisation were granted.[7]
  25. Proposed subsection 115C(6) sets out what the Minister must consider in deciding whether to grant an individual a foreign work authorisation under proposed section 115C for the purposes of Division 3 (other individuals providing training to a foreign military organisation or government body). The Minister must consider:
• the kind of training the individual would provide if the authorisation were granted;
• the military organisation, or the government body, of the foreign country for which, or on behalf of which, the individual would provide that training if the authorisation were granted.[8]
  26. Proposed subsection 115C(8) provides that the Minister must refuse to grant the individual an authorisation if the Minister reasonably believes that the individual’s performance of the work or provision of the training would prejudice the security, defence or international relations of Australia.[9]
  27. Proposed subsection 115C(9) provides that subsection (8) does not limit the grounds on which the Minister may refuse to grant an authorisation under this section. This clarifies that subsection (8) is not exhaustive and there may be other grounds not mentioned in subsection (8) that would give rise to the Minister refusing to grant an authorisation.[10]
  28. Proposed subsection 115C(10) provides that if the Minister grants an individual an authorisation, the Minister must give the individual a copy of the authorisation. The authorisation must specify the period the authorisation is in force, which must be no longer than three years..[11]
  29. Proposed subsection 115C(12) provides that the Minister may grant an individual an authorisation subject to any conditions specified in the authorisation.[12] Under paragraph 115C(10)(b), If the authorisation granted is different from the authorisation requested by the individual or is granted subject to conditions, the Minister must give the individual written notice setting out the reasons and the individual’s review rights under new sections 115K and 115L.
  30. Subsection 115C(11) would provide that if the Minister refuses an authorisation, the Minister must give the individual written notice of the refusal including the reasons for the refusal, and setting out the applicant’s review rights under sections 115K and 115L.

Offence for failing to comply with a condition of an authorisation

1.31Proposed subsection 115D(1) establishes that an individual commits an offence if a foreign work authorisation granted to the individual is in force, the authorisation is subject to a condition, and the individual does an act or omits to do an act in contravention of the condition. The penalty for this offence is 5 years’ imprisonment.[13]

Cancellation of authorisation

1.32Proposed subsection 115E(1) provides that the Minister must cancel an authorisation if:

• the Minister reasonably believes, as a change in circumstances, that the individual’s performance of work, or provision of training, as specified in the authorisation, would prejudice the security, defence or international relations of Australia; or
• the individual requests the Minister to cancel the authorisation.[14]
  33. Proposed subsection 115E(2) provides that the Minister is not required to observe any requirements of the natural justice hearing rule in relation to cancelling an authorisation under subsection (1).[15]
  34. Subsection 115E(3) provides in addition for ‘discretionary’ cancellation, whereby the Minister may cancel the authorisation if satisfied that the individual has contravened a condition of the authorisation, knowingly provided false or misleading information that was material to the authorisation process, or it would [otherwise] ‘be appropriate in all the circumstances’ to cancel the authorisation.
  35. In relation to a discretionary cancellation under subsection 115E(3), the Minister must provide written notice to the individual as soon as reasonably practicable after the decision to cancel, including the reasons for the decision, specifying a future day on which the cancellation takes effect, and setting out the individual’s review rights under sections 115K and 115L.

Suspension of authorisation

1.36Proposed subsection 115F(1) provides that the Minister may, in writing, suspend a foreign work authorisation granted to an individual if the Minister is satisfied that:

• the individual has failed to comply with a condition specified in the authorisation; or
• it would be appropriate in all the circumstances to suspend the authorisation.[16]
  37. Proposed subsection 115F(6) provides that if an authorisation is suspended under this section, the Minister may lift the suspension by written notice if the Minister is satisfied that it would be appropriate in all the circumstances.[17]
  38. Section 115F requires relevant written notice to the individual in the case of suspension, or lifting a suspension.

Variation of authorisations

1.39Proposed subsection 115G(1) provides that the Minister may, on the Minister’s own initiative and in writing, vary a foreign work authorisation granted to an individual if the Minister is satisfied that:

• the individual has failed to comply with a condition specified in the authorisation; or
• it would be appropriate in all the circumstances to vary the authorisation.[18]
  40. Proposed subsection 115H(1) provides that an individual may request the Minister to vary a foreign work authorisation granted to the individual. Proposed subsection 115H(2) requires that the request be in writing, be in the form approved by the Secretary, and contain the information and be accompanied by any documents that the form requires. Further detail about the approved form is provided in subsection 115H(6).[19]
  41. Proposed subsection 115H(2) also includes a note that an individual may commit an offence under the Criminal Code if the individual provides false or misleading information or documents in this regard.[20]
  42. Proposed subsection 115H(3) provides that the Minister must, in writing and as soon as reasonably practicable after the request is made, either vary the authorisation in a specified way or refuse to vary the authorisation.[21]
  43. If the Minister varies the authorisation, either on the Minister’s initiative or at the individual’s request, or if the Minister refuses a request to vary an authorisation, section 115G contains requirements for the provision of written notice and details to the individual.[22]

Notice before decision about authorisation

1.44Proposed section 115J sets out a requirement that the Minister give an individual written notice before making a decision about an authorisation. The purpose of this section is to allow an individual to provide supporting evidence, material or information to the Minister which may not have previously been available to the Minister, which the Minister must then consider prior to making a decision.[23]

Review of decisions

Internal review

1.45Proposed subsection 115K(1) provides that a person whose interests are affected by a reviewable decision may apply to the Minister for a review of the decision within 28 days after the person is notified of the decision.[24]

1.46Proposed subsection 115K(9) provides that each of the following decisions is a reviewable decision:

• a decision to refuse to grant an individual an authorisation;
• a decision to grant an individual a foreign work authorisation that is different from the authorisation requested;
• a decision to grant an individual a foreign work authorisation subject to one or more conditions;
• a decision to cancel a foreign work authorisation;
• a decision to suspend a foreign work authorisation;
• a decision to vary a foreign work authorisation on the Minister’s own initiative;
• a decision to refuse to vary a foreign work authorisation given to an individual;
• a decision to vary a foreign work authorisation granted to an individual in a way that is different from the variation requested.[25]
  47. Subsections 115K(4)-(7) set out provision for the Minister to review the decision, and notify the applicant of the outcome. If no notice is provided within 90 days, the Minister is taken to have affirmed the decision.
  48. Under subsection 115K(3), there is no Ministerial review if the original decision was made by the Minister personally.

AAT review

1.49Proposed section 115L provides that applications may be made to the Administrative Appeals Tribunal for review of the following decisions:

• a reviewable decision that is made by the Minister personally;
• a decision of the Minister made under section 115K to affirm, vary or revoke a reviewable decision.[26]
  50. A reviewable decision is a decision listed in proposed subsection 115K(9), as set out above.[27]
  51. The Explanatory Memorandum advises that this proposed section does not limit the rights of a person who is affected by a decision from seeking judicial review of the decision under the Administrative Decisions (Judicial Review) Act1977 or in accordance with common law principles.[28]

Disclosure of reasons for decisions

1.52Proposed section 115M provides that if the Minister makes or proposes to make decisions about authorisations for which there is a requirement that reasons be given to the individual in a notice, the notice must not disclose any reasons where the Minister reasonably believes their disclosure would prejudice the security, defence or international relations of Australia. In such cases the Minister must state in the notice that reasons were not disclosed because of that fact.

Division 5 – Other matters

1.53Division 5 sets out a number of other matters including:

• proposed section 115N providing for the Minister to delegate their functions or powers[29]
• proposed section 115P providing that the Minister must cause an independent review to be conducted of the operation of new Part IXAA and any legislative instruments in force under new section 115[30]

• under proposed subsection 115P(2), the review must commence as soon as practicable after the end of 5 years after Part IXAA commences. Subsection 115P(4) provides that the Minister must cause a copy of the review report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.[31]

Footnotes

[1] Hon Richard Marles MP, Deputy Prime Minister and Minister for Defence, letter to the Committee of 13 September 2023, unpublished.

[2]Subsection 119.8(1) of the Criminal Code allows a Minister to make a legislative instrument effectively exempting a person or class of persons from foreign incursion and ‘declared areas’ offences, if the Minister is satisfied that it is in Australia’s interests for the person to serve in a specified foreign armed service or role.

[3]Subsections 115A(7) and 115B(7), with reference to section 15.2 of the Criminal Code.

[4]EM, Schedule 1, p. 20, [143]. Subsection 115C(13) provides that the Secretary [of Defence] may approve a form for this purpose, which must be published on the Department’s website.

[5]Explanatory Memorandum (EM), Schedule 1, p. 20, [141].

[6]EM, Schedule 1, p. 20, [142].

[7]EM, Schedule 1, p. 21, [153-154].

[8]EM, Schedule 1, p. 22,, [155-156].

[9]EM, Schedule 1, p. 22, [158].

[10]EM, Schedule 1, p. 22, [159].

[11]EM, Schedule 1, p. 22, [160].

[12]EM, Schedule 1, p. 23, [164].

[13]EM, Schedule 1, p. 23, [169,171].

[14]EM, Schedule 1, p. 25, [183].

[15]EM, Schedule 1, p. 25, [187].

[16]EM, Schedule 1, p. 27, [203].

[17]EM, Schedule 1, p. 28, [215].

[18]EM, Schedule 1, p. 29, [223].

[19]EM, Schedule 1, p. 30, [236-237].

[20]EM, Schedule 1, p. 30, [239].

[21]EM, Schedule 1, p. 30, [240].

[22]Subsections 115G(2), 115H(4), 115H(5).

[23]EM, Schedule 1, p. 32, [253-254].

[24]EM, Schedule 1, p. 34, [275].

[25]EM, Schedule 1, p. 35, [288].

[26]EM, Schedule 1, p. 36, [292].

[27]EM, Schedule 1, p. 36, [294].

[28]EM, Schedule 1, p. 36, [298].

[29]EM, Schedule 1, p. 37, [303].

[30]EM, Schedule 1, p. 37, [308].

[31]EM, Schedule 1, p. 37, [309].