Safeguarding Australia's Military Secrets

On 6 May 2024, the Australian government passed the Defence Amendment Safeguarding Australia’s Military Secrets Act (SAMS), which will be enforced from 7 August 2024.

SAMS primary purpose is to ensure that Australia’s military secrets are not disclosed to foreign militaries. It seeks to achieve this by requiring certain former defence staff to have a Foreign Work Authorisation (FWA) before commencing work for or on behalf of a foreign military or foreign government body; and by requiring all other Australian citizens and permanent residents to have a FWA before providing certain military-related training to a foreign military or foreign government body (including foreign public universities).

When is a Foreign Work Authorisation required?

The new FWA requirement applies to:

• Former members of the Australian Defence Force (including reservists), Australian Defence Public Servants and Australian Submarine Agency (Foreign Work Restricted Individuals) who intend to work for a foreign military or foreign government body.
• Other Australian citizens or permanent residents who intend to provide training to a foreign military or government body about
  • items in Part 1 of the Defence and Strategic Goods List, or
  • military tactics, techniques and procedures (TTPs).

NOTE: Where an FWA is required, the individual has a personal obligation to obtain it, even if the work or training is provided through a company or organisation (for example, as an employee of UoA) or as a contractor and not an employee of the foreign military organisation or government body.

Are there any exceptions? YES

The SAMS legislation includes the following exceptions to ensure it only applies to the relevant individuals. No FWA is required for:

• Foreign Work Restricted Individuals, that only intend to work for militaries or the governments of “not relevant foreign countries” – Canada, New Zealand, the UK, and the US; and
• Other Australian citizens or permanent residents (i.e. not Foreign Work Restricted Individuals) that intend to provide training to militaries and governments of “not relevant foreign countries” – Canada, New Zealand, the UK, and the US.

NOTE: If the length of time associated with their previous role as a former ADF or APS Defence employee has passed in accordance with the job families instrument  that individual is no longer classified as a Foreign Work Restricted Individual but will fall into the category of an ‘other Australian citizen or permanent resident’.

Additionally, authorisation is not required if:

• A current FWA is already in place authorising the individual’s proposed work or training.
• 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.

Where do I apply?

You can submit an FWA Support Request or FWA Request Form on the Australian Department of Defence website. As these forms include personal information, please ensure you are only submitting them via the official Department of Defence website.

If you are unsure whether your education and research activities require an FWA, the University of Adelaide recommends that you apply for one before 7 August 2024.

What period does the authorisation cover?

The maximum duration for a Foreign Work Authorisation is three years. Individuals needing an extended authorisation must request a new FWA before the expiration of their current authorisation.

What happens if I do not have the required Foreign Work Authorisation?

From 7 August 2024, individuals who do not have the required FWA may be liable for criminal prosecution, including up to 20 years imprisonment.

Can the University apply on my behalf?

No, the University of Adelaide cannot apply for an FWA on an individual’s behalf.