Second reading speech, Defence Legislation Amendment (Safeguarding Australia’s Military Secrets) Bill

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The Hon Richard Marles MP

Deputy Prime Minister

Minister for Defence

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02 6277 7800

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14 September 2023


I am pleased to present the Defence Legislation Amendment (Safeguarding Australia’s Military Secrets) Bill 2023.

Late last year, the Albanese Government directed Defence to examine the adequacy of the policies and procedures for preventing former Defence personnel from transferring sensitive Defence information to foreign militaries with interests inimical to Australia’s.

The examination recommended strengthening Australia’s already robust legislation. This Bill is in response to that recommendation. 

This Bill also reflects Australia’s commitment to enhance our security standards to safeguard sensitive technology and information, particularly as we embark on work through our AUKUS partnership with the United States and the United Kingdom. Elements of this Bill are modelled on similar provisions that exist in United States domestic law.

While this Bill does not represent the entirety of our legislative ambition in this respect, it is an important step towards establishing more seamless technological transfers with our AUKUS partners.

Australia already has a range of robust legislative measures and policies in place to deter and respond to the risk of foreign collection of our Defence secrets.

The Criminal Code, for instance, contains general secrecy offences that apply to current and former Commonwealth officers, including ADF personnel, who harm the national interest by disclosing information entrusted in them.

The Code specifically prohibits the provision of military-style training involving a foreign government principal.

This Bill extends Australia’s already robust legislation and policies further.

This Bill adopts a proactive approach by establishing an authorisation framework to regulate the performance of work and specified training to a foreign military, foreign government or foreign government entity.

The Bill requires certain former Defence staff members to obtain authorisation if they intend to perform work for a particular foreign military, foreign government or foreign government entity.

A former Defence staff member includes former members of the Australian Defence Force, former Australian Public Servants of the Department of Defence and the Australian Submarine Agency, and members of the Reserves who are rendering continuous full-time service.

The Bill also requires any Australian citizen or permanent resident to obtain authorisation if they intend to provide training in relation to certain export-controlled items or military tactics, techniques or procedures, to a foreign military, foreign government or foreign government entity.

The penalty for performing work for or specified training with a relevant foreign country without authorisation is 20 years’ imprisonment.

An individual will not commit an offence if they have been granted an authorisation for the work or training.

There are also other exceptions to the offences created by this Bill.

They include if an individual’s work or training is in relation to providing aid of a humanitarian nature, or if the individual performs an official duty for the United Nations, an agency of the United Nations or for the International Committee of the Red Cross.

An exemption also covers work or training in the course of an individual’s employment or engagement by the Commonwealth.

This Bill will enable the Minister for Defence to determine, by legislative instrument, which countries are not to be regarded as relevant foreign countries under this framework.

This means that if an individual intends to work or provide training to a foreign country listed on the instrument, the individual would not be required to apply for an authorisation.

This Bill will also enable the Minister for Defence to determine, by legislative instrument, a class of former Defence staff members who are not required to apply for an authorisation.

The class may be determined by the type of work performed by the Defence staff member and the period of time that has elapsed since the performance of that work.

This authorisation framework is not intended to prevent Australians from working overseas or with all foreign governments or militaries.

Rather, our legislative intent is to prevent individuals with knowledge of sensitive Defence information from training or working for certain foreign militaries or governments where that activity would put Australia’s national security at risk.

This Bill will ensure individuals in possession of sensitive Defence information who want to undertake these activities first seek authorisation to do so. This is to ensure their activities are not damaging Australia’s national interests.

This Bill will enable the Minister for Defence, or their delegate, to consider each request for authorisation on a case-by-case basis.

Authorisations may be granted subject to conditions and may be cancelled, suspended or varied in certain circumstances.

An authorisation will be refused if the Minister, or their delegate, reasonably believes that the performance of the work or training by the individual would prejudice the security, defence or international relations of Australia.

The Bill provides individuals the ability to seek internal or external merits review of certain decisions made under this authorisation framework.

The measures in this Bill are serious and, in some aspects, complex.

To this end, I intend to refer the Bill to the Parliamentary Joint Committee on Intelligence and Security for inquiry.

The Government looks forward to a thorough inquiry into this Bill by the committee, including any recommendations on whether sensible amendments can be made to ensure the Bill is fit for purpose.

I encourage all interested stakeholders to participate in the important work of the committee, and the Parliament, in scrutinising—and potentially improving—this Bill.

The importance of protecting our nation’s secrets and sensitive information cannot be overstated.

The protection of our nation’s secrets and sensitive information is central to preserving Australia’s national security and to keeping Australians safe.

I commend the Bill to the House.

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