Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2024, Defence Trade Controls Amendment Bill 2024

The majority voted in favour of a motion to read the bills a third time. In other words, they voted in favour of passing the two bills in the Senate. Since they have already passed in the House of Representatives, they will now become law.

What do the bills do?

According to the Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2024's bills digest (which is a document prepared by the parliamentary library):

• The Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 creates a scheme for issuing foreign work authorisations to former defence staff members and other individuals who wish to work for, or provide specified training to, foreign military organisations or government bodies. Working or training without the relevant foreign work authorisation is a criminal offence with a maximum penalty of 20 years imprisonment.

• Former defence staff members are defined as foreign work restricted individuals who must not perform work for, or on behalf of, foreign military organisations or government bodies unless the individual holds a foreign work authorisation for the work or another exception applies.

• Australian citizens and permanent residents are restricted from providing training in certain areas for foreign military organisations and government bodies unless the individual holds a foreign work authorisation for that training or another exception applies.

• Former Defence contractors, consultants and outsourced service providers are not classed as former defence staff and therefore not foreign work restricted individuals. If they engage in work or training for foreign government bodies or military organisations their obligation to apply for a foreign work authorisation and criminal exposure will be different to that of former defence staff members even in cases where they have performed the same work for Defence.

• The most serious criminal offences around espionage and secrecy of information, which currently apply to defence staff, are in the Criminal Code. Most of the Criminal Code offences require as an element of the offence that the conduct is harmful to Australia’s security or international relations. The proposed offences do not include this element.

• It is a live question whether placing the offence provisions in the Criminal Code would result in a more solid and coherent criminal liability scheme.

According to the bills digest for the Defence Trade Controls Amendment Bill 2024:

• The Bill removes the need for permits to trade in goods, technology and services within the scope of the Defence Strategic Goods List (DSGL) within Australia and with the US and UK.

• The Bill is in part designed to provide reciprocal frameworks for information and technology security to underpin the AUKUS partnership. The US requirements for reciprocity are expressed in the National Defense Authorisation Act for Fiscal Year 2024 (US).

• Three new offences are proposed in the Bill and will expand the criminal liability currently imposed by the Defence Trade Controls Act (DTC Act):

• Supplying DSGL technology in Australia to a foreign person

• Supplying DSGL goods or DSGL technology outside Australia or to a foreign person in certain circumstances and

• Providing DSGL services without a permit or in contraventions of permit conditions.

• Each of the offences has detailed exceptions to permit free trade in goods, technology and services within the AUKUS partnership.

• The offences in the Bill interact with the concept of a foreign work authorisation in the Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 and there appears to be significant overlap with respect to DSGL services.

• Universities and industry generally support the loosening of trade controls with the US and UK.

• Some defence industry participants and universities expressed concern during the brief consultation period on the Exposure Draft of the Bill that the proposed provisions might stifle trade, education, research and innovation with countries other than the UK and US.