The amendment to Part IXAA to the Defence Act 1903 – Safeguarding Australia’s Military Secrets (SAMS), requires some Australians and permanent residents to request a foreign work authorisation (FWA) prior to undertaking work for, or providing training to, a foreign military organisation, or government body of a relevant foreign country.
There are a range of requirements in this amendment that individuals must consider, to ensure compliance with the legislation, including but not limited to:
- previous employment in Defence
- the type of work or job family the individual performed whilst working in Defence
- the period of time that has passed since the individual last worked in Defence
- if any training relates to military style tactics, techniques and procedures, goods, software or technology within scope of Part 1 of the Defence and Strategic Goods List
- if the country associated with the work or training is a relevant foreign country.
Who SAMS applies to
The SAMS legislation applies to:
- Foreign work restricted individuals – former defence staff members (Australian Defence Force, Defence and Australian Submarine Agency public servants) still within scope of the Job Family legislative instrument
- Other individuals – all Australian citizens and permanent residents involved in certain training.
Foreign work restricted individuals
The following individuals may be considered to be a foreign work restricted individual under the SAMS legislation.
- 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
- Australian Public Service employees of the Australian Submarine Agency.
Other individuals
Australian citizens and permanent residents, including former Defence employees outside of the Job Family instrument, may be captured as an 'other Individual' under the SAMS legislation if seeking to provide training in relation to:
- goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List, and/or
- military tactics, military techniques or military procedures.
Individuals meeting any of these criteria may require a FWA.
Exclusions and exemptions
The SAMS legislation provides a range of exclusions and exceptions to limit the scope to the relevant individuals. These are reflected in the 2 accompanying legislative instruments, and a list of exceptions provided below.
- Country List Legislative Instrument - provides the list of excluded countries not requiring a FWA, referred to as ‘non-relevant countries’.
- Job Family Legislative Instrument - provides details of the length of time that former Defence members (ADF or APS Defence and ASA personnel), are considered to be a ‘foreign work restricted individual’.
- Exceptions – outlines criteria an individual would not require a FWA.
Countries excluded
Foreign work restricted and other individuals do not require authorisation when performing work or providing training solely for a military organisation or government body of an authorised foreign country, referred to as a non-relevant country.
A non-relevant country is any country that is excluded under the legislation.
For example the United States of America is non-relevant foreign country as it is excluded under the legislation. Individuals undertaking work or training solely for the United States military or a government body do not require authorisation.
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 ADF or APS Defence and ASA personnel. 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 a foreign work restricted individual. 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 role(s) 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 one year, and it has been 2 years since the individual ceased employment with Defence.
Individuals that have held multiple roles will need to check all relevant roles and ensure compliance with the restriction timeframe for each role. Note, the applicable role may be the one with the longest expiry period or another role within the last 10 years.
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)
Exceptions
The SAMS legislation provides a range of exceptions in addition to those provided in the Country and Job Family legislative instruments to further limit the scope to the relevant individuals.
Individuals do not require authorisation 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 is only concerned with 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.
Offences contained in the SAMS legislation are not retrospective. For more details see the SAMS legislation page.