Safeguarding Australia’s Military Secrets

Safeguarding Australia’s Military Secrets (SAMS) Legislation 

SAMS legislation requires certain Australian citizen and permanent residents to obtain a foreign work authorisation (FWA) if they intend to work for, or provide training to, a foreign military organisation or government body (including a foreign public university) of a relevant foreign country. The legislation applies to former members of the Australian Defence Force, Australian Public Servants from Defence or the Australian Submarine Agency and any Australian citizen or permanent resident providing training related to Part 1 of the Defence and Strategic Goods List or military tactics, techniques and procedures. Individuals requiring authorisation for an existing role have until 7 August 2024, to submit their foreign work authorisation request. Criminal offences apply to individuals convicted of breaching the SAMS legislation. The maximum penalty is 20 years imprisonment. You may contact dtca@anu.edu.au for further information. 

Background 

SAMS legislation is designed to strengthen Australia's security by preventing individuals from disclosing or exploiting classified military or related information to foreign powers with interests inconsistent with those of Australia. The SAMS Act commenced on 6 May 2024 and has amended the Defence Act 1903 to create a ‘Foreign Work Authorisation’ framework in Part IXAA. For more details, refer to the Safeguarding Australia’s Military Secrets Legislation. 

Why is SAMS legislation important? 

Australia has world class defence training and military technology. Australia needs to protect our secret and sensitive information, to ensure our region can remain secure. The legislation requires Australians to protect the secrets they learn while working with Defence, even if they are no longer connected to the Australian government. 

To whom does it apply? 

The SAMS legislation applies to the following individuals: 

Certain former members of the Australian Defence Force, Australian Public Servants who worked at Defence or the Australian Submarine Agency, who will work for a foreign military or foreign government body.

Any Australian citizen or permanent resident providing training to a foreign military or foreign government body that is related to: 

1. military tactics, techniques and procedures. 

(For more details, refer to the authorisation requirement page) 

For individuals covered by the legislation, a Foreign Work Authorisation request form can be completed here. 

Does SAMS apply to all foreign countries? 

Some countries are excluded or exempt under the legislation. Individuals are not committing an offence if they are working for, or providing training to, a military organisation or government body in the countries listed in the country list legislative instrument. Exempt countries are Canada, New Zealand, UK and USA. For more details, refer to the Defence (Non-relevant foreign country) Determination 2024 

How does previous employment affect a FWA? 

The legislation contains details about how previous employment i.e. specific roles in the Australian Defence Force and the Defence Australian Public Service Submarine Agency affect the need for a FWA. Roles are assigned a period of time that must expire after an individual has finished working for Defence, Defence Force, Submarine Agency, before the individual is no longer required to request a FWA. The period of time is designed to ensure that the value or benefit of an individual’s knowledge of sensitive Defence information has diminished sufficiently to become a low security risk. For more details, refer to the Defence (Non-foreign work restricted individual) Determination 2024. 

Before requesting a foreign work authorisation, individuals should refer to the legislation to identify their former Defence roles and confirm the associated restriction timeframes applicable to those roles. 

Individuals that have held more than 1 role will need to check all relevant roles and ensure compliance with the restriction timeframe for each role. 

If a role cannot be found in the legislation, or it is unclear which roles or durations were performed, a FWA request should be submitted using the information that is available. 

What are the exceptions? 

The SAMS legislation provides the exceptions described above as well as the following exceptions to ensure it only applies to the relevant individuals. Individuals do not require authorisation if: 

• a current FWA is in place for the individual’s current employment 
• 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. 

What happens if I don’t comply with the SAMS legislation? 

Criminal offences apply to individuals convicted of breaching the SAMS legislation. The maximum penalty is 20 years imprisonment. Legal obligations under the SAMS legislation came into effect on 6 May 2024. Individuals requiring authorisation for an existing role have until 7 August 2024, to submit their foreign work authorisation request. 

How long does a Foreign Work Authorisation last?  

The maximum period for a foreign work authorisation is three years. Individuals requiring a longer period of authorisation need to request a new foreign work authorisation before their previous authorisation expires.

If the basis or conditions on which the Foreign Work Authorisation was granted change in this period then the individual will need to assess their requirement to request a variation to their Foreign Work Authorisation. 

Can I Continue Working While Awaiting Foreign Work Authorisation Assessment? 

The SAMS legislation commenced on 6 May 2024. Individuals working for a foreign military organisation or government body on that date, should assess their requirement for a foreign work authorisation. Individuals requiring a foreign work authorisation are required to submit their request by 7 August 2024, in line with the commencement of offence provisions in the legislation. Once a request has been submitted, an individual can continue to perform that work until the outcome of their foreign work authorisation request has been provided to them.

After 7 August 2024, individuals who are already working and continue to work for a foreign military organisation or government body, and have not submitted a foreign work authorisation request, may be committing an offence under the legislation. 

Can I Start New Work Before Receiving a Foreign Work Authorisation? 

After 7 August 2024, individuals making arrangements to commence working in a role or providing training requiring a foreign work authorisation, must wait until the outcome of their foreign work authorisation request is provided. 

Individuals commencing work or providing training prior to receiving a foreign work authorisation, may be committing an offence under the legislation. Individuals are encouraged to submit their foreign work authorisation request as soon as they have sufficient information to complete the form.  

Note: Individuals holding a foreign work authorisation are exempt from applying for a Defence export control permit under Section 10C of the DTAC Amendment Act 2024.  

Get in touch 

If you have any questions or concerns regarding this Scheme, we are here to help. Contact us at dtca@anu.edu.au and we will get back to you within 5 working days.