‘Unfair and unworkable’: Ai Group responds to Military Secrets Act legislation introduction

The amendment to the Defence Act 1903 comes following revelations that a number of former British, Australian, and US military pilots had been engaged to train Chinese military pilots, raising concerns about the security of sensitive information dating back to the mid-2010s, if not further.

In response, Deputy Prime Minister and Defence Minister Richard Marles said in 2022, “The information provided to me so far presents enough evidence to warrant the need for a detailed examination into the adequacy of current Defence policies and procedures addressing this matter.

“I want to make this point. For those who do come into possession of our nation’s secrets, either through service in the Australian Defence Force or indeed, service in any other part of the Commonwealth, there is an enduring obligation to maintain those secrets for as long as they are secrets, which persists well after their engagement with the Commonwealth, and to breach that obligation is a very serious crime,” Minister Marles said at the time.

In response, the government developed the Safeguarding Australia’s Military Secrets Act legislation designed to protect Australia’s military secrets and strengthen national security.

A key component of the legislation means that some Australian citizens and permanent residents may need to apply for a foreign work authorisation when working for, or on behalf of, a foreign military or government body, additionally, this means that a foreign work authorisation may also be required for individuals providing training to a foreign military organisation or government body.

For background, the Safeguarding Australia’s Military Secrets Act applies to former members of the Australian Defence Force, Defence Australian Public Servants, and Australian Submarine Agency who will work for a foreign military or foreign government body.

The legislation also means all Australian citizens or permanent residents providing training to a foreign military or government body that is related to:

VIEW ALL

• Part 1 of the Defence and Strategic Goods List
• Military tactics, techniques and procedures

However, while the Safeguarding Australia’s Military Secrets Act has been developed in response to a major and glaring gap, Ai Group has launched a scathing attack, raising major concerns about the impacts of the legislation on Australia’s defence industry workforce and veterans seeking to transition and leverage their skills and experience.

Innes Willox, chief executive of the Ai Group said, “A new law to prevent the sharing of sensitive military information that came into force this week is causing confusion among former defence personnel who face a maximum 20 years’ imprisonment for breaching the act.

Going further, Willox said, “the act is, in practice, illogical, unfair and unworkable. The impact of this unguided missile of an act on the defence industry, former Defence personnel (including veterans), and to Australia’s trade position and international reputation is deeply concerning”.

Willox explained that the offences prescribed under the act do not need to have any connection to “military secrets” and that given the broad scope of the legislation, “foreign government body” could be easily abused or misused.

“For example – if an administrative officer works in the Department of Defence, that person will need a foreign work authorisation for at least a year after they depart Defence if they want to work for one of the thousands of companies located in Australia with some foreign government influence or ownership. This is the case, even if the person did not have access to ‘military secrets’, and also if the company is a civilian entity with no connection to national security,” Willox explained.

In a case of a two-tiered enforcement process, he also cited that the SAMS Act does not apply to other high-level clearance holders, including intelligence agencies, other government departments, ministerial staff, or defence contractors and consultants.

“The SAMS Act will make it manifestly harder for thousands of Defence personnel and veterans to move into new roles after they leave their employment in Defence Department or the ADF. Ai Group estimates the Australian workforce potentially captured by the SAMS Act includes 230,000 current and former ADF personnel and 70,000 civilians formerly employed in Defence administration. This is equivalent to around one in 40 Australian workers,” he said.

Willox urged the government to engage with industry experts to better target the legislation and establish a list of exemptions so as to better deliver the desired outcomes and intent of the act.

“The SAMS Act comes from a place of good intentions. But alarming outcomes await Australia’s defence capability unless there is a proper reconsideration of the legislation’s remit and scope. Our national security demands it.”