Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Assistant Minister for Defence) Share this | Hansard source

The Deputy Prime Minister referred the Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2023 to the Parliamentary Joint Committee on Intelligence and Security for inquiry. I want to thank the PJCIS for its work on this bill, particularly given the fact that the committee has a number of inquiries ongoing at the moment. The committee ultimately recommended the bill be passed and made a number of other recommendations for which I will provide a response on behalf of the government.

In relation to recommendation 1—to expand the exemption to the work authorisation requirement from the International Committee of the Red Cross to include the International Red Cross and Red Crescent Movement—the government agrees in principle. To ensure consistency with other legislation, particularly with the Criminal Code, which has certain defences and exemptions for the Red Cross, Defence has been directed to work with other departments to develop a common approach to addressing the issue, rather than through this bill alone.

In relation to recommendation 2—that the government assess whether existing legislation and procedures sufficiently cover working or training for paramilitary organisations and militias—there is strong existing legislation to address these threats, and Defence will continue to work the Attorney-General's Department to monitor the adequacy of current legislation and procedures in relation to former defence personnel. In relation to recommendation 3—that the words 'that would prejudice the security, defence or international relations of Australia' be added in section 115B—the government considered this closely but does not agree with this recommendation. The provision in section 115B is appropriately targeted and narrow in its application.

Further, requiring a direct linkage between the transfer of military tactics, techniques and procedures related to information and the words 'prejudice the security, defence or international relations of Australia' would make it difficult to enforce the legislation. Military tactics, techniques and procedures information exists across a variety of classifications and formats, making it difficult to establish a traditional link between the classification or nature of information and the damage to national security. The result of this information being lost to foreign militaries may also take significant time to manifest, and it may not be until Australian defence forces are engaged in conflict that the impact of the knowledge transfer and its benefits to a foreign military are fully apparent.

The purpose of this bill is to enhance and extend the existing prohibitions on sharing military secrets. It seeks to ensure that those individuals with knowledge of sensitive defence information do not engage in work or training for foreign militaries, governments or entities that are damaging Australia's national security interests. I can assure the House that this will be reflected in the bill's implementing procedures, authorisation processes and enforcement.

In relation to recommendation 4—that the government consider amending the bill to give the minister the power to allow for bulk application approvals for companies who already have defence export control arrangements approved—this would not be appropriate as, while a company may have defence export control authorisations, individual owners or employees will have an array of complex personnel circumstances which require a case-by-case assessment. Only by assessing each individual on a case-by-case basis is it possible to understand the harm that could be done to Australia's national security as a result of an individual undertaking work or training for a foreign military, government or entity.

Defence will work to ensure the work authorisation process under this bill is as streamlined as possible and is responsive to critical business and personal priorities. The government understands the significant commercial and financial impact that delays in work authorisations could have and has directed Defence to ensure that there is sufficient capacity to process applications as expeditiously as possible while ensuring security arrangements and requirements are met.

Recommendation 5 is that the government assess our existing legislation, that procedures covering former national intelligence community officers and their work for foreign governments be strengthened and that we address the need for further legislation. Noting the critical role of these officers in protecting Australia's national security, Defence will work with relevant Commonwealth agencies to consider the committee's recommendations.

The Defence Trade Controls Amendment Bill was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade for an inquiry and report. The government again thanks the committee for its work in conducting the inquiry, which ultimately recommended that the bill be passed without delay. In response to the matters raised by the Senate inquiry in its final report, and as part of the co-design process with stakeholders, I can foreshadow that the government will be moving amendments to this bill.

I'll go through the government's response to those recommendations. In relation to recommendation 1—that the definition of 'fundamental research' be included in the bill itself and consideration be given to including additional exemptions in the bill where possible—the government agrees with this recommendation, and the amendments will be moved to address this. In relation to recommendation 2 on the definition of 'Australian persons' and its inconsistency with the United States' definition, the definition of 'Australian person' has been deliberately aligned with the definition of 'US person' in the International Traffic in Arms Regulations.

The government would also like to make it absolutely clear that, under Australian law, before any goods and services can be provided to an entity or individual on the Department of Foreign Affairs and Trade Consolidated List—a list of all persons and entities listed under Australian sanctions laws—a sanctions permit from the Australian Sanctions Office is required. The amendments in this bill will not override or change this requirement.

In relation to recommendation 3, Defence will continue to undertake consultation and engagement with impacted stakeholders, including industry and the higher education research sectors, through its established working groups. Defence is developing fact sheets for publication on the Defence website and dissemination to impacted sectors via peak bodies. The fact sheets will articulate the legislative changes, what they mean for regulated entities and individuals, next steps and where to obtain information.

In relation to recommendation 4, the government amendments to be moved are the product of co-design with industry. The government has directed Defence to continue the co-design process it has been undertaking through its established working groups for amendments to the subordinate regulations instruments and definitions and in the implementation of this regime.

In relation to recommendation 5, the government agrees it would be beneficial to expand the established working groups to include additional representation from relevant Australian defence small and medium enterprises. It has directed Defence to expand the membership of the working groups accordingly.

In relation to recommendation 6, the government agrees that a relevant parliamentary committee should review the implementation of the reforms within three years of commencement. This is in addition to the three-year independent review of the legislation the government has already committed to.

In relation to recommendation 7, the government agrees that Defence should be appropriately resourced to provide advice to external stakeholders, with this being appropriately publicised. Defence has already commenced work to upgrade the relevant ICT system to support new permit applications and expedited assessment.

Defence is expanding and increasing its education and outreach program, including by developing online learning and education materials that stakeholders can use to support decision-making in relation to permit requirements and other education and guidance materials. The department also has a 1800 number for the public to call to seek assistance or advice.

In relation to recommendation 8—that Defence Export Controls be adequately resourced to undertake its work as efficiently as possible—the government agrees that Defence should be appropriately resourced to support the implementation of this bill.

In relation to the Greens dissenting report, the government does not agree with that recommendation, and the government intends to pass the bill.

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