2022-2023

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

DEFENCE AMENDMENT (SAFEGUARDING AUSTRALIA’S MILITARY SECRETS) BILL 2023

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Defence, the Hon Richard Marles MP)

 

DEFENCE AMENDMENT (SAFEGUARDING AUSTRALIA’S MILITARY SECRETS) BILL 2023

 

GENERAL OUTLINE

1.                   The Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 (the Bill) amends the Defence Act 1903 (the Defence Act), through the insertion of a new Part IXAA which regulates the work that certain former defence staff members - called foreign work restricted individuals - can perform without a foreign work authorisation. The Bill also regulates the training that Australian citizens and permanent residents, other than foreign work restricted individuals, may provide without a foreign work authorisation.

2.                   The effect of the Bill is that:

a.        A foreign work restricted individual would commit an offence if the individual performs works for, or on behalf of, a military organisation, or government body, of a relevant foreign country, unless the Minister for Defence (the Minister) has granted the individual a foreign work authorisation for that work, or another exception applies.

b.       An individual, other than a foreign work restricted individual, would commit an offence if the individual provides training to, or on behalf of, a military organisation, or government body, of a relevant foreign country:

                                                              i.        relating to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List; or

                                                            ii.       relating to military tactics, military techniques or military procedures

unless the Minister has granted the individual a foreign work authorisation for that training, or another exception applies.

 

c.        The Minister may, by legislative instrument, determine a class of individuals who are not to be treated as foreign work restricted individuals, including by reference to the kinds of work previously performed by the individual as a defence staff member and the period of time that has elapsed since they performed that work.

d.       The Minister may, by legislative instrument, exclude a foreign country from being a relevant foreign country to which the offences in Part IXAA of the Act apply.

e.        An individual may make a request to the Minister for a foreign work authorisation.

f.         The Minister may decide to grant (with or without conditions), or to refuse to grant, a foreign work authorisation.

g.       If a foreign work authorisation is granted to an individual, the authorisation may be granted subject to conditions, and may be cancelled, suspended or varied in certain circumstances.

h.       An individual must be given an opportunity to make a written statement before the Minister makes certain adverse decisions in relation to foreign work authorisations.

i.         An individual may seek internal or external merits review of certain decisions made under the foreign work authorisation provisions. For decisions that are not made by the Minister personally, internal review must be sought before external review to the Administrative Appeals Tribunal.

Schedule 1: Amendments

3.                   Schedule 1 makes amendments to the Act.

4.                   The Act prescribes the control, administration, constitution and service of the Australian Defence Force.

FINANCIAL IMPACT STATEMENT

5.                   Resourcing associated with the administration of the measures in the Bill will be absorbed by the Department.

STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS

6.                   The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

7.                   The full statement of compatibility with human rights is attached to this explanatory memorandum.

 

NOTES ON PROVISIONS

Clause 1 Short title

8.                   This clause provides that the Bill, when enacted, may be cited as the Defence Amendment (Safeguarding Australia’s Military Secrets) Act 2023 .

Clause 2 Commencement

9.                   This clause sets out when provisions of the Bill, if enacted, would commence.

10.               Subclause 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

11.               Table item 1 provides that the whole of the Act commences 28 days after the Act receives the Royal Assent.

12.               Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3 Schedules

13.               This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

14.               There is one Schedule to the Bill. Schedule 1 would amend the Defence Act 1903 (Defence Act).

Schedule 1—Amendments

Defence Act 1903

Item 1 - After Part IX

15.               This item inserts new Part IXAA (Performing work for or providing training to a foreign military organisation or government body) after Part IX. New Part IXAA includes eighteen new sections.

Part IXAA —Performing work for or providing training to a military organisation or government body of a foreign country

Division 1—Introduction

Section 112     Simplified outline of this Part

16.               The simplified outline is included to assist the reader to understand the substantive provisions of the Part, however, it is not intended to be comprehensive. It is intended that the reader will rely on the substantive provisions of the Part to which the outline relates.

Section 113     Definitions

17.               This section inserts new definitions for new Part IXAA.

18.               Control , over a company, body or association, includes control as a result of, or by means of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights. The term control is relevant for the definitions of government and public enterprise .

19.               Defence and Strategic Goods List has the same meaning as in the Defence Trade Control Act 2012 .

20.               Defence staff member means one of the following: the Chief of the Defence Force, the Vice Chief of the Defence Force, the Chief of Navy, the Chief of Army, the Chief of Air Force, a member of the Permanent Forces, a member of the Reserves who is rendering continuous full-time service; or the Secretary of the Department or an APS employee in the Department; or the Head of the Australian Submarine Agency or an APS employee in the Australian Submarine Agency. The term defence staff member is relevant for the definition of foreign work restricted individual .

21.               Chief of the Defence Force, Vice Chief of the Defence Force, Permanent Forces, Defence Force and Reserves have the same meaning as in subsection 4(1) of the Act.

22.               Foreign work authorisation means an authorisation granted to an individual under new section 115C.

23.               Foreign work restricted individual has the meaning given by new section 114. A foreign work restricted individual may make a request to the Minister for a foreign work authorisation under new section 115C.

24.               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. The term government is relevant for the definition of government body , public enterprise and military organisation .

25.               Government body , of a foreign country, means, the government of the foreign country or the government of part of the foreign country; an authority of the government of the foreign country; an authority of the government of part of the foreign country; a local government body or regional government body of the foreign country; or a public enterprise of the foreign country. The term government body is relevant for offence provisions set out in new sections 115A and 115B.

26.               Military organisation , of a foreign country, means the armed forces of the government of the foreign country; or the civilian component of: the Department of State of the foreign country, or a government agency in the foreign country, that is responsible for the defence of that country. This new definition is intended to be interpreted broadly to capture all military organisation structures, including those that have hybrid government and civilian structures.

27.               Permanent resident of Australia means a person who is a permanent resident within the meaning of the Australian Citizenship Act 2007 . The term permanent resident of Australia is relevant for offence provision set out in new section 115B.

28.               Public enterprise , of a foreign country, means a company or any other body or association of a kind mentioned in paragraphs (a), (b) and (c) of the definition, these paragraphs are detailed below.

29.               For a public enterprise to meet the definition provided, they must satisfy either paragraph (a), being a company, or paragraph (b), being a body or association, in addition to paragraph (c).

30.               Paragraph (a) of the definition of public enterprise provides that a company may be a public enterprise if one or more of the following apply: 

a.        the government of the foreign country or of part of the foreign country holds more than 50% of the issued share capital of the company;

b.       the government of the foreign country or of part of the foreign country holds more than 50% of the voting power in the company;

c.        the government of the foreign country or of part of the foreign country is in a position to appoint more than 50% of the company’s board of directors;

d.       the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of the foreign country or of part of the foreign country;

e.        the government of the foreign country or of part of the foreign country is in a position to exercise control over the company

31.               The company must also satisfy paragraph (c) of the definition if it is to be a public enterprise .

32.               Paragraph (b) of the definition of public enterprise provides that a body or association, company may be a public enterprise if either, or both, of the following apply:

a.        the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of the foreign country or of part of the foreign country;

b.       the government of the foreign country or of part of the foreign country is in a position to exercise control over the body or association.

33.               The body or association must also satisfy paragraph (c) of the definition if it is to be a public enterprise .

34.               Paragraph (c) of the definition of the public enterprise provides that in addition to paragraphs (a) or (b), because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be, the company, body or association also:

a.        enjoys special legal rights or a special legal status under a law of the foreign country or of part of the foreign country; or

b.       enjoys special benefits or privileges under a law of the foreign country or of part of the foreign country;

35.               The effect of this is that the company, body or association must meet two separate criteria, being paragraphs (a) and (c), or (b) and (c), respectively to be a public enterprise .

36.               The definition of public enterprise is intended to capture public enterprises that are directly or indirectly, formally or informally, controlled or influenced by foreign state actors, with interests that are harmful to Australia. It would be expected that individuals seeking to perform work, or provide training to, or on behalf of, a public enterprise of a foreign country would undertake their own due diligence regarding the extent of foreign government control or influence over that public enterprise.

37.               Relevant foreign country means a foreign country, other than a foreign country covered by an instrument in force under new subsection 115(3). The effect of determining a country not to be a relevant foreign country is to allow the exclusion of certain countries from the application of Part IXAA. The Minister will consult with relevant ministers, including the Minister for Foreign Affairs, in relation to the development of instruments made pursuant to the new subsection 115(3).

38.               Reviewable decision is defined at new subsection 115K(9). Subsection 115K(9) lists each of the decisions that are reviewable decisions.

39.               Training means any training, whether for reward or otherwise; whether provided in a personal capacity or in any other capacity, including as an agent, officer or employee of a body corporate incorporated within or outside Australia, or in, or with, any partnership, trust, association, organisation or other body established, formed or created within or outside Australia; whether regular or irregular training, and whether formal or informal instruction.

40.               This definition is intentionally broad to capture all forms, modes and mediums of training and to cover all prospective scenarios under which knowledge-transfer could occur. 

41.               The scope of potential training that could be provided by an individual is extensive. It is the intent that training would be assessed in the context of preventing individuals from providing training that would directly or indirectly support foreign militaries and the transfer of defence secrets, information and knowledge relating to defence capability, platforms, materiel, tactics, techniques, procedures, personnel or operations.

42.               The term training is relevant for offence provision set out in new section 115B. Work means any work (including the provision of training), whether for reward or otherwise, and whether performed in a personal capacity or in any other capacity, including as an agent, officer or employee of a body corporate incorporated within or outside Australia, or in or with any partnership, trust, association, organisation or other body established, formed or created within or outside Australia.

43.               This definition is intended to capture all types of work, including military and

non-military related work. It is intended to be interpreted broadly to capture all employment types, whether in the individual’s personal capacity or any other capacity. This reflects modern employment arrangements, which may involve the use of labour hire companies and third party recruitment agencies. It is the policy intent for the definition to be interpreted broadly to cover all prospective scenarios under which knowledge-transfer could occur. 

44.               It is recognised that the scope of potential work to be performed by an individual is extensive. It is the policy intent that the work would be assessed in the context of preventing individuals from performing work that would directly or indirectly support foreign militaries and the transfer of Defence secrets, information and knowledge relating to Defence capability, platforms, materiel, tactics, techniques, procedures, personnel or operations. An appropriate risk assessment will be conducted to support the decision-making process. 

45.               The term work is relevant for offence provision set out in new section 115A.

Section 114     Definition of foreign work restricted individual

46.               This section defines a foreign work restricted individual .

47.               Subsection (1) provides that a foreign work restricted individual is an individual who was, but is not currently, a defence staff member.

48.               Subsection (2) clarifies that despite subsection (1), an individual will not be a foreign work restricted individual if the individual is included in a class of individuals covered by an instrument in force made under subsection 115(1).

Section 115     Ministerial legislative instruments

49.               This section enables the Minister to determine classes of individuals that are not foreign work restricted individuals and countries that are not relevant foreign countries . Subsections (1) and (2) relate to determinations for classes of individuals that are not foreign work restricted individuals and subsection (3) would relate to determinations for countries that are not relevant foreign countries.

Individuals who are not foreign work restricted individuals

50.               Subsection (1) provides that the Minister may, by legislative instrument, determine a class of individuals for the purposes of new subsection 114(2). Subsection 114(2) provides that an individual is not a foreign work restricted individual if the individual is included in a class of individuals covered by an instrument in force under subsection 115(1).

51.               The effect of these provisions is to enable the Minister to determine a class of individuals who are not foreign work restricted individuals.

52.               Subsection (2) provides that without limiting subsection (1), the class of individuals may be determined by reference to the following:

a.        Particular kinds of work performed by defence staff members;

b.       The period of time that has elapsed since the performance of particular kinds of work by defence staff members.

53.               The effect of this provision is to allow for a class of individuals to be determined by reference to the kind of work performed by the defence staff member and/or the period of time since the defence staff member performed that type of work.

54.               For example, an individual who was an APS employee in the Department is a foreign work restricted individual, unless that individual is part of a class of individual covered by an instrument made by the Minister under new subsection 115(1). In this scenario, the individual is not a foreign work restricted individual.

Countries that are not relevant foreign countries

55.               Subsection (3) provides that the Minister may, by legislative instrument, determine a foreign country not to be a relevant foreign country for the purposes of the definition of relevant foreign country in section 113. Under new section 113, a relevant foreign country is a foreign country other than a foreign country covered by an instrument in force under subsection 115(3).

56.               In making the determination, the Minister will consult with relevant ministers, including the Minister for Foreign Affairs, in relation to the development of instruments made pursuant to the new subsection 115(3).

57.               There will be no requirement for an individual to request a foreign work authorisation from the Minister in order to perform work or provide training to, or on behalf of, foreign countries that are not relevant foreign countries, as determined by the Minister under an instrument made pursuant to the new subsection 115(3).

58.               A determination made under this section is a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 . A determination made under subsections (1) and (3) will not be exempt from disallowance or sunsetting.

 

 

Division 2—Foreign work restricted individuals working for a foreign military organisation or government body

Section 115A Offence—foreign work restricted individuals working for a foreign military organisation or government body

59.               This section creates an offence if a foreign work restricted individual works for, or on behalf of, a foreign military organisation or government body and sets out exceptions for that offence.

Offence

60.               Subsection (1) establishes that an individual commits an offence if the individual is a foreign work restricted individual, and the individual performs work, and 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.

61.               The terms foreign work restricted individual , government body , military organisation , relevant foreign country and work are defined in new section 113.

62.               The penalty for this offence is 20 years’ imprisonment.

63.               The penalty amount imposed for this offence is intended to provide an effective deterrent and reflects the seriousness of the offence. The penalty imposed for this offence is consistent with the established principal of Commonwealth criminal law policy as set out in the Attorney-General’s Department’s A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide to Framing Commonwealth Offences) .

64.               The penalty amount also complements comparable offences in other Commonwealth legislation. For example, the offence under section 83.3 of the Criminal Code Act 1995 (the Criminal Code) for providing military-style training to foreign government principals or foreign political organisations has a penalty of 20 years.

65.               The penalty amount also aligns with penalties imposed by secrecy, sabotage and foreign interference offences under the Criminal Code.

Exceptions

66.               Sub-sections (2) to (6) of new section 115A provide exceptions to the offence created under subsection (1).

67.               In many cases, a foreign work restricted individual seeking to work for a military organisation or government body of a foreign country would not constitute a security risk. Accordingly, new section 115A provides a number of exceptions to the offence provision where work is for a legitimate or official purpose, and including an exception where the Minister has granted a foreign work restricted individual a foreign work authorisation.

 

 

 

Exception - Foreign Work Authorisation

68.               Subsection (2) provides that subsection (1) 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.

69.               Subsection (2) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code.

70.               The note clarifies that where a defendant seeks to rely on this exception, the defendant bears the evidential burden to prove that a foreign work authorisation 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, is in force and authorised the actions. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge. 

71.               The defendant would bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the foreign work authorisation was in force for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Written Agreement

72.               Subsection (3) provides that subsection (1) does not apply if the work performed by the individual is authorised by a written agreement to which the Commonwealth is a party.

73.               Subsection (3) include a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code.

74.               The effect of the note is that where a defendant sought to rely on this exception, the defendant would bear the evidential burden to prove that the individual had authorisation by written agreement and the Commonwealth was a party to that agreement. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge.

75.               The defendant would bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that written agreement to which the Commonwealth was a party authorised the work performed for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Service in armed forces capacity

76.               Subsection (4) provides that subsection (1) will not apply if 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 forces, 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.

77.               Under Part 5.5 of the Criminal Code, it is an offence to enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country; prepare to enter, or for another person to enter, a foreign country with an intention to engage in a hostile activity; or recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country. The offence does not apply to specified armed forces declared by the Australian Federal Police Minister under subsection 119.8(1) of the Criminal Code.

78.               Subsection (4) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

79.               The effect of the note is that where a defendant seeks to rely on this exception, the defendant will bear the evidential burden to prove that the work performed by the individual was solely in the course of, and as part of, the individual’s service in any capacity in or with any armed forces 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 force. It is appropriate for the defendant to bear the evidential burden because this fact would be peculiarly within the defendant’s knowledge. 

80.               The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the work performed is solely in the course of, and as part of the individual’s service for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Employment or Engagement by the Commonwealth

81.               Subsection (5) provides that subsection (1) will not apply if the work performed by the individual is done in the course of, and as part of, the individual’s employment or engagement by the Commonwealth.

82.               Subsection (5) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

83.               The effect of this note is that where a defendant seeks to rely on this exception, the defendant will bear the evidential burden to prove that the individual’s work was done in the course of, and as part of the individual’s employment or engagement by the Commonwealth. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge. 

84.               The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the work performed in the course of, and as part of, the individuals’ employment or engagement by the Commonwealth for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Aid of a Humanitarian Nature or Performing Official Duty

85.               Subsection (6) provides that subsection (1) will not apply if the work performed by the individual is solely or primarily for either or both:

a.        providing aid of a humanitarian nature;

b.       performing an official duty only for the United Nations or an agency of the United Nations, or the International Committee of the Red Cross.

86.               It is recognised that many of the skills developed while engaged with the ADF or Defence could be directly or indirectly applicable to humanitarian aid. It is not intended to prevent a foreign work restricted individual from providing humanitarian aid in either a voluntary or an official capacity, provided that entry or access to the relevant location was not prohibited by Australian law.

87.               Subsection (6) includes a note that a defendant bears an evidential burden in relation to the matter in the subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

88.               The effect of this note is that where a defendant seeks to rely on this exception, the defendant bears the evidential burden to prove that the work performed by the individual is solely or primarily for providing aid of a humanitarian nature or performing an official duty for the United Nations, an agency of the United Nations, or the International Committee of the Red Cross. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge. 

89.               For example, the individual may have correspondence from the humanitarian agency in relation to the work performed, and relevant duty statements from the United Nations, an agency of the United Nations or the International Committee of the Red Cross.

90.               The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the work performed was solely or primarily for providing humanitarian aid, or for an official duty with the United Nations, an agency of the United Nations, or the International Committee of the Red Cross, for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Geographical jurisdiction

91.               Subsection (7) applies section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) to an offence against this section.

92.               Under section 15.2 of the Criminal Code, the effect of category B jurisdiction is that the offence applies:

a.        if the conduct constituting the offence occurs wholly or partly in Australia, or on board an Australian aircraft or an Australian ship;

b.       if the conduct constituting the offence occurs wholly outside Australia and a result of the conduct occurs wholly or partly in Australia;

c.        if the conduct constituting the offence occurs wholly outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate; and

d.       if the alleged offence is an ancillary offence, the conduct constituting the alleged offence occurs wholly outside Australia and the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

93.               The effect of this subsection is that the offence of working for a military organisation of a foreign country or government body of a foreign country, extends to conduct by an Australian citizen or Australian permanent resident outside Australia as well conduct within Australia.

94.               Category B jurisdiction is appropriate to ensure that this offence appropriately applies to work performed for, or on behalf of a military organisation of a foreign country or a government body of a foreign country, wherever that conduct occurs.

95.               Work performed by the foreign work restricted individual generally occurs outside Australia, rather than within Australia. It is therefore an imperative that section 15.2 of the Criminal Code applies to the offence.

 

Division 3—Other individuals providing training to a foreign military organisation or government body

Section 115B Offence—other individuals providing training to a foreign military organisation or government body

96.               This section creates an offence for an individual providing training for, or on behalf of, a foreign military organisation or government body and exceptions for that offence.

Offence

97.               Subsection (1) provides that an individual commits an offence if the individual is an Australian citizen or a permanent resident, and the individual is 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. The provision of such training either relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List, or training relates to military tactics, military techniques or military procedures. The foreign country must be a relevant foreign country.

98.               Part 1 of the Defence and Strategic Goods List covers defence and related goods. Those goods and technologies are designed or adapted for use by armed forces or are goods that are inherently lethal. Broadly, these goods include:

a.        Military Goods, being goods, software or technology that are designed or adapted for military purposes, including their parts and accessories; and

b.       Non-Military Lethal Goods, being equipment that is inherently lethal, incapacitating or destructive such as non-military firearms, non-military ammunition and commercial explosives and initiators.

99.               The terms Defence and Strategic Goods List , government , government body , military organisation , relevant foreign country and training are defined in new section 113.

100.           The penalty for this offence is 20 years’ imprisonment.

101.           The penalty amount imposed for this offence is appropriate in these circumstances. The amount is intended to provide an effective deterrence and reflects the seriousness of the offence. The penalty imposed for this offence is consistent with the established principal of Commonwealth criminal law policy as set out in the Guide to Framing Commonwealth Offences to impose a higher penalty where the consequences of the offence are particularly dangerous or damaging.

102.           The penalty amount also complements comparable offences in other Commonwealth legislation. For example, the offence under section 83.3 of the Criminal Code Act 1995 (the Criminal Code) for providing military-style training to foreign government principals or foreign political organisations has a penalty of 20 years.

103.           The penalty amount also aligns with penalties imposed by secrecy, sabotage and foreign interference offences under the Criminal Code.

 

 

 

Exceptions

104.           Subsections (2) to (6) of new section 115B provide exceptions to the offence created under subsection (1).

105.           In many cases, an individual seeking to provide training for a military organisation of a foreign country, or government body of a foreign country, would not constitute a security risk. Accordingly, this section provides for a number of exceptions to the offence provision where work is for a legitimate or official purpose, including an exception where the Minister has granted an individual a foreign work authorisation.

Exception - Foreign Work Authorisation

106.           Subsection (2) provides that subsection (1) will not apply if a foreign work authorisation is in force that authorises the individual to provide the training to, or on behalf of, the foreign military organisation, or the government body, of the relevant foreign country.

107.           Subsection (2) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

108.           The note clarifies that where a defendant seeks to rely on this exception, the defendant bears the evidential burden to prove that a foreign work authorisation that authorises the individual to provide training for, or on behalf of, the military organisation, or the government body, of the relevant foreign country, is in force. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge. 

109.           The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the foreign work authorisation was in force for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Written Agreement

110.           Subsection (3) provides that subsection (1) will not apply if the training provided by the individual is authorised by a written agreement to which the Commonwealth is a party.

111.           Subsection (3) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

112.           The effect of this note is that where a defendant sought to rely on this exception, the defendant would bear the evidential burden to prove that the individual had authorisation by written agreement and the Commonwealth was a party to that agreement. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge.

113.           For example, the individual may have correspondence from the Commonwealth to the individual in relation to the agreement, a copy of the agreement, or other relevant official documentation in their possession.  

114.           The defendant would bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that written agreement to which the Commonwealth was a party authorised the training provided for this exception to be made out. If the defendant was able to meet this evidential burden, the prosecution would be required to refute the exception beyond a reasonable doubt.

Exception - Service in armed forces capacity

115.           Subsection (4) provides that subsection (1) will not apply if the training provided 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 forces 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.

116.           Under Part 5.5 of the Criminal Code, it is an offence to enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country; prepare to enter, or for another person to enter, a foreign country with an intention to engage in a hostile activity; or recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country. The offence does not apply to specified armed forces declared by the Australian Federal Police Minister under subsection 119.8(1) of the Criminal Code.

117.           Subsection (4) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

118.           The effect of this note is that where a defendant seeks to rely on this exception, the defendant will bear the evidential burden to prove that the training provided by the individual was solely in the course of, and as part of, the individual’s service in any capacity in or with any armed forces 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 force. It is appropriate for the defendant to bear the evidential burden because this fact will be peculiarly within the defendant’s knowledge. 

119.           The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the training provided is solely in the course of, and as part of the individual’s service for this exception to be made out. If the defendant was able to meet this evidential burden, the prosecution would be required to refute the exception beyond a reasonable doubt.

Exception - Employment or Engagement by the Commonwealth

120.           Subsection (5) provides that subsection (1) will not apply if the training provided by the individual is done in the course of, and as part of, the individual’s employment or engagement by the Commonwealth.

121.           Subsection (5) includes a note that a defendant bears an evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

122.           The effect of this note is that where a defendant seeks to rely on this exception, the defendant will bear the evidential burden to prove that the individual’s training is done in the course of, and as part of the individual’s employment or engagement by the Commonwealth. It is appropriate for the defendant to bear the evidential burden because this fact will be within the defendant’s knowledge. 

123.           For example, the individual may have correspondence of their employment or engagement from the Commonwealth to the individual, a signed letter of offer from the Commonwealth, or payslips in their possession.

124.           The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the work performed in the course of, and as part of, the individuals’ employment or engagement by the Commonwealth for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Exception - Aid of a Humanitarian Nature or Performing Official Duty

125.           Subsection (6) provides that subsection (1) will not apply if the training provided by the individual is solely or primarily for either or both:

a.        providing aid of a humanitarian nature;

b.       performing an official duty only for the United Nations or an agency of the United Nations or the International Committee of the Red Cross.

126.           It is not the intention to prevent an individual from providing humanitarian aid in either a voluntary or an official capacity, provided that entry or access to the relevant location was permitted under Australian law.

127.           Subsection (6) includes a note that a defendant bears an evidential burden in relation to the matter in the subsection and refers the reader to subsection 13.3(3) of the Criminal Code. Section 13.3 of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. 

128.           The effect of this note is that where a defendant seeks to rely on this exception, the defendant bears the evidential burden to prove that the work performed by the individual is solely or primarily for providing aid of a humanitarian nature or performing an official duty for the United Nations, an agency of the United Nations, or the International Committee of the Red Cross. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge. 

129.           For example, the individual may have correspondence from the humanitarian agency in relation to the work performed, and relevant duty statements from the United Nations, an agency of the United Nations or the International Committee of the Red Cross.

130.           The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the work performed was solely or primarily for providing humanitarian aid, or for an official duty with the United Nations, an agency of the United Nations or the International Committee of the Red Cross, for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.

Geographical jurisdiction

131.           Subsection (7) applies section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) to an offence against this section.

132.           Under section 15.2 of the Criminal Code, the effect of category B jurisdiction is that the offence applies:

a.        if the conduct constituting the offence occurs wholly or partly in Australia, or on board an Australian aircraft or an Australian ship;

b.       if the conduct constituting the offence occurs wholly outside Australia and a result of the conduct occurs wholly or partly in Australia;

c.        if the conduct constituting the offence occurs wholly outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate; and

d.       if the alleged offence is an ancillary offence, the conduct constituting the alleged offence occurs wholly outside Australia and the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

133.           The effect of this subsection is that the offence for working for a military organisation of a foreign country or government body of a foreign country, extends to conduct by an Australian citizen or Australian permanent resident outside Australia as well conduct within Australia.

134.           Category B jurisdiction is appropriate to ensure that this offence appropriately applies to work performed for, or on behalf of a military organisation of a foreign country or a government body of a foreign country, wherever that conduct occurs.

135.           Work performed by the foreign work restricted individual generally occurs outside Australia, rather than within Australia. It is therefore an imperative that section 15.2 of the Criminal Code applies to the offence.

136.           The application of geographical jurisdiction (extraterritoriality) in this section is consistent with the Guide to Framing Commonwealth Offences.

 

Division 4—Foreign work authorisations

Section 115C Grant of foreign work authorisations

137.           This section 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.

Request for authorisation

138.           Subsections (1) to (3) sets out the process for requesting an authorisation.

139.           Subsection (1) provides that an individual may make a request to the Minister for an authorisation under new section 115C.

140.           Subsection (2) provides limitations on an individual making a request for an authorisation.

141.           In relation to a foreign work restricted individual performing work, new 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.

142.           In 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.

143.           Subsection (3) requires that a request under subsection 115C(1) be in writing, be in the form approved by the Secretary under subsection (13), and contain the information that the form requires, and be accompanied by any documents that the form requires.

144.           For example, the form may require the foreign work restricted individual to provide information about their previous ADF service, the location and nature of the work, the proposed employer, the duration of the proposed training or work, and the nature of the work or training the applicant seeks to undertake. The form may also require the individual to provide information about their previous experience or training in relation to Part 1 of the Defence and Strategic Goods List.

145.           By requiring a foreign work restricted individual or an individual to provide information or documents, this section may incidentally require the provision of personal information. It is intended that the powers and functions in the Bill would be exercised in compliance with the Privacy Act 1988 (the Privacy Act).

146.           Subsection (3) includes a note that an individual may commit an offence if the individual provides false or misleading information or documents and refers the reader to sections 137.1 and 137.2 of the Criminal Code. The effect of this note is to clarify that if the individual provides false or misleading information or documents, as part of the individual’s request for authorisation, the individual may commit an offence under section 137.1 and/or 137.2 of the Criminal Code.

Granting, or refusing to grant, an authorisation

147.           Subsections (4) to (9) set out the process for granting, or refusing to grant, an authorisation.

148.           Subsection (4) provides that the Minister must, by writing and as soon as reasonably practicable after the request is made, either grant the individual or refuse to grant the individual an authorisation under new section 115C.

149.           New paragraph 115C(4)(a) provides an authorisation may be granted (by the Minister) to an individual to perform specified work for, or on behalf of, a specified military organisation, or a specified government body, of a specified relevant foreign country; or to provide specified training to, or on behalf of, a specified military organisation, or a specified government body, of a specified relevant foreign country.

150.           New paragraph 115C(4)(b) provides the authority for the Minister to refuse to grant an authorisation.

151.           Subsection (4) includes a note that the Minister must give the individual written notice before refusing to grant the individual an authorisation or before granting an authorisation that is different from the authorisation requested. The note also directs the reader to new section 115J.

152.           The effect of proposed subsection 115C(4) is that once an individual makes a request, the Minister must as soon as reasonably practicable either grant, or refuse to grant, a foreign work authorisation. The term ‘as soon as reasonably practicable’ will be determined on a case by case basis and may be impacted by the volume or complexity of information included in the request.

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

154.           The Minister must consider:

a.        the kind of work, and the role, performed by the individual as a defence staff member;

b.       any other kind of work, that the Minister is aware of, performed by the individual other than as a defence staff member

c.        the length of time that the individual was a defence staff member;

d.       the kind of information accessed by the individual while a defence staff member;

e.        the kind of work the individual would perform if the authorisation were granted;

f.         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.

 

155.           Subsection (6) sets out what the Minister must consider in deciding whether to grant the individual a foreign work authorisation under proposed section 115C for the purposes of Division 3. Division 3 sets out an offence provision for other individuals providing training to a foreign military organisation or government body

156.           The Minister must consider:

a.        the kind of training the individual would provide if the authorisation were granted;

b.       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.

 

157.           Subsection (7) provides that subsections (5) and (6) do not limit the matters that the Minister may consider in deciding whether to grant an authorisation under proposed section 115C. While subsections (5) and (6) set out matters that the Minister must consider, these considerations are not intended to be exhaustive. There may be other matters not listed in subsections (5) and (6) that the Minister may consider in deciding to grant an authorisation.

158.           Subsection (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 the provision of the training, would prejudice the security, defence or international relations of Australia.

159.           Subsection (9) provides that subsection (8) does not limit the grounds on which the Minister may refuse to grant an authorisation under this section. While subsection (8) sets out grounds on which the Minister must refuse to grant an authorisation, that is not intended to be exhaustive. There may be other grounds not mentioned in subsection (8) that would give rise to the Minister refusing to grant an authorisation.

Notice

160.           Subsection ( 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. If the authorisation is different from the authorisation requested by the individual or is granted subject to conditions, the Minister must also give the individual written notice setting out the reasons and the individual’s review rights under new sections 115K and 115L .

161.           Subsection ( 10 ) also includes a note that new section 115M deals with disclosing reasons for decisions.

162.           Subsection ( 11 ) provides that if the Minister refuses to grant an individual an authorisation, the Minister must give the individual written notice of the refusal. The notice must include reasons for the refusal and set out the individual’s review rights under new sections 115K and 115L .

163.           Subsection ( 11 ) also includes a note that new section 115M deals with disclosing reasons for decisions.

Conditions

164.           Subsection ( 12 ) provides that the Minister may grant an individual an authorisation subject to any conditions specified in the authorisation.

165.           Subsection ( 12 ) includes a note that the Minister must give the individual written notice before granting an authorisation subject to conditions. The note would also direct the reader to new section 115J .

166.           The effect of this subsection is that an authorisation may be granted to an individual with conditions. For example, the Minister may grant an authorisation subject to the condition that the individual only work in a specific role, only perform work for a specific period of time. Another example of a condition may involve certain reporting obligations. If the individual failed to comply with any condition contained in the authorisation, the individual would be committing an offence under new section 115D . 

Approved form

167.           Subsection ( 13 ) provides that the Secretary may, in writing, approve a form for the purposes of paragraph ( 3 )(b) and that the Secretary would be required to cause the form to be published on the Department’s website.

Section 115D Offence for failing to comply with a condition of an authorisation

168.           This section creates an offence for failing to comply with an authorisation. A foreign work authorisation may be granted to an individual with conditions. If the individual failed to comply with a condition of an authorisation, the individual would have committed an offence under this section. 

Offence

169.           Subsection (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 that does not comply with the condition. 

170.           The term ‘foreign work authorisation’ is defined in new section 115C .

171.           The penalty for this offence is 5 years’ imprisonment.

172.           The penalty amount imposed for this offence is appropriate in these circumstances. The amount is intended to provide an effective deterrent and reflects the seriousness of the offence. A condition imposes appropriate limits on the individual’s foreign work authorisation or other requirements, including reporting obligations. It is therefore critical that an individual with conditions imposed on their foreign work authorisation appropriately and diligently comply with those conditions.

Geographical jurisdiction

173.           Subsection (2) applies section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) to an offence against this section. Under section 15.2 of the Criminal Code, the effect of Category B jurisdiction is that the offence applies:

a.        if the conduct constituting the offence occurs wholly or partly in Australia, or on board an Australian aircraft or an Australian ship;

b.       if the conduct constituting the offence occurs wholly outside Australia and a result of the conduct occurs wholly or partly in Australia , or wholly or partly on board an Australian aircraft or an Australian ship ;

c.        if the conduct constituting the offence occurs wholly outside Australia and at the time of committing the offence, the person is an Australian citizen, resident or body corporate; and

d.       if the alleged offence is an ancillary offence, the conduct constituting the alleged offence occurs wholly outside Australia and the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct, occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

174.           The effect of this subsection is that the offence for failing to comply with a condition of an authorisation extends to conduct by an Australian resident outside Australia. Work or specified training performed outside Australia represents an increased risk of transfer of sensitive Defence information and knowledge.

175.           Category B jurisdiction is appropriate to ensure that this offence appropriately applies to an act or omission of an act, wherever that act or omission occurs.

176.           Given that failure to comply with conditions for an authorisation is most likely to impact individuals outside Australia, rather than within Australia, it is imperative that section 15.2 of the Criminal Code applies to the offence. The extension of geographical jurisdiction would provide the ability to protect sensitive knowledge-transfer by increasing deterrence and capturing actions or omissions occurring overseas.

177.           The application of geographical jurisdiction (extraterritoriality) in this section is consistent with the Guide to Framing Commonwealth Offences.

Section 115E Cancellation of authorisation

178.           This section provides for mandatory and discretionary cancellation of a foreign work authorisation and for notice of cancellation.

179.           The ability to cancel an authorisation is an important mechanism of the authorisation framework. As the security, defence and international relations of Australia are all matters that can change quickly, it is imperative that the Minister has the ability to cancel an authorisation due to a change in circumstances, whether that be in relation to the foreign work restricted individual, other individual, the relevant foreign country or other relevant circumstances.

180.           For example, rising political instability in a foreign country, such as a military coup or regime change, or a change in the foreign ownership or controlling influence of an entity, could prejudice the security, defence or international relations of Australia.

181.           Similarly, a cancellation of an authorisation for an individual may be necessary in the event that an individual has ceased to perform work or training in a specific area or in a certain function, and wishes to perform work or training in another area or function. While the Bill does not prohibit the Minister granting multiple authorisations for an individual, there may be the need for an authorisation to be cancelled, especially where a request for authorisation conflicts with an authorisation in force.

182.           The term ‘foreign work authorisation’ is defined in new section 115C .

Mandatory cancellation

183.           Subsection (1) provides that the Minister must cancel an authorisation if:

a.        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

b.       the individual requests the Minister to cancel the authorisation.

184.           The effect of this subsection is that the Minister would be required to cancel an authorisation if the circumstances in either paragraph (a) or (b) exist.

185.           For example, if there is a change to the international relations of Australia, and the performance of the individual’s work or provision of training that was specified on the authorisation would prejudice the security, defence or international relations of Australia, then the Minister would be obliged to cancel the authorisation.

186.           Similarly, if the individual was granted an authorisation, and the individual requested that the Minister cancel the authorisation, then the Minister would be obliged to cancel the authorisation.

187.           Subsection (2) provides that the Minister is not required to observe any requirements of the natural justice hearing rule in relation to cancelling an authorisation.

188.           The effect of this subsection is to clearly set out that there is a clear statutory intention to override the common law duty to provide procedural fairness. 

Discretionary cancellation

189.           Subsection (3) provides that the Minister may cancel a foreign work authorisation granted to an individual if the Minister is satisfied that:

a.        the individual has failed to comply with a condition specified in the authorisation; or

b.       the individual knowingly provided information or a document that is false or misleading in making the request for the authorisation, in making a request for a variation of the authorisation or in providing a written statement in response to a notice of a proposed decision in relation to the authorisation; or

c.        it would be appropriate in all the circumstances to cancel the authorisation.

190.           The effect of this subsection is that the Minister has the discretion to cancel an authorisation if a circumstance in paragraphs (a) to (c) exist.

191.           For example, if an authorisation granted to an individual specified conditions in relation to the individual’s term of employment or training and that individual did not comply with that condition, the Minister would have the discretion to cancel the authorisation.

192.           Similarly, if it was found that the individual provided a false document (for example, a false contract of employment) as part of the request for the authorisation, and that document was a material particular of the request, the Minister would have the discretion to cancel the authorisation.

193.           Subsection (3) would also include a note that the Minister must give the individual written notice before cancelling the authorisation under this section. The note would also direct the reader to new section 115J. 

Notice of cancellation

194.           Subsection (4) provides that the Minister must give written notice to the individual of the cancellation of the authorisation as soon as reasonably practicable after making the decision.

195.           The effect of this subsection is that if the Minister decides to cancel an authorisation, the Minister is required to give the individual written notice that their authorisation had been cancelled. The Minister must provide the individual the written notice as soon as practicable.

196.           The term as soon as reasonably practicable will be determined on a case by case basis and may be impacted by the administrative constraints and the reason for the decision.

197.           Subsection (5) provides that the notice must include reasons for the decision, specify the day the cancellation take effect, and set out the individual’s review rights under new sections 115K and 115L . The specified day must not be earlier than the day after the notice is given to the individual.

198.           Subsection (5) includes a note that new section 115M deals with disclosing reasons for decisions.

Section 115F Suspension of authorisation  

199.           This section provides for suspension and lifting of suspension for an authorisation. 

200.           The ability to suspend an authorisation is an important mechanism of the authorisation framework. There are many variables which could potentially change the assessment that underpinned the Minister’s decision to grant the individual an authorisation.

201.           For example, the Minister may have granted the individual an authorisation subject to the condition that the individual would work or provide training for a specific government body, however the individual subsequently failed to comply with this condition. Similarly, the voting power of a public enterprise for government body specified in an individual’s authorisation could change, as could Australia’s geopolitical relationship with a relevant foreign country. In these cases, it may be necessary to suspend an authorisation, pending further request for information, or consideration of the issue. In appropriate circumstances, this may lead to a variation or cancellation of the authorisation.

202.           The term ‘foreign work authorisation’ is defined in new section 115C .

Suspension

203.           Subsection (1) provides that the Minister may, in writing, suspend a foreign work authorisation granted to an individual if the Minister is satisfied that:

a.        the individual has failed to comply with a condition specified in the authorisation; or

b.       it would be appropriate in all the circumstances to suspend the authorisation.

204.           Subsection (1) also includes a note that the Minister must give the individual written notice before suspending the authorisation. The note also directs the reader to new section 115J . 

205.           The broad discretion allowed for the suspension of an authorisation in subsection (1) reflects the complex nature between Australia’s national interests and geopolitical circumstances. Some varying factors include economic, technological and political changes, which all have the potential to impact Australia’s national security interests. It is imperative that the Minister has the ability to rapidly respond where appropriate in all the circumstances as the risks to the security, defence or international relations could be irreparable and time bound. 

206.           Subsection (2) provides that the Minister must give written notice to the individual of the suspension of the authorisation as soon as reasonably practicable after making the decision.

207.           The effect of this subsection is that if the Minister decides to suspend an authorisation, the Minister would be required to give the individual written notice that their authorisation had been suspended. The Minister must provide the individual the written notice as soon as reasonably practicable.

208.           The term ‘as soon as reasonably practicable’ will be determined on a case by case basis and may be impacted by administrative constraints and reason for the decision. This timeframe acknowledges that there may be some delay between the Minister making the decision and the Minister giving the individual the written notice of the decision.

209.           Subsection (3) provides that the notice must include reasons for the decision, specify the period of suspension, and set out the individual’s review rights under new sections 115K and 115L . The specified period must not be earlier than the day after the notice is given to the individual.

210.           Subsection (3) also includes a note that new section 115M deals with disclosing reasons for decisions.

211.           Subsection (4) clarifies that a foreign work authorisation would not be in force while suspended, but the period specified in the authorisation continues to run despite the suspension.

212.           For example, an individual may be granted an authorisation that permits the individual to perform work or training in a relevant foreign country for a period of three years. However, due to a change in circumstances, the Minister suspends the authorisation for a period of two years. After the two-year period, the suspension is lifted. In this scenario, the authorisation period continues to run until the conclusion of the three -year period specified in the authorisation.

213.           Subsection (5) provides that a suspension of an authorisation would not prevent the Minister from cancelling or varying it. New section 115E provides for the cancellation of an authorisation, and new sections 115G and 115H provide for the variation of an authorisation.

214.           The effect of this subsection is that that the Minister may suspend an authorisation under this section, but then also cancel the authorisation under new section 115E . Similarly, the Minister may suspend an authorisation under this section, but then also vary the authorisation under new sections 115G and 115H .

Lifting of suspension

215.           Subsection (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. The written notice would need to be provided to the individual.

216.           For example, the Minister may suspend an individual’s authorisation subject to a particular circumstance, such as a trade embargo. In this scenario, if the particular circumstance was deemed no longer relevant (such as the trade embargo being lifted), the Minister may lift the suspension and notify the individual.

217.           The broad discretion allowed for lifting a suspension of an authorisation in subsection (6) reflects the complex nature between Australia’s national interests and geopolitical circumstances. Some varying factors include economic, technological and political changes, which all have the potential to significantly impact Australia’s national security interests. It is imperative that the Minister has the ability to rapidly respond where appropriate in all the circumstances as the risks to the security, defence or international relations could be irreparable and time critical.

218.           Subsection (7) provides that the notice must specify the day the suspension is lifted.

Section 115G Variation of authorisation—on Minister’s own initiative

219.           This section sets out the process for varying a foreign work authorisation where the Minister initiated the variation.

220.           The ability to vary an authorisation is an important mechanism of the authorisation framework. There are many variables which could potentially change the assessment that underpinned the Minister’s decision to grant the individual an authorisation. This section gives the Minister the option to vary the authorisation without cancelling or suspending the authorisation. The purpose of this section is to give the Minister the necessary flexibility to respond to changes in circumstances without inhibiting the individual’s performance of work or training.  

221.           For example, emerging technologies or sectors may increase the relevance of particular military skills. In these scenarios, varying an authorisation by adding a condition that restricts an individual from providing these particular skills may protect Australia’s national interests without impeding the individual’s work.

222.           The term ‘foreign work authorisation’ would be defined in new section 115C .

Variation on own initiative

223.           Subsection (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:

a.        the individual has failed to comply with a condition specified in the authorisation; or

b.       it would be appropriate in all the circumstances to vary the authorisation.

224.           Subsection (1) also includes a note that the Minister must give the individual a notice before deciding to vary the authorisation. The note also directs the reader to new section 115J . 

Notice

225.           Subsection (2) provides that if the Minister varies the authorisation, the Minister must as soon as reasonably practicable after making the decision:

a.        give a copy of the variation to the individual; and

b.       give the individual a written notice setting out the reason for the decision and the individual’s review rights under sections 115K and 115L .

226.           The copy of the variation must specify the day the variation takes effect. The specified day must not be earlier than the day after the copy is given to the individual.

227.           Subsection (2) also includes a note that new section 115M deals with disclosing reasons for decisions.

228.           The effect of this subsection is that if the Minister decides to vary an authorisation, the Minister would be required to give the individual a copy of the variation and written notice that their authorisation had been varied. The Minister must provide the individual a copy of the variation and the written notice as soon as reasonably practicable.

229.           The term ‘as soon as reasonably practicable’ will be determined on a case by case basis and may be impacted by administrative constraints and reason for the decision.

Section 115H Variation of authorisation—on request

230.           This section sets out the process for varying a foreign work authorisation where the individual requested the variation.

231.           The ability to vary an authorisation is an important mechanism of the authorisation framework. There are many variables which could potentially cause for the individual to make a request to the Minister to vary the authorisation. This section would allow the individual to request that the Minister vary the authorisation, prior to the authorisation expiring. Not only would this section promote the individual to share information affecting the application with the Minister but it would also give the individual greater flexibility.

232.           The purpose of this section is to give the Minister the discretionary power to assess the variation request made by the individual against the original criteria of the authorisation, to determine whether the variation would be authorised or refused. The flexibility to respond to changes in circumstances without inhibiting the individual’s performance of work or provision of training.

233.           For example, emerging technologies or sectors may increase the relevance of particular military skills. In these scenarios, varying an authorisation by adding a condition that restricts an individual from providing these particular skills may protect Australia’s national interests without impeding the individual’s work.

234.           The term ‘foreign work authorisation’ is defined in new section 115C .

235.           Subsections (1) and (2) sets out the process for requesting a variation to an authorisation

Request for variation

236.           Subsection (1) provides that an individual may request the Minister to vary a foreign work authorisation granted to the individual. 

237.           Subsection (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 details about the approved form is provided in subsection 115H (6).

238.           By requiring an individual to provide information or documents, this subsection may require the provision of personal information. It is intended that the powers and functions in the Bill would be exercised in compliance with the Privacy Act 1988 (the Privacy Act).

239.           Subsection (2) also includes a note that an individual may commit an offence if the individual provides false or misleading information or documents and refers the reader to sections 137.1 and 137.2 of the Criminal Code. The effect of this note is to clarify that if the individual provides false or misleading information or documents, as part of the individual’s request for variation of authorisation, the individual may commit an offence under section 137.1 and/or 137.2 of the Criminal Code.

Decision to vary, or to refuse to vary, authorisation

240.           Subsection (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.

241.           Subsection (3) also includes a note that the Minister must give the individual written notice before varying the authorisation in a way that is different from the variation requested or before refusing to vary the authorisation. The note also directs the reader to new section 115J .

242.           The effect of this subsection is that once an individual has made a request, the Minister must as soon as reasonably practicable either vary or refuse to vary a foreign work authorisation.

243.           The term ‘as soon as reasonably practicable’ will be determined on a case by case basis and may be impacted by the volume of information and documents included in the request.

244.           For example, an individual’s request for variation that includes considerable information and documents may require extensive time to examine. Similarly, a request to vary that involves a simple change (for example, changing the end date of a work opportunity by a week) may require considerably less time than a request to vary the work performed by the individual as part of their employment.

Notice

245.             Subsection (4) provides that if the Minister varies the authorisation, the Minister must as soon as reasonably practicable after making the decision:

a.        give a copy of the variation to the individual; and

b.       if the variation is different from the requested variation, give the individual a written notice setting out the reason for the decision and the individual’s review rights under sections 115K and 115L .

246.           The copy of the variation must specify the day the variation takes effect. The specified day must not be earlier than the day after the copy is given to the individual.

247.           Subsection (4) also includes a note that new section 115M deals with disclosing reasons for decisions.

248.           The effect of this subsection is that if the Minister decides to vary an authorisation, the Minister would be required to give the individual a copy of the variation and written notice that their authorisation had been varied. The Minister must provide the individual the copy of the variation and the written notice as soon as practicable.

249.           The term ‘as soon as reasonably practicable’ will be determined on a case by case basis and may be impacted by administrative constraints and reason for the decision.

250.           Subsection (5) provides that if the Minister refuses to vary the authorisation, the Minister must as soon as practicable, give the individual written notice of the refusal. The notice must include reasons for the refusal and set out the individual’s review rights under new sections 115K and 115L .

251.           Subsection (5) also includes a note that new section 115M deals with disclosing reasons for decisions.

 

 

Approved form

252.           Subsection (6) provides that the Secretary may, in writing, approve a form for the purposes of paragraph (2)(b) and that the Secretary would be required to cause the form to be published on the Department’s website.

Section 115J Notice before decision about authorisation

253.           This section sets out the requirement that the Minister give an individual written notice before making a decision about an authorisation.

254.           The effect of this section is to require that the Minister provide notice to an individual about a proposed decision, prior to making the decision. The purpose of this section would be to allow an individual to provide supporting evidence, material or information to the Minister which may not have previously been available to the Minister prior to the Minister making a decision.

255.           Subsection (1) provides that the Minister must not make a decision covered by subsection (5) unless the Minister has given the individual written notice of the proposed decision.

256.           Subsection (2) provides that the notice must state the proposed decision, include the reasons for the proposed decision, and invite the individual to give to the Minister , a written statement relating to the proposed decision. The individual is required to give the Minister the written statement within a period specified in the notice.

257.           Subsection (2) also includes a note that new section 115M deals with disclosing reasons for decisions.

258.           The effect of this subsection is that if the Minister was seeking to make a decision, and that decision was set out in subsection (5), the Minister would be required to provide the individual written notice setting out what the proposed decision was, the reasons for the proposed decision and invite the individual to give the Minister a written statement in response. 

259.           Subsection (3) clarifies that the period specified in the notice must not be less than 14 days beginning on the day the notice is given to the individual.

260.           For example, the notice provided by the Minister may specify that the individual had 28 days after the day the notice was given to the individual.

261.           Subsection (4) provides that the Minister must consider any written statement given to the Minister within the specified period before making a decision covered by subsection (5).

262.           The effect of this subsection is that the Minister would be required to consider a written statement provided by the individual, provided that the decision is a decision listed in subsection (5) and provided that the written statement was given to the Minister within the period of time specified in the notice.

263.           Subsection (5) lists the decisions that are covered by this subsection. The list includes:

a.        a decision to refuse to grant an individual an authorisation;

b.       a decision to grant an individual a foreign work authorisation that that is different from the authorisation requested;

c.        a decision to grant an individual a foreign work authorisation subject to one or more conditions;

d.       a decision to cancel a foreign work authorisation;

e.        a decision to suspend a foreign work authorisation;

f.         a decision to vary a foreign work authorisation on the Minister’s own initiative;

g.       a decision to refuse to vary a foreign work authorisation given to an individual;

h.       a decision to vary a foreign work authorisation granted to an individual in a way that is different from the variation requested.

264.           Subsection (6) clarifies that this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

265.           It is broadly recognised that procedural fairness is a fundamental common law right to ensure that decision-making is fair. The effect of this section is to clarify that the hearing rule applies in relation to decisions listed under subsection (5).

266.           The fair hearing rule ensures that people who are adversely affected by a decision are given adequate opportunity to prepare and make submissions to the decision-maker prior to the decision being made. This section effectively provides a statutory form of the hearing rule: a person affected by a proposed decision covered by subsection (5) is expressly given an opportunity to express their views before the decision is made. This is accompanied by further procedural benefits and entitlements that go beyond what would be required at common law, such as a requirement to provide a statement of reasons and the availability of review by the Administrative Appeals Tribunal.

267.           Subsection (6) makes it clear that the policy intent is for the new framework to be administered in accordance with the procedural fairness requirements set out in this section.

Internal and External Review of Decisions

268.           New sections 115K and 115L provide for review of decisions made under new Part IXAA. There are two avenues of merits review: internal reconsideration by the Minister and external review by the Administrative Appeals Tribunal.

269.           The purpose of merits review is to ensure that decisions made are correct and preferable according to the facts on which the decision was based, and that all persons affected by a decision are treated fairly.

270.           Allowing access to internal review and external merits review would encourage the quality, consistency, openness and accountability in decisions made by the Minister or decisions made by delegates of the Minister.

Section 115K Internal review of decisions

271.           This section sets out the internal review process for decisions made under new Part IXAA including an application, review of decisions, the approved form and relevant definitions.

272.           The internal review process provides an opportunity for the affected person to put their case to the Minister, through a process that would generally be less costly and time consuming than external merits review. This process allows the Minister to review a decision to ensure that the decision made is correct and preferable according to the facts on which the decision was based, and that all persons affected by a decision are treated fairly.

273.           While this section enables an affected person to seek an internal review of their decision, should the affected person still be dissatisfied with the decision, the affected person would be able to apply to the Administrative Appeals Tribunal for external merits review. 

274.           Subsections (1) to (3) set out the process for making an application for internal review of decisions. 

Application for internal review

275.           Subsection (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.

276.           Subsection (1) also includes a note that directs the reader to subsection (9) for the list of reviewable decisions.

277.           Subsection (2) requires that the application 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 details about the approved form is provided in subsection 115K (8).

278.           By requiring an individual to provide information or documents, this subsection may require the provision of personal information. It is intended that the powers and functions in the Bill would be exercised in compliance with the Privacy Act.

279.           Subsection (3) clarifies that subsection (1) does not apply to a reviewable decision that is made by the Minister personally.

280.           The effect of this subsection is that where the Minister made a reviewable decision, a person whose interests are affected by the decision would not be permitted to apply to the Minister for a review. Where a decision has been made by the Minister personally, external review rights would be available to the affected person under new section 115L .

Review of decision

281.           Subsections (4) to (8) set out the process for the review of the decision.

282.           Subsection (4) provides that on application for review of a reviewable decision, the Minister must review the decision and affirm, vary or revoke the decision.

283.           Subsection (5) provides that the Minister must give written notice to the applicant of the Minister’s decision to affirm, vary or revoke the reviewable decision within 90 days after receiving the application.

284.           Subsection (6) clarifies that the notice must include reasons for the decision and set out the applicant’s review rights under new section 115L .

285.           Subsection (6) also includes a note that new section 115M deals with disclosing reasons for decisions.

286.           Subsection (7) provides that the Minister would be taken to have made a decision affirming the original decision if the Minister does not give the applicant the notice within the 90-day period.

Approved form

287.           Subsection (8) provides that the Secretary may, in writing, approve a form for the purposes of paragraph (2)(b) and that the Secretary is required to cause the form to be published on the Department’s website.

Reviewable decision

288.           Subsection (9) provides that each of the following decisions is a reviewable decision:

a.        a decision to refuse to grant an individual an authorisation;

b.       a decision to grant an individual a foreign work authorisation that is different from the authorisation requested;

c.        a decision to grant an individual a foreign work authorisation subject to one or more conditions; or

d.       a decision to cancel a foreign work authorisation; or

e.        a decision to suspend a foreign work authorisation; or

f.         a decision to vary a foreign work authorisation on the Minister’s own initiative; or

g.       a decision to refuse to vary a foreign work authorisation given to an individual; or

h.       a decision to vary a foreign work authorisation granted to an individual in a way that is different from the variation requested.

289.           Internal review is not available if a decision is not listed under subsection (9) as a reviewable decision .

290.           This 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) Act 1977 (Administrative Decisions (Judicial Review) Act) or in accordance with common law principles.

Section 115L AAT review of decisions

291.           This section provides for review of certain decisions by the Administrative Appeals Tribunal.

292.           This section provides that applications may be made to the Administrative Appeals Tribunal for review of the following decisions:

a.        a reviewable decision that is made by the Minister personally;

b.       a decision of the Minister made under section 115K to affirm, vary or revoke a reviewable decision.

293.           This section also includes a note that the Minister may be taken to have affirmed a reviewable decision and refers the reader to new subsection 115K (7).

294.           A reviewable decision is a decision listed in paragraphs (a) to (h) under subsection 115K (9).

295.           The purpose of this section is to ensure that administrative decisions that will, or are likely to, affect the rights and interests of a person should be reviewable on its merits.

296.           The reviewable decisions in paragraphs (a) to (h) under subsection 115K (9) relate to authorisations and foreign work authorisations that would likely affect an individual’s interests are therefore suitable for merits review.

297.           Similarly, decisions of the Minister made under section 115K to affirm, vary or revoke a reviewable decision relate to authorisations and foreign work authorisations that would likely affect an individual’s interests and are therefore suitable for merits review. Additionally, providing for external merits review by the Administrative Appeals Tribunal for review decisions made, affirmed, varied or revoked by the Minister would ensure that a fair and independent review can be undertaken. 

298.           This 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) Act or in accordance with common law principles.

Section 115M Disclosure of reasons for decision

299.           This section permits the Minister not to be required to disclose reasons for certain decisions. If the reasons for a decision would prejudice the security, defence or international relations of Australia, the Minister would be obliged under this section to not to disclose those reasons. However, the Minister would need to state in the notice that the reasons were not disclosed because of this fact.

300.           Subsection (1) provides that if the Minister makes or proposes to make certain decisions and there is a requirement that reasons be given in a notice under this Part, the notice must not disclose any reasons where the Minister reasonably believes the disclosure would prejudice the security, defence or international relations of Australia. The decisions and proposed decisions are:

a.        a proposed decision covered by subsection 115J (5)

b.       a reviewable decision; and

c.        a decision under section 115K to affirm, vary or revoke a reviewable decision.

301.           Subsection (2) provides that if the reasons are not disclosed in a notice under this Part because of subsection (1), the notice must state that fact.

302.           For example, the Minister proposes to make a decision to suspend a foreign work authorisation under new section 115F . There would be a requirement under that section to provide a notice to the individual that includes the reasons for the decision. If the Minister reasonably believes that the disclosure of any reasons in relation to this decision would prejudice the security, defence or international relations of Australia, the Minister would be obliged under this section to not to disclose those reasons. However, the Minister would need to makes clear in the notice that certain reasons were not disclosed because of this fact.

Division 5—Other matters

Section 115N Delegation by Minister

303.           This section provides for the Minister to delegate their functions or powers under this Part.

304.           Subsection (1) provides that the Minister may, in writing, delegate all or any of the Minister’s functions or powers under this Part to officers who hold a rank not below the rank of Commodore (Navy), Brigadier (Army), Air Commodore (Air Force), or an SES employee in the Department. The inclusion of senior (SES equivalent) military officers reflects the integrated nature of the workforce.

305.           Subsection (1) also includes a note that sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

306.           Subsection (2) clarifies that the Minister must not delegate the Minister’s power to make a legislative instrument under new section 115. New section 115 provides that the Minister may determine a foreign country for the purpose the definition of relevant foreign country in section 113.

307.           Delegates would be limited to senior military officers and APS employees, specifically officers who hold a rank not below the rank of Commodore (Navy), Brigadier (Army), Air Commodore (Air Force), or an SES employee or acting SES employee in the Department.

Section 115P Review of this Part

308.           Section 115P provides for review of new Part IXAA. Subsection 115P(1) provides 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.

309.           Under subsection 115P(2), the review must commence as soon as practicable after the end of 5 years after Part IXAA commences. Subsection 115P(3) provides that the review must be given to the Minister in a written report. Subsection 115P(4) provides that the Minister must cause a copy of the 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.

310.           This mechanism allows the government to ensure that the legislation remains current and the impact remains proportional to the security risks.

Item 2 - Application of amendments - performing work for a foreign military organisation or government body

311.           This item provides for the application of the amendments made by new section 115A of the Bill.

312.           Sub-item 2(1) provides that new section 115A, as inserted by the Bill, applies in relation to an individual who performs work on or after the start day, whether the individual ceased to be a defence staff member before, on or after that day. Start day is defined in sub-item 2(2) to mean the day after 3 months from the item commences, which, under the commencement provision, is when the Bill commences.

313.           However, for certain individuals described in sub-item 2(3), the start day is calculated differently. Such an individual is someone who, immediately before the commencement of this item, is performing work for, or on behalf of, a military organisation, or government body, of a relevant foreign country, or someone who or starts to perform such work after that commencement and before the end of the period of 3 months beginning on the day this item commences and in either case, who, on or after that commencement and before the end of that 3-month period, makes a request under new section 115C, as inserted by the Bill, for a foreign work authorisation for that work.

314.           For these individuals, the start day is either, if the individual’s request for a foreign work authorisation is approved, the day after the individual is given a copy of the authorisation or, if the individual’s request for a foreign work authorisation is refused, the day after the Minister gives the individual written notice of the refusal.

Item 3 - Application of amendments - providing training to a foreign military organisation or government body

315.           This item provides for the application of the amendments made by new section 115B of the Bill.

316.           Sub-item 3(1) provides that new section 115B, as inserted by the Bill, applies in relation to an individual who provides training on or after the start day. Start day is defined in subitem 3(2) to mean the day after 3 months from the day the item commences, which, under the commencement provision, is when the Bill commences.

317.           However, for certain individuals described in sub-item 3(3), the start day is calculated differently. Such an individual is someone who, immediately before the commencement of this item, is providing training to, or on behalf of, a military organisation, or government body, of a relevant foreign country, where the training is of a kind covered by new paragraph 115B(1)(d), as inserted by the Bill, or someone who or starts to provide such training after that commencement and before the end of the period of 3 months beginning on the day this item commences and who, on or after that commencement and before the end of that 3-month period, makes a request under new section 115C, as inserted by the Bill, for a foreign work authorisation for that training.

318.           For these individuals, the start day is either, if the individual’s request for a foreign work authorisation is approved, the day after the individual is given a copy of the authorisation or, if the individual’s request for a foreign work authorisation is refused, the day after the Minister gives the individual written notice of the refusal.

 

Examples

Example 1 - both Items

319.           If the Bill commenced on 1 January 2024, the start day under both Item 1 and Item 2 would be 1 April 2024, as this would be the day after 3 months from 1 January 2024. In this scenario, if the individual performed work , or provided training, on or after 1 April 2024, the offence provisions under new section 115A and 115B would be enlivened in relation to that individual from 1 April 2024.

320.           Under Item 1, the offence provision in new section 115A would apply whether the individual ceased to be a defence staff member on or after that day. Under Item 2, the offence provision in new section 115B would only apply where the individual provided training on or after the start day.

 

Example 2 - Item 1 (work)

321.           If the Bill commenced on 1 January 2024, the end of the period of 3 months beginning on the day this item would be 1 April 2024, as this would be the day 3 months after 1 January 2024.

322.           If an individual was performing work immediately before 1 January 2024, or started to perform such work after 1 January 2024 and before 1 April 2024, and that individual had made a request under new section 115C for a foreign work authorisation for that work between 1 January 2024 and 1 April 2024, the start day would depend on whether the Minister authorised , or refused , the individual’s request .

323.           If, in response to the request, the Minister grants a foreign work authorisation individual under section 115C , the start day would be the day after the individual is given a copy of the authorisation. If the copy of the authorisation was given to the individual on 1 May 2024, the start day would be 2 May 2024.

324.           The effect of this would be that the offence under new section 115A would apply in relation to that individual from 1 May 2024. In this scenario, while the offence provision would apply to the individual from 2 May 2024, as the individual has been granted an authorisation, the individual would not be committing an offence whilst the authorisation was in force.

325.           If, in response to the request, the Minister refuses to grant the individual a foreign work authorisation for the work, the start day would be the day after the Minister gives the individual written notice of the refusal. If the written notice of the refusal was given to the individual on 1 June 2024, the start day would be 2 June 2024.

326.           The effect of this would be that the offence under new section 114A would apply in relation to that individual from 2 June 2024. In this scenario, if the individual performed work for, or on behalf of, a military organisation, or government body, of a relevant foreign country on or after 2 June 2024, the individual would be committing an offence under section 115A.

 

Example 3 - Item 2 (training)

327.           If the Bill commenced on 1 January 2024, the end of the period of 3 months beginning on the day this item would be 1 April 2024, as this would be the day 3 months after 1 January 2024.

328.           If an individual was providing training immediately before 1 January 2024 , or started to provide training after 1 January 2024 and before 1 April 2024 , and the training was of a type covered by new paragraph 115B(1)(d), and that individual had made a request under new section 115C for a foreign work authorisation for that training between 1 January 2024 and 1 April 2024, the start day would depend on whether the Minister authorised, or refused , the individual’s request.

329.           If, in response to the request, the Minister grants a foreign work authorisation individual , the start day would be the day after the individual is given a copy of the authorisation. If the copy of the authorisation was given to the individual on 1 May 2024, the start day would be 2 May 2024.

330.           The effect of this would be that the offence under new section 115B would apply in relation to that individual from 1 May 2024. In this scenario, while the offence provision would apply to the individual from 2 May 2024, as the individual has been granted an authorisation, the individual would not be committing an offence whilst the authorisation was in force.

331.           If, in response to the request, the Minister refuses to grant the individual a foreign work authorisation for the training , the start day would be the day after the Minister gives the individual written notice of the refusal. If the written notice of the refusal was given to the individual on 1 June 2024, the start day would be 2 June 2024.

332.           The effect of this would be that the offence under new section 115B would apply in relation to that individual from 2 June 2024. In this scenario, if the individual provided training for, or on behalf of, a military organisation, or government body, of a relevant foreign country on or after 2 June 2024, the individual would be committing an offence under section 114.

 

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 (the Bill) amends the Defence Act 1903 (the Defence Act), through the insertion of new Part IXAA which regulates the work that certain former defence staff members—called foreign work restricted individuals—can perform without a foreign work authorisation. The Bill also regulates the training that people, other than foreign work restricted individuals, can provide without a foreign work authorisation.

The effect of the Bill is that:

·          A foreign work restricted individual will commit an offence if the individual performs works for, or on behalf of, a military organisation, or government body, of a relevant foreign country, unless the Minister for Defence has granted the individual a foreign work authorisation for that work, or another exception applies.

·          An individual, other than a foreign work restricted individual, will commit an offence if the individual provides training to, or on behalf of, a military organisation, or government body, of a relevant foreign country:

o    relating to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List; or

o    training relating to military tactics, military techniques or military procedures

unless the Minister for Defence has granted the individual a foreign work authorisation for that training, or another exception applies.

·          The Minister may, by legislative instrument, determine a class of individuals who are not to be treated as foreign work restricted individuals, including by reference to the kinds of work previously performed by the individual as a defence staff member and the period of time that has elapsed since they performed that work.

·          The Minister has the power to make a legislative instrument to exclude a foreign country from being a relevant foreign country to which the offences in Part IXAA apply.

·          An individual may make a request to the Minister for a foreign work authorisation.

·          The Minister may decide to grant (with or without conditions), or to refuse to grant, a foreign work authorisation.

·          If a foreign work authorisation is granted to an individual, the authorisation may be granted subject to conditions, and may be cancelled, suspended or varied in certain circumstances.

·          An individual must be given an opportunity to make a written statement before the Minister makes certain adverse decisions in relation to foreign work authorisations.

·          An individual may seek internal or external merits review of certain decisions made under the foreign work authorisation provisions. For decisions that are not made by the Minister personally, internal review must be sought before external review to the Administrative Appeals Tribunal.

Human rights implications

This Bill engages the following rights:

·          the presumption of innocence in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR);

·          the prohibition on torture, or other cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR;

·          the right to privacy and reputation under Article 17 of the ICCPR;

·          the right to work in Article 6 and Article 4 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

·          the right to a fair hearing in Article 14(1) of the ICCPR.

Legitimate objective of the Bill

 

Under international human rights law, any limitation on rights and freedoms must be reasonable, necessary and proportionate for the pursuit of a legitimate objective. For an objective to be legitimate, it must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

 

Presumption of innocence

 

Article 14(2) of the ICCPR provides that ‘everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty’. In General Comment No. 32 (CCPR/C/GC/32), the United Nations Human Rights Committee provides that the presumption of innocence ‘imposes on the prosecution the burden of proving the charge’. In effect the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. The presumption of innocence may be limited provided the limitation ‘is reasonable in the circumstances’ and necessary and proportionate to achieve a legitimate objective.

 

The Bill limits the presumption of innocence by placing an evidentiary burden on the defendant with respect to exceptions to the offence provisions in the Bill.

 

 

 

Burden of proof

The Bill creates a number of specific exceptions applying to the offences in the Bill, which provides that a defendant bears the evidential burden in proving the elements of the exception. Consistent with section 13.3 of the Criminal Code Act 1995 (the Criminal Code), this burden requires the defendant adduce or point to evidence that suggests a reasonable possibility that a particular matter exists or does not exist. 

It is reasonable and necessary for the evidential burden of proof to be placed on the defendant in raising any defence where the facts in relation to the defence are within the knowledge of the defendant.

For example, for an exception under proposed subsection 115A(2) a defendant should be readily able to point to evidence that there is a foreign work authorisation in force that authorises the individual to work for, or on behalf of, the military organisation, or the government body, of the relevant foreign country. As part of the process to be granted a foreign work authorisation under section 115A, the Minister is required to give the individual a copy of the authorisation that specifies the period the authorisation is in force. The individual would therefore have a copy of the authorisation and be able to readily point to the authorisation as evidence in support of their defence. For an exception under proposed subsection 115B(2), a defendant should similarly be able to adduce evidence that there is a foreign work authorisation in force that authorises the individual to provide training to, or on behalf of, the military organisation, or the government body, of the relevant foreign country for the same reasons as described above.

For an exception under proposed subsection 115A(3), a defendant should be readily able to point to evidence that the work performed by the individual is authorised by a written agreement to which the Commonwealth of Australia is a party. The defendant should know the existence of the type of agreement therein, and to provide evidence in relation to that agreement. This may include correspondence from the Commonwealth to the individual in relation to the agreement, and other relevant official documentation in the individual’s possession. For an exception under proposed subsection 115B(3), a defendant should similarly be able to provide evidence that the training provided by the individual is authorised by a written agreement to which the Commonwealth of Australia is a party for the same reasons as described above.

For an exception under proposed subsection 115A(4), a defendant should be readily able to point to evidence that 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 the armed forces 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 force. The defendant would have direct knowledge of their capacity in or with the armed forces and the status of the armed forces, and therefore be in a position to point to evidence that supports this. Similarly, the defendant should be readily able to point to evidence that they acquired in relation to a declaration under subsection 119.8(1) of the Criminal Code from a publicly available source. Noting these reasons, for an exception under proposed subsection 115B(4), a defendant should similarly be able to point to evidence that the training provided by the individual is solely in the course of, and as part of, the individual’s service in any capacity in or with the armed forces and a declaration under subsection 119.8(1) of the Criminal Code covers the individual and the circumstances of their service in or with the force.

For an exception under proposed subsection 115A(5), a defendant should be readily able to point to evidence that the work performed by the individual is done in the course of, and as part of, the individual’s employment or engagement by the Commonwealth. The defendant would have direct knowledge of the existence of the type of agreement therein and to provide evidence in relation to that agreement. This may include employment or engagement correspondence from the Commonwealth to the individual, and any payslips in the individual’s possession. For an exception under proposed subsection 115B(5), a defendant should similarly be readily able to point to evidence that the training provided by the individual is done in the course of, and as part of, the individual’s employment or engagement by the Commonwealth, for the same reasons as described above.

For an exception under proposed subsection 115A(6), a defendant should be readily able to point to evidence that the work performed by the individual is solely or primarily for providing aid of a humanitarian nature and/or performing official duty for the United Nations, an agency of the United Nations, or the International Committee of the Red Cross. The defendant would have direct knowledge of whether the work performed by them is solely or primarily for providing humanitarian aid or performing duty for a humanitarian agency, and therefore be in a position to point to evidence that supports this. This may include correspondence from the humanitarian agency they perform work for, and relevant duty statements. For an exception under proposed subsection 115B(6), a defendant should similarly be readily able to point to evidence that the training provided by the individual is solely or primarily for providing aid of a humanitarian nature and/or performing official duty for the United Nations, an agency of the United Nations, or the International Committee of the Red Cross, for the same reasons as described above.

The prosecution will still be required to prove each element of the offence beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will also be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.

On this basis, any potential limitations on the right to the presumption of innocence arising from the defendant’s obligation to bear the evidential burden in relation to raising any defence are reasonable, necessary and proportionate to achieve the legitimate objective of protecting the security, defence and international relations of Australia.

 

Prohibition on torture, or other cruel, inhuman or degrading treatment or punishment

 

Article 7 of the ICCPR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The text of Article 7 allows no limitation.

The Bill engages the prohibition on torture, cruel, inhuman or degrading treatment by providing for penalties of imprisonment for three offences, specifically:

·          the offence for performing work for a military organisation or government body of a foreign country under section 115A;

·          the offence for providing training to a foreign military organisation or government body under section 115B; and

·          the offence for failing to comply with a condition of an authorisation under section 115B.

Penalties of imprisonment may amount to cruel, inhuman or degrading treatment where the application of the penalty is disproportionate to the offending or the offence committed.

The maximum penalties in the Bill under sections 115A and 115B have been set at a level that is adequate to effectively deter and punish a worst case scenario.

The maximum penalty imposed for this offence is consistent with the established principal of Commonwealth criminal law policy as set out in the Attorney-General’s Department’s A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide to Framing Commonwealth Offences) to impose a higher penalty where the consequences of the offence are particularly dangerous or damaging. The maximum penalty amount also complements comparable offences in other Commonwealth legislation. For example, the offence under section 83.3 of the Criminal Code for provision of military-style training in relation to foreign government principals or foreign political organisations also has a maximum penalty of 20 years. Other comparable offences with similar penalties include secrecy, sabotage, and foreign interference offences under the Criminal Code.

 

Right to privacy

 

Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The United Nations Human Rights Committee have interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy may be limited where the limitation is lawful and not arbitrary, and where it is reasonable, necessary and proportionate to achieve a legitimate objective.

The Bill limits the right to privacy in that it will:

·          require an individual to provide information or documents in making a request for a foreign work authorisation;

·          require an individual to provide information in making a request for a variation of a foreign work authorisation;

·          require an individual provide a written statement in response to a notice of a proposed decision in relation to a foreign work authorisation;

·          require an applicant to provide information or documents in making an application for internal review of a decision.   

The collection, use and disclosure of personal information may therefore engage the prohibition on arbitrary interference with privacy.

These provisions of the Bill are necessary for the legitimate objective of assessing the suitability of an individual to be granted a foreign work authorisation, varying a foreign work authorisation, considering a response to a notice of a proposed decision in relation to a foreign work authorisation, and assessing the merits on which a decision was made as part of an internal review process. The Minister (or the Minister’s delegate) will require access to this information or these documents to properly and effectively assess and consider the request, response or application. The powers and functions in the Bill would be exercised in compliance with the Privacy Act 1988 .

Guidance from the Parliamentary Joint Committee on Human Rights indicates that whether a person has a reasonable expectation of privacy in the circumstances is relevant to the issue of determining whether a statutory provision is permissible. An individual who provides information as part of a request process, a response to a notice of a proposed decision, or as part of an application process for a review of a decision, will do so voluntarily based on informed and expressed consent. An individual who has voluntarily provided information or document would expect that a certain amount of personal information will need to be provided to the Minister (or a delegate of the Minister) for the request or application to be considered and assessed.

The interference with privacy is not arbitrary in these circumstances because the information the person needs to provide will be set out in the Bill and in an approved form that will be published on the Department’s website.

On this basis, to the extent that the provisions in the Bill engage the prohibition on arbitrary interference with privacy under Article 17 of the ICCPR, this power is prescribed by law and not arbitrary. Accordingly, the limitation to the right to privacy is reasonable, necessary and proportionate to achieve the legitimate objective of protecting the security, defence and international relations of Australia.

 

Rights to work

 

Article 6 of the ICESCR recognises the right of every person to the opportunity to gain a living by work which they freely choose or accept, and to take appropriate steps to safeguard this right. Article 6(1) of the ICESCR protects the right of every person to the opportunity to gain their living by work which they freely choose or accept. Article 4 of the ICESCR provides that countries may subject economic, social and cultural rights only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’.

The Bill regulates the work that certain former defence staff members—called foreign work restricted individuals—may perform. These individuals will commit an offence if they perform work for, or on behalf of, a military organisation, or government body, of a relevant foreign country.

The Bill also regulates the training that non-foreign work restricted individuals can provide. These individuals will commit an offence if they provide certain training for, or on behalf of, a military organisation, or government body, of a relevant foreign country.

However, the relevant offences will not apply to work performed or training provided if the Minister has granted the individual a foreign work authorisation, or if other exceptions apply. The Bill also provides the Minister the discretion to suspend and vary a foreign work authorisation and requires mandatory cancellation in certain circumstances. By regulating the performance of work by foreign work restricted individuals and the provision of training by non-foreign work restricted individuals, the Bill will limit the right to work.

While the Bill engages the right of persons to work, the scope of impacted individuals is restricted to certain people and certain circumstances.

Specifically, the Bill will apply to certain former defence staff members, who are seeking to perform work for, or on behalf of, a military organisation, or government body, of a relevant foreign country.

Many former defence staff members would have distinct and highly valuable specialist skills, and knowledge of Defence secrets, particularly in relation to sensitive Defence capability, personnel and operations. Permitting these former members to perform work for, or on behalf of, foreign military organisations or foreign government bodies, without any oversight or restriction would have the potential to significantly undermine the interests of Australia and Australia’s allies, and cause immeasurable and irreparable damage to Australia’s security, defence and international relations.

The Bill will also apply to Australian citizens or permanent residents who are not Defence staff members, who are providing certain training to, or on behalf of, a military organisation, or a government body, of a relevant foreign country. The training would specifically relate to either:

·          goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List; or

·          military tactics, military techniques or military procedures.

Part 1 of the Defence and Strategic Goods List covers defence and related goods, with those goods and technologies designed or adapted for use by armed forces or goods that are inherently lethal. Broadly, these goods include:

·          Military Goods, being goods, software or technology that are designed or adapted for military purposes, including their parts and accessories; and

·          Non-Military Lethal Goods, being equipment that is inherently lethal, incapacitating or destructive such as non-military firearms, non-military ammunition and commercial explosives and initiators.

The gravity of the threat posed demonstrates a need to deter and prevent such performance of work and provision of training, unless the Minister (or a delegate) determines that the performance of the work or the provision of the training by the individual would not prejudice the security, defence or international relations of Australia. Section 115C permits these individuals to make a request to the Minister for a foreign work authorisation to:

·          perform specified work for, or on behalf of, a specified military organisation, or a specified government body, of a specified relevant foreign country; or

·          provide specified training to, or on behalf of, a specified military organisation, or a specified government body, of a specified relevant foreign country.

The Minister will consider a range of factors when making the decision to ensure Australia’s interest are protected, including imposing appropriate conditions to reduce any risk.  If granted, the foreign work authorisation would permit the individual to gain a living by performing the work or providing the training, which they choose or accept.

The Bill imposes a mandatory obligation on the Minister to cancel a foreign work authorisation, which must occur where the Minister reasonably believes, as a result of 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. Similarly, suspension or variation of a foreign work authorisation may occur where the individual failed to comply with a specified condition or where it would be appropriate in all the circumstances.

The limitations on the right to work as proposed under the Bill are proportionate to the legitimate objective to deter foreign military organisations and foreign government bodies from recruiting individuals to perform work or provide training due to their distinct and highly valuable specialist skills, and knowledge of Defence secrets or sensitive military technology. The Bill aims to administer the least restrictive alternatives by balancing the right of every person to gain a living by work which they freely choose or accept, while promoting the general welfare, security, defence and international relations of Australia.

On this basis, to the extent that the provisions in the Bill engage the right to work under Article 6 and Article 4 of the ICESCR, this limitation is compatible with the promotion the general welfare in a democratic society.

 

Right to a fair trial and right to a fair hearing

 

Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals, and in the determination of rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

It is generally accepted that Article 14(1) of the ICCPR encompasses certain essential elements, such as the principle of equality of arms, the respect of adversarial proceedings and basic components of due process of law. The guarantee of equality of arms demand that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.

The Bill engages the right to a fair trial and a fair hearing under Article 14(1) as section 115K has the potential to limit the right to equality of arms. Section 115M requires that the Minister not disclose the reasons for certain decisions. Specifically, if the Minister:

·          proposes to make a decision under subsection 115J(5); or

·          makes a reviewable decision; or

·          makes a decision under section 115K to affirm, vary or revoke a reviewable decision

the Minister is required not to disclose reasons for such a decision where the Minister reasonably believes that the disclosure would prejudice the security, defence or international relations of Australia. A decision to withhold reasons is not reviewable internally by the Minister under section 115K or reviewable by the Administrative Appeals Tribunal through merits review under section 115L. By requiring the reasons for decisions or proposed decisions to be withheld from a statement of reasons, section 115M may limit the right to a fair hearing under Article 14(1).

The Bill also engages the right to a fair trial and a fair hearing under Article 14(1) as subsections 115E(1) and (2) permit the Minister to cancel a foreign work authorisation without requiring the Minister to observe the natural justice hearing rule in relation to the cancellation. The effect of sections 115E and 115M is that the Minister is permitted to cancel an authorisation, without providing reasons for the decision to cancel or affording natural justice to the individual about the decision.

Whether any limitation on the right to a fair trial and a fair hearing is permissible depends upon whether the limitation is aimed at achieving a legitimate objective and is reasonable, necessary and proportionate.

The non-disclosure requirement set out in section 115M achieves the legitimate objective of preventing the disclosure of classified information to ensure the security, defence or international relations of Australia. Given the nature of the proposed Bill, it is inevitable that certain classified information or document from intelligence organisations or other confidential sources will be considered when making a decision. While certain classified information is likely to be relevant to the decision-making process and considered as part of the Minister’s decision, the subsequent release of the classified information to the applicant would not be appropriate based on national security and public interest considerations, and may put intelligence officers in harm’s way.

While the principle of equality of arms guarantees that each side be given the opportunity to consider and contest evidence provided by the other party, to do so in certain circumstances could cause damage to Australia’s international security reputation, intelligence gathering capability, military and business operations, and international relations.

Despite section 115M requiring the reasons for decisions to be withheld from a statement of reasons, this non-disclosure would be limited to specific decisions where the Minister reasonably believes that disclosure would prejudice the security, defence or international relations of Australia. In circumstances where the Minister did have that belief, there would be an obligation to advise the individual that the reasons were omitted on a notice given to the individual.

The exclusion of the right to procedural fairness set out in section 115E also achieves the legitimate objective of ensuring the security, defence or international relations of Australia. Section 115E would only permit the Minister to cancel a foreign work authorisation where the Minister reasonably believes that the individual’s performance of work or provision of training would prejudice the security, defence or international relations of Australia. Further, a review process, especially where there has been a change in circumstance, has the potential to create undue delay in cancelling an authorisation. The result of any delay could have the potential to cause immeasurable and irreparable damage to Australia’s security, defence and international relations.

Despite engaging the right to a fair hearing, the measures in place within the Bill are no more restrictive than required to achieve the legitimate objective. This is particularly important in the current changing strategic environment, where diligence or caution must be exercised to protect Defence secrets, capabilities, personnel and operations.  

On this basis, to the extent that the provisions in the Bill engage the right to a fair hearing under Article 14(1) of the ICCPR, this limitation is necessary, proportionate, and reasonable to achieve the legitimate objectives of the Bill.

 

Conclusion

 

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.