The amendment Part IXAA to the Defence Act 1903 – Safeguarding Australia’s Military Secrets (SAMS), requires some Australians and permanent residents to request foreign work authorisation (FWA). Individuals are required to request FWA if they intend to work for, or provide training to, a foreign military organisation or government body of a relevant foreign country.
There are a range of new requirements in this amendment that individuals must consider, to ensure compliance with the legislation. The requirements include but are not limited to:
- previous employment within Defence
- the type of work or job family the individual performed whilst working with Defence
- the period of time that has passed since the individual last worked with Defence
- if the country associated with the work or training is a relevant foreign country.
Foreign work restricted individuals
Individuals who are affected by the new legislation must assess their requirement to request a FWA.
This part of the legislation applies to the following individuals:
- Former members of the Australian Defence Force (ADF), 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 (APS) employees of the Department of Defence.
- Former members of the Australian Submarine Agency, including:
- Head of the Australian Submarine Agency
- APS employees of the Australian Submarine Agency.
Country list legislative instrument
A relevant foreign country is any country that is not excluded under the legislation. For example the United States of America is not a relevant foreign country because it is excluded under the legislation.
Individuals are not committing an offence if they are working for, or providing training to, a military organisation or government body in the countries listed in the country list legislative instrument.
Country list legislative instrument - Defence (Non-relevant foreign country) Determination 2024
Country list legislative instrument - Explanatory statement (PDF, 158.56 KB)
Job family legislative instrument
The job family legislative instrument contains specific details of roles in the Australian Defence Force and the Defence Australian Public Service. Each role is assigned a period of time that must expire after an individual has finished working for Defence, before the individual is no longer required to request a FWA. The period of time is designed to ensure that the value or benefit of an individual’s knowledge of sensitive Defence information has diminished sufficiently to become a low security risk.
Before requesting a FWA, individuals should refer to the instrument to identify their former Defence roles and confirm the associated restriction timeframes applicable to those roles.
The duration of the restricted timeframe for a role, reflects the level of risk associated with the currency of knowledge of that role. If the restriction timeframe for a role has passed, then this element of the legislation will not apply. For example, this element of the legislation would not apply to individuals if the restriction timeframe for a role is 1 year, and it has been 2 years since the individual ceased employment with Defence.
Individuals that have held more than 1 role will need to check all relevant roles and ensure compliance with the restriction timeframe for each role.
If a role cannot be found in the instrument, or it is unclear which roles or durations were performed, a FWA request should be submitted using the information that is available.
Job family legislative instrument - Explanatory statement (PDF, 186.68 KB)
Individuals providing training to a foreign military or government body
Australian citizens and permanent residents seeking to provide training to a foreign military or government body must assess their requirement to request a FWA.
This includes training in relation to:
- goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List
- military tactics, military techniques or military procedures.
Individuals meeting any of these criteria may require FWA.
Exceptions
The SAMS legislation provides the following exceptions to ensure it only applies to the relevant individuals. Individuals do not require authorisation:
- to perform work or training to excluded foreign countries
- if the length of time associated with their previous role as a former ADF or APS Defence employee, has passed in compliance with the job families instrument.
Additionally, authorisation is not required if:
- a current FWA is in place for the individual’s current employment
- 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 from the Commonwealth such as 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 is providing humanitarian aid or performing an official duty for the United Nations or the International Committee of the Red Cross.
The SAMS legislation is not intended to stop former Defence personnel seeking overseas employment. The Australian Government only cares about people who are unintentionally or deliberately harming Australia’s security.
Defence will assess each FWA request individually. The requests will be processed as soon as possible, once all the requested information is received.
Criminal offences
Criminal offences apply to individuals convicted of breaching the SAMS legislation. The maximum penalty is 20 years imprisonment.
Legal obligations under the SAMS legislation come into effect on 6 May 2024.
Individuals requiring authorisation for an existing role have until 7 August 2024, to submit their foreign work authorisation request.
Offences contained in the SAMS legislation are not retrospective. For more details see the SAMS legislation page.