Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I move the amendment on sheet 2485:

(1) Schedule 2, page 29 (after line 26), at the end of the Schedule, add:

Defence Act 1903

6 Subsection 4(1)

Insert:

IGADF official (short for Inspector-General Australian Defence Force official) means:

(a) the Inspector-General ADF; or

(b) a person covered by subsection 110O(1).

7 At the end of Part VII

Add:

85 Identification of current or former members of the ADF Special Forces

Offence

(1) A person commits an offence:

(a) if:

(i) the person identifies a person as being a current or former member of the ADF Special Forces; and

(ii) the identification is not of the Special Operations Commander or such other persons as the Chief of the Defence Force determines; or

(b) if:

(i) the person makes public any information from which the identity of a current or former member of the ADF Special Forces could reasonably be inferred, or any information that could reasonably lead to the identity of such a person being established; and

(ii) the Minister or the Chief of the Defence Force has not consented in writing to the information being made public; and

(iii) the information has not been made public by means of broadcasting or reporting proceedings of the Parliament as authorised by the Parliament.

Penalty: Imprisonment for 10 years.

Exceptions

(2) A person does not commit an offence against paragraph (1)(a) if the person identifies the current or former member of the ADF Special Forces to an IGADF official, for the purpose of the IGADF official exercising a power, or performing a function or duty, as an IGADF official.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

(3) A person does not commit an offence against paragraph (1)(a) if:

(a) the person is an IGADF official; and

(b) the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGADF official.

(4) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against paragraph (1)(a) of this section, a defendant does not bear an evidential burden in relation to the matter in subsection (3) of this section.

Extended geographical jurisdiction

(5) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) of this section.

Institution of prosecution

(6) A prosecution for an offence against subsection (1) of this section may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General's direction.

(7) However:

(a) a person charged with an offence against subsection (1) of this section may be arrested, or a warrant for the person's arrest may be issued and executed; and

(b) such a person may be remanded in custody or on bail;

even if the consent of the Attorney-General or a person acting under the Attorney-General's direction has not been obtained, but no further proceedings are to be taken until that consent has been obtained.

(8) Nothing in subsection (6) or (7) prevents the discharging of the accused if proceedings are not continued within a reasonable time.

Definitions

(9)In this section:

member of the ADF Special Forces means a person who is serving in a unit of the Australian Defence Force that conducts special operations.

I brought this amendment forward before. This time the government and coalition will find the courage with both hands and do the right thing by our veterans. This amendment is about protecting our Special Air Service veterans. When they sign up, they are promised by Defence that their identities will be protected. Despite this promise, this does not happen. They have been lied to for years by the very top echelon—their commanders—who should be protecting them. I just want to make it quite clear that this amendment is actually not complicated; it is just a commonsense measure to keep them safe, especially our special forces veterans' families. It is a simple amendment that allows diggers to have their identity protected, like they have been told would happen for their entire careers, for many, many years. It is a big part of the reason why these special forces personnel sign up. When you have family, it is ingrained in you that you will put the military first before your family. That is a big commitment. It is a big sacrifice when you are prepared to put your country—and have your life taken for your country—before your family. I cannot stress that enough in here this afternoon.

This amendment will make it a criminal offence to release the identity of those personnel that we ask to conduct the most dangerous operations that nobody else will. Nobody else will line up and do them—nobody. They are not lining up today to do them, and I will come back to that. This amendment seeks to give those personnel the same protection as an officer of ASIS. We're not asking for anything special; we are just asking for the same treatment. Last year a special forces soldier had his name splashed across the newspapers. His identity was revealed and, when his name was put out there, it put his life at risk, not to mention what his children have gone through. Thanks for serving your country.

Let's be honest, we also have ISIS cells running around Australia. If you think splashing the names of veterans across the newspapers does not put them and their families in danger you are delusional—beyond delusional. You have now put their lives in danger because you did not protect them. When the ISIS enemy come after us, they do not give a stuff. They're happy to take our kids out. Have you seen what has happened in Russia? They have no humanity, ISIS. They do not care. If you do not see the way that they played their role in the war in the Middle East then have another look, go back through. Have a look at what history served us up. They just do not care.

Special forces personnel are sometimes required to engage in secret operations in other countries, but of course we do not ask any questions about that. We would not dare because we are too bloody scared to ask. We don't want to know the dirty crap they are doing for this country and that is why we don't ask, because we don't want to know, because they go beyond what is required of them. We do not want to know because we ask them to do the things that we would never ask ourselves or anybody else to do, and that is the truth in the chamber today. That is the truth about it.

This amendment will put an end to veterans having their identities released. Let's talk about the elephant in the room. In one corner we're talking about national security and in the other corner people are not enlisting in our military. They are not enlisting. Here is a reality check: they are not enlisting. I'll tell you what, they sure as hell are not lining up to be in our special forces anymore, are they? Once upon a time, the military was competitive. You'd have hundreds of them lining up. Well, you've done your dash with them because you haven't protected them, and you haven't looked after them. They're not dying to go to Western Australia as they used to.

If you want to talk about national security in this country, then you better have a look at where the white elephant in the room is. You better have a look at the way you're treating them, because I can tell you that I have put it out there and will continue to say: 'Don't join the special forces because the government won't look after you. You are not protected; you never will be. You're a digger; you're nothing special, because that's what they're treating you like in here. There is nothing special for you or your families for your commitment.' If it isn't senior commanders, it is politicians who are prepared to chuck them under the bus. They're the same people we ask to make the ultimate sacrifice and do all the dirty crap that we don't want to do or think about. We don't want to ask questions because we don't want to know.

I'm simply asking you to give them the same treatment as ASIS. Why is ASIS so damn special compared to our special forces? Why do they get special treatment? Why? Who's putting their lives on the line here? It's not ASIS. This is all the amendment does, okay? It keeps their identities hidden for the safety of them and their families. That's all I'm asking, and that's all they are asking—to have the same treatment as ASIS.

Guys, you really have no choice here. You either give a stuff about our national security or you don't. If you want people to join our special forces, then you better start treating them a lot better than you have been treating them, because they've had enough of the rubbish. You have a choice here today. I want to make it very clear in Western Australia that the Greens will not support you. They are not behind you. They don't want to support you, okay? Obviously, they cannot see the commitment that you make and where it puts your kids. Obviously, they don't care about your kids either and what happens to them That's where we are at. The major parties have a choice this afternoon. You have a choice. They will not forgive you in the next federal election. It is 14 months away. Why don't you start looking after our special forces the same way they look after our Australians? Start looking after them properly. I am asking you to put this amendment through this afternoon.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

While I appreciate very much Senator Lambie's interest in and commitment to the set of issues that surround the central proposition that she has made, we are not in a position to support the amendments.

It is the case that the protected identity status is very important. It is not the case, Senator Lambie, that people who perform functions for ASIS are not in danger. In the passion of your comments, I don't think that's what you meant to convey. These issues are of importance. However, this bill is for the purposes of establishing a work authorisation permit system for former defence staff members seeking employment for or on behalf of a foreign government. It is not the right place for an amendment which goes to the protection of the identities of defence personnel.

The Defence policy known as the Defence Protected Identity status is afforded on an operational requirement basis to certain individuals who hold specific roles or work on specific operations in the ADF. As you know, this is to protect current sensitive defence capabilities and effects, our operations, the partners we operate with as well as to safeguard the security of individuals and their families. I can advise the chamber and Senator Lambie that, irrespective of whether a person holds a protected identity status or not, it is Defence policy and practice to only release official content or make public comment that will not compromise an individual's privacy, in accordance with the Privacy Act 1988. We are, of course, as Senator Lambie knows, happy to continue to engage on this set of questions with her in her office.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

Likewise, in the coalition we absolutely recognise the passion and commitment that Senator Lambie has towards the issues that she has outlined here in the chamber this evening and in the amendment that she has circulated in the Committee of the Whole. The coalition will be opposing this amendment. We fundamentally do support the prompt passage of this bill. It's an important piece of legislation alongside the Defence Trade Controls Amendment Bill 2024. This legislation will keep Australia in sync and at pace with AUKUS partners and will ensure the development of security and export frameworks that support the implementation of AUKUS. We don't want to do anything in this chamber that will delay the passage of those bills. We also don't think that this bill is necessarily the best vehicle to address the issues that Senator Lambie has been raising, but certainly we are not ruling out progressing discussions with Senator Lambie on an issue that we know she is very passionate about. The question is whether this bill is the right place to do it. We submit that it is not and, like I said, we will be opposing this amendment this evening.

Question negatived.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—Can you just make sure that the JLN is recorded in support.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I have a few quick questions to the minister. Minister, in the course of the inquiry, Defence said in relation to the Defence Trade Controls Amendment Bill 2024 that their analysis was that, as a result of this bill, there would only be dozens of additional permits required per year. Does the government seriously still say that? If it is not dozens, how many will be required?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It is the government 's view that the passage of this legislation will result in fewer applications being made, because the requirements will be simpler and more straightforward.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

My question was about Mr Nockels's evidence. Of course, Mr Nockels is apparently the senior defence expert inside the department who deals with this legislation and will be dealing with the permits. His evidence to the Senate inquiry was that, as a result of this legislation, only dozens of additional permits would be required per year. Given the higher education sector and industry are saying it's probably tens of thousands, does the government back in Mr Nockels, or is he just making it up?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I wouldn't go with the pejorative. Mr Nockels would have been giving evidence on the basis of his expertise. In 2022 permit applications for exports to the United Kingdom and the United States accounted for 900 of the 3,000 applications assessed. The national exemptions for the United Kingdom and the United States will mean that almost a third of these export permit applications are no longer required. Broadly, the reforms in the bill are expected to provide an estimated net benefit to the Australian economy of over $600 million over the 10-year period that's been assessed.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

That $600 million figure is interesting but totally unrelated to my question. My question was not how many existing permits will not be required within the bubble of the United States, the UK and Australia. My question is: how many permits will be required as a result of this legislation for all of the work that's currently undertaken in universities and industry which will be impacted by the additional controls to make us compliant with US weapons export control legislation? Mr Nockels said 'dozens'. We asked on notice for any evidence that backed up Mr Nockels's statement of 'dozens', and we got a refusal to answer on the basis of national security. So again I ask you: do you support Mr Nockels's evidence that it's dozens, or is it more likely what higher education and industry have said, which is potentially tens of thousands of permits? How many?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I just did take you through the numbers. Looking backwards, the assessment is that permit applications for export to the United Kingdom and the United States accounted for 900 of the 3,000 applications assessed. It is, I think, not possible to predict how many applications are made. It is possible to say that the requirements for applications will be simpler and more straightforward and that, if any assessment of what has previously occurred suggests that the national exemptions for the United Kingdom and the United States will mean that almost a third of those export permit applications will no longer be required, that's a reasonable basis for making some assessment about what the future requirement for applications will be.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

The problem with your answer is that it doesn't address the question. What the higher education sector and industry have said is, 'Sure, we may not need a permit for the modest amount of work we do with the United States and the UK, but we'll absolutely need a permit every time we collaborate with India, every time we collaborate with Taiwan, every time we collaborate with Indonesia, every time we collaborate with Belgium and every time we collaborate with Germany.' I could go on—it's the rest of the world. Every time they get a research scientist who's not from within the bubble, every time they want to collaborate and share research on anything that might touch upon national security with any other part of the world, they're going to need a permit under the legislation. The higher education sector and industry have said that that's possibly tens of thousands of permits a year. Mr Nockels, in evidence that no-one could believe, said that it was dozens. Surely the government has a better answer than what it gave on notice, which was:

The Impact Analysis acknowledges that some of the data obtained to inform the analysis cannot be released publicly due to the security classification of the information and the permitted legal reasons for using the data.

How many, Minister?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

In relation to the jurisdictions where the exemption will not be in place, there is already a system in place in relation to those jurisdictions. This will provide the regime that is set out in the bill, and the response of the university sector has been overwhelmingly positive. Vicki Thomson, the Chief Executive of the Group of Eight, said:

These reforms are not a "nice to have", they are a must-have.

She said:

The proposed changes to the Defence Trade Controls Act will ensure Australia achieves the required comparability with that of the US. They will be a game changer for our university research sector.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

How on earth could this legislation be compliant with the ITAR requirements from the United States, which are relatively strict on protecting defence secrets and defence technology, if Mr Nockels is to be believed and there will only be dozens of permits required in circumstances where Australia has tens and tens of thousands of collaborations with countries outside of the bubble, which on the face of the bill would require a permit? You can't be compliant with the US ITAR requirements if you're setting up a regime which is only requiring dozens of permits. You can't have it both ways.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Essentially, this arrangement sets up a licence-free arrangement in terms of the AUKUS partners. That's how it complies. There will be, of course, and there is in this framework in relation to the rest of the world, but it does mean that there is comparability between the three systems.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, to be ITAR compliant and to allow for the free trade and the free flow of military secrets from the United States to Australian and from Australia to the United States, the United States have said that we have to set up a system that secures information on shore. If they're going to share their military secrets with us, the United States have said, 'We need the controls so that those secrets won't be shared with the rest of the world.' That's the whole purpose of the bill.

To do that, researchers and industry are required to get a whole bunch of permits and approvals if they're going to do research with foreign students or foreign collaborators outside of the bubble. The higher education sector and industry have said that involves possibly tens of thousands of permits, which would be a real burden on their industry and a real problem. Mr Nockels, in extraordinary evidence on behalf of Defence, said it would only be dozens of permits. I'm asking you again, do you have a number? It can't be what Mr Nockels says; otherwise, you're not compliant with the US ITAR requirements, which is what's driving this whole bill. Surely you have a number?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'm not sure I follow your line of argument. It is clear there will be a different requirement in terms of the United Kingdom and the United States. The compliance burden faced by industry, universities and our research sector will be significantly lower, while ensuring that controls adequately address our national security requirements. The reforms aren't intended to prevent foreign nationals from working with Australia on DSGL goods or technologies, nor are they intended to prevent foreign students or academics from engaging with Australian academic institutions. There will be less of a requirement for applications in relation to both of those countries and there will be a framework that applies to the rest of the world, just as there is a framework today.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, it is remarkable that this parliament is about to rush through legislation, and yet the government doesn't have a single answer on how many permits are going to be required—not even a guesstimate. I understand where we've got to. It seems to be that you have no idea how many permits will be required, but you'll nevertheless just rush through the legislation and hope that higher education and industry can deal with it. I get that's where the government is, and it is one of the reasons why the Greens are opposing the bill.

I want to ask you a question regarding the fundamental research definition, which was pulled together very hurriedly and is now being put in by way of, I think, nine pages of hurried amendments to the bill. The definition of 'fundamental research' provides that it's:

… basic or applied research conducted in circumstances where the results of the research

(a) are intended for public disclosure, or would ordinarily be published or shared broadly; and

(b) are not subject to any restrictions on disclosure (however imposed) for purposes connected with the security or defence of Australia or any foreign country.

What does the government intend by the phrase 'however imposed'? Is it imposed by bureaucratic arrangements, is it imposed by policy or are you talking about it being imposed by legislative controls or is it just anything?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

In relation to the sequence, it is not the case here that we're going to provide guesstimates to the Senate, despite your invitation to do that. In relation to that offence, that definition has been co-designed with the university sector. Examples of research that would be considered to constitute fundamental research include basic and applied research in science and engineering, research that is captured by the public domain exclusion, and education and teaching.

Progress reported.