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New national security legislation under the Safeguarding Australia’s Military Secrets program has officially been introduced this week.
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Legislation passed in the Australian Parliament on 27 March and enforced from 6 May is expected to strengthen Australia’s national security. The Safeguarding Australia’s Military Secrets Act (SAMS Act) is expected to protect military knowledge, skills, and experience as well as regulating the military training that Australians may provide to foreign countries.
Those affected could include personnel considering a role with a foreign military, government or company, and/or those who have left Defence in the last 10years.
Under the new legislation, a person could receive imprisonment for 10 years (or 2,500 penalty units or both) for supply of Defence and Strategic Goods List technology in Australia to a foreign person.
In addition, the new legislation outlines that a person could receive imprisonment for 10 years (or 2,500 penalty units or both) for providing Defence and Strategic Goods List services to another person (foreign, outside Australia, without permit etc).
Public analysis from Sydney law firm Piper Alderman outlined several implications for the domestic defence industry regarding the Safeguarding Australia’s Military Secrets Act.
“The Defence amendment … commenced on 6 May 2024 and is aimed at ensuring Australia’s military secrets are not passed on to foreign militaries,” according to firm authors Tim O’Callaghan, Travis Shueard, and Zara Cox.
“The SAMS Act’s primary purpose is to protect Australia’s military techniques, tactics and procedures. It takes a prescriptive approach by implementing new restrictions and penalties on Australian citizens and permanent residents with Defence knowledge who wish to or currently do work for foreign governments and military organisations.
“This, combined with the recent major changes to the Defence Trade Controls Act 2012 (Cth) (DTC Act), emphasise the need for defence industry organisations and personnel to seek appropriate advice about their security and trade controls obligations.”
“Importantly, the SAMS Act provides that an authorisation request must be refused if the Minister ‘reasonably believes that the performance of the work, or the provision of the training, by the individual would prejudice the security, defence or international relations of Australia.’ Any authorisation granted must not be for a period longer than three years.
“The SAMS Act empowers the minister to impose conditions on an authorisation and to cancel, suspend or vary an authorisation subject to certain criteria being satisfied. The minister can also delegate their functions and powers to highly-ranked defence members.
“The SAMS Act makes amendments to the Criminal Code to clarify that the offence in relation to military-style training involving a foreign government does not apply to an individual with a foreign work authorisation, to a class of individuals who are not foreign work individuals, and to countries that are not relevant foreign countries.
“With the advent of AUKUS, Australia’s defence legislative framework is in a period of significant upheaval. The SAMS Act is only one aspect of the legislative and regulatory change that the defence industry, although a pivotal one.”
In addition to the new repercussions, the legislation also creates a foreign work authorisation exception where an individual has been granted a foreign work authorisation for the work or training being provided.
In addition, a foreign work authorisation can be obtained by ministerial request which may be granted, refused or limited to work performed.
New criminal penalties apply for violations, such as a maximum of 20 years’ imprisonment if a foreign work restricted individual works for, or on behalf of, a military organisation or government body of a relevant foreign country without an exception.
