Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I table revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

DEFENCE AMENDMENT (SAFEGUARDING AUSTRALIA'S MILITARY SECRETS) BILL 2024

In late 2022, the Deputy Prime Minister and Minister for Defence directed Defence to examine the adequacy of the policies and procedures for preventing former Defence personnel from transferring sensitive Defence information to foreign militaries with interests inimical to Australia's own.

The examination recommended strengthening Australia's already robust legislation. This Bill is in response to that recommendation.

This Bill also reflects Australia's commitment to enhance our security standards to safeguard sensitive technology and information, particularly as we embark on work through our AUKUS partnership with the United States and the United Kingdom. Elements of this Bill are modelled on similar provisions that exist in United States domestic law.

While this Bill does not represent the entirety of our legislative ambition in this respect, it is an important step towards establishing more seamless technological transfers with our AUKUS partners.

Australia already has a range of robust legislative measures and policies in place to deter and respond to the risk of foreign collection of our Defence secrets.

The Criminal Code, for instance, contains general secrecy offences that apply to current and former Commonwealth officers, including ADF personnel, who harm the national interest by disclosing information entrusted with them.

The Code specifically prohibits the provision of military-style training involving a foreign government principal.

This Bill extends Australia's already robust legislation and policies further.

It adopts a proactive approach by establishing an authorisation framework to regulate the performance of work and specified training to a foreign military, foreign government or foreign government entity.

The Bill requires certain former Defence staff members to obtain authorisation if they intend to perform work for a particular foreign military, foreign government or foreign government entity.

A former Defence staff member includes former members of the Australian Defence Force, former Australian Public Servants of the Department of Defence and the Australian Submarine Agency, and former members of the Reserves who rendered continuous full-time service.

The Bill also requires any Australian citizen or permanent resident to obtain authorisation if they intend to provide training in relation to certain export-controlled items or military tactics, techniques or procedures, to a foreign military, foreign government or foreign government entity.

The penalty for performing work for or specified training with a relevant foreign country without authorisation is 20 years' imprisonment.

An individual will not commit an offence if they have been granted an authorisation for the work or training.

There are also other exceptions to the offences created by this Bill.

They include if an individual's work or training is in relation to providing aid of a humanitarian nature, or if the individual performs an official duty for the United Nations, an agency of the United Nations or for the International Committee of the Red Cross.

An exemption also covers work or training in the course of an individual's employment or engagement by the Commonwealth.

This Bill will enable the Minister for Defence to determine, by legislative instrument, which countries are not to be regarded as relevant foreign countries under this framework. This means that if an individual intends to work or provide training to a foreign country listed on the instrument, the individual would not be required to apply for an authorisation.

This Bill will also enable the Minister for Defence to determine, by legislative instrument, a class of former Defence staff members who are not required to apply for an authorisation.

The class may be determined by the type of work previously performed by the Defence staff member and the period of time that has elapsed since the performance of that work.

Following the introduction of this Bill last year, the Deputy Prime Minister referred the Bill to the Parliamentary Joint Committee on Intelligence and Security. On the 14 March 2024, the Committee published its report and made five recommendations. The Government thanks the Committee for its timely consideration of the Bill.

The Bill also amends the Criminal Code to ensure consistency between the operation of this Bill and section 83.3 of the Criminal Code Act 1995 which establishes an offence for providing military-style training to a foreign government principal.

These amendments clarify that if a person is exempt from the new offences in the Safeguarding Australia's Military Secrets Bill, that the person will also be exempt from section 83.3 of the Criminal Code for the same conduct.

The Safeguarding Australia's Military Secrets Bill is not intended to prevent Australians from working overseas or with all foreign governments or militaries.

Rather, the legislative intent is to prevent individuals with knowledge of sensitive Defence information from training or working for certain foreign militaries or governments where that activity would put Australia's national security at risk.

This Bill will ensure individuals in possession of sensitive Defence information who want to undertake these activities first seek authorisation to do so. This is to ensure their activities are not damaging Australia's national interests.

This Bill will enable the Minister for Defence, or their delegate, to consider each request for authorisation on a case-by-case basis.

The Bill provides individuals the ability to seek internal or external merits review of certain decisions made under this authorisation framework.

Authorisations may be granted subject to conditions and may be cancelled, suspended or varied in certain circumstances.

An authorisation will be refused if the Minister, or their delegate, reasonably believes that the performance of the work or training by the individual would prejudice the security, defence or international relations of Australia.

The measures in this Bill are serious but necessary. The importance of protecting our nation's secrets and sensitive information cannot be overstated.

The protection of our nation's secrets and sensitive information through this Bill is central to preserving Australia's national security and to keeping Australians safe.

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DEFENCE TRADE CONTROLS AMENDMENT BILL 2024

In the complex and challenging strategic environment we face today, preventing our defence technologies, capabilities and information from falling into the hands of our adversaries is paramount.

To keep pace with these challenges, it is essential that Australia has a robust protective security framework.

Australia's export control system is a key element of our protective security framework.

It is designed to prevent military goods and technologies being transferred to foreign individuals or entities in ways that prejudice Australia's interests.

It will also streamline the transfer of defence goods and technology among Australia, the United Kingdom and the United States to enhance advanced scientific, technological and industrial cooperation.

This is critical legislation.

This Bill strengthens Australia's existing export control system by enhancing protections around the supply of controlled goods and technology listed on the Defence and Strategic Goods List (DSGL) within and outside of Australia.

It bolsters Australia's national security, better protects our technology advantage, and safeguards Australia's technology and information, as well as that of our partners.

And it will increase the innovation ecosystem with like-minded partners and support our collective ability to pull innovation through to capability, at scale and at speed.

The reforms are expected to provide an estimated net benefit to the economy of $614 million over 10 years.

The reduction in regulation through the national exemption for export permits to the US and the UK would benefit $5 billion of the almost $9 billion in annual defence exports.

These exemptions would also mean that almost a third of the 3,000 export permit applications currently assessed annually are no longer required.

Australia is not making these reforms alone.

The United Kingdom and the United States are also reviewing their export control frameworks to support the creation of a licence-free environment between AUKUS partners.

On 15 December 2023, the United States Congress passed groundbreaking legislation to give Australia and the United Kingdom a full national exemption from US export control regulations.

This is a generational reform that will be fundamental to enabling AUKUS and creating a licence-free environment.

Australia's access to this national exemption will require Australia to have implemented an export control system that is comparable to the US and have implemented a reciprocal national exemption from its export controls for the US.

This Bill, coupled with the Defence Amendment (Safeguarding Australia's Military Secrets), achieves an export control framework that is fit-for-purpose and ensures we are able to access to the US national exemption.

The Bill achieves this by amending the Defence Trade Controls Act 2012 in four ways.

First, it regulates the supply of military and dual-use DSGL technology, as defined in the DSGL, to non-exempt foreign persons within Australia.

Second, it regulates the supply of goods and technology listed in Part 1 of the DSGL and the 'Sensitive' and 'Very Sensitive' Lists in Part 2 of the DSGL, that were previously exported or supplied from Australia, from a foreign country to another country, or within the same foreign country.

Third, it regulates the provision of DSGL services related to Part 1 of the DSGL to foreign persons or entities outside of Australia.

Fourth, it creates a licence-free environment for the supply of DSGL goods and technology and the provision of DSGL services from Australia to the United Kingdom and the United States.

To give effect to these changes, the Bill creates new offences with appropriate penalties and exemptions.

The Bill includes a number of exceptions to the three new offences to streamline trade with international partners, beyond the UK and the US.

The exceptions seek to reduce the compliance burden faced by the industry, higher education and research sectors whilst ensuring the controls adequately address Australia's national security requirements.

Following the introduction of this Bill in the House last year, the Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee.

On 15 March 2024, the Committee published its final report and made nine recommendations, ultimately recommending that the Senate pass the bill without delay.

The Government thanks the Committee for its consideration of the Bill, as well as those who made submissions and gave evidence to assist the Committee in its work.

As a result of this inquiry and the co-design process undertaken with stakeholders a number of amendments were made to the Bill in the House.

These amendments include enshrining certain exemptions to the offences created by the Bill into the primary legislation rather than regulations, giving those that may be impacted by the legislative framework greater certainty.

The Bill is appropriately targeted to strike a balance between protecting our national security while supporting economic prosperity through international exports.

Australia's export control regime is a permissive system designed to permit the responsible transfer of controlled goods and technology—these reforms do not change this underlying principle.

To assist the efficient administration of this scheme, the Bill allows for the delegation of the authority to, in limited circumstances, decide and issue permits to Australian Public Service Executive Level 1 (EL1) officers.

As the Deputy Prime Minister outlined to the Senate Scrutiny of Bills Committee, this will be limited to the assessment and approval of low risk and low complexity applications. Defence will ensure that EL1 officers exercising this delegation will have the appropriate training and experience to make such a decision.

These reforms are not intended to prevent foreign nationals from working with Australia on DSGL goods or technologies.

They are not intended to prevent foreign students or academics from engaging with Australian academic institutions.

Rather, the intent of the Bill is to prevent sensitive defence goods and technologies from being passed to foreign individuals or governments in a manner that may harm Australia's interests.

The exceptions to the offences contained in the Bill intend to narrow the scope of the Bill to those activities and technologies that could prejudice the security, defence and international relations of Australia.

This ensures Australia cultivates research and innovation and streamlines trade with international partners beyond AUKUS.

This Bill and the licence-free environment will ensure Australia, the United Kingdom and the United States can collaborate, innovate and trade at the speed and scale required to meet the challenging strategic circumstances.

These reforms represent a significant opportunity to unlock the benefits of AUKUS, helping establish a seamless industrial base between Australia, the United States and the United Kingdom.

This is central to preserving Australia's national security and to keeping Australians safe.

Debate adjourned.