Safeguarding Australia’s Military Secrets Act

The Safeguarding Australia’s Military Secrets Act 2024 (SAMS) Act is designed to ensure that Australia's national secrets stay in Australian hands.

On 8 April 2024, the SAMS Act received Royal Assent from the Governor General and will commence on Monday 6 May 2024.

The SAMS Act amends the Defence Act 1903 through the insertion of a new Part IXAA.

The SAMS Act requires certain former Australian Defence Force (ADF) and Defence Australian Pubic Servants (APS) members as well as Australian citizens and permanent residents providing certain types of training, to apply Foreign Work Authorisation to perform work for, or on behalf of, a military organisation of government body of a relevant foreign country. This includes undertaking such work or training via another entity, such as a company or organisation, or as a contractor for a relevant foreign military or government body.

The Foreign Work Authorisation application forms will soon be available.

The Defence Trade Controls Amendment (DTC) Act 2024 has also received Royal Assent. It is closely aligned to the SAMS Act.

The SAMS Act enhances the robust legislation Australia already has in place by creating a new framework in response to the detailed examination instigated by the Deputy Prime Minister into policies and procedures to prevent former Defence staff providing military training to foreign powers.

Individuals affected by the Act

The SAMS Act required certain former ADF and Defence APS members, as well as Australian citizens and permanent residents providing certain types of training, to apply Foreign Work Authorisation to perform work for, or on behalf of, a military organisation or government body of a relevant foreign country. This includes undertaking such work or training via another entity, such as a company or organisation, or a contractor for a relevant foreign military or government body.

The SAMS Act applies to the following individuals:

  • Former members of the Australian Defence Force including:
    • the Chief of the Defence Force or the Vice Chief of the Defence Force
    • the Chief of Navy, the Chief of Army or the Chief of Air Force
    • a member of the Permanent Forces
    • a member of the Reserves who has rendered continuous full time service.
  • Former members of the Department of Defence including:
    • The Secretary of the Department of Defence
    • Australian Public Service employees of the Department of Defence.
  • Former members of the Australian Submarine Agency including the:
    • Head of the Australian Submarine Agency
    • Australian Public Service employees of the Australian Submarine Agency.
  • Australian citizens and permanent residents seeking to provide training to foreign militaries in relation to:

Exceptions

The Act provides certain exceptions to ensure it only applies to relevant individuals.

Two legislative instruments are available to the Minister for Defence:

  • The Minister for Defence may exclude a foreign country from being relevant to the offence. This means that individuals would not have to seek authority to perform work or training to that country’s government or military. A list of approved foreign countries will be promulgated on the Defence website.
  • The Minister for Defence may determine a class of Defence staff members to which this offence would not apply. The class would be determined by the type of work the staff member performed and the period of time that has elapsed since they performed that work. A list containing details of the types of work and the exclusion period will be promulgated on the Defence website.

The offence also does not apply if:

  • The work is performed as part of the individual’s employment by the Commonwealth.
  • The work performed by an individual is authorised by a written agreement to which the Commonwealth is a party i.e. a Defence contract.
  • The individual is authorised by the Attorney-General to perform work with an armed force of a foreign country under s119.8 of the Criminal Code Act 1995.
  • The work solely involves providing humanitarian aid or performing an official duty for the United Nations or the International Committee of the Red Cross.

Foreign Work Authorisation

Individuals affected by the SAMS Act will need to apply for a Foreign Work Authorisation. An application form will soon be available on the Defence website.

Individuals will be able to apply for a Foreign Work Authorisation from the commencement of the SAMS Act on 6 May 2024.

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

Advice to assist individuals prepare and collate information require to complete the Foreign Work Authorisation application form will soon be made available.