Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Defence Amendment (Safeguarding
Australia's Military Secrets
) Bill 2023
No. , 2023
(Defence)
A Bill for an Act to amend the law relating to
defence, and for related purposes
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1
--
Amendments
3
Defence Act 1903
3
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
1
A Bill for an Act to amend the law relating to
1
defence, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Defence Amendment (
Safeguarding Australia's
5
Military Secrets) Act 2023
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The 28th day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
3
Schedule
1--Amendments
1
2
Defence Act 1903
3
1 After Part IX
4
Insert:
5
Part
IXAA--Performing work for or providing
6
training to a foreign military organisation
7
or government body
8
Division
1--Introduction
9
112 Simplified outline of this Part
10
Foreign work restricted individuals
11
This Part regulates the work that former defence staff members
12
may perform. They are called foreign work restricted individuals.
13
A foreign work restricted individual must not perform work for, or
14
on behalf of, a military organisation, or government body, of a
15
relevant foreign country if the individual does not hold a foreign
16
work authorisation for the work and no other exception applies.
17
Other individuals
18
An individual, other than a foreign work restricted individual, must
19
not provide training of the following kind to, or on behalf of, a
20
military organisation, or government body, of a relevant foreign
21
country if the individual does not hold a foreign work authorisation
22
for the training and no other exception applies:
23
(a) training relating to goods, software or technology within
24
the scope of Part 1 of the Defence and Strategic Goods
25
List;
26
Schedule 1
Amendments
4
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(b) training relating to military tactics, military techniques
1
or military procedures.
2
Relevant foreign countries
3
The Minister may make a legislative instrument to exclude a
4
foreign country from being a relevant foreign country.
5
Foreign work authorisations
6
An individual may request a foreign work authorisation. The
7
Minister must grant or refuse the authorisation. The Minister must
8
refuse the authorisation if the Minister reasonably believes that the
9
work or training by the individual would prejudice the security,
10
defence or international relations of Australia.
11
If a foreign work authorisation is granted to an individual, the
12
authorisation may be granted subject to conditions and may be
13
cancelled, suspended or varied.
14
An individual must be given an opportunity to make a written
15
statement before the Minister makes certain adverse decisions
16
about foreign work authorisations.
17
An individual may seek merits review of certain decisions made
18
under this Part.
19
113 Definitions
20
In this Part:
21
control
, over a company, body or association, includes control as a
22
result of, or by means of, trusts, agreements, arrangements,
23
understandings or practices, whether or not having legal or
24
equitable force and whether or not based on legal or equitable
25
rights.
26
Defence and Strategic Goods List
has the same meaning as in the
27
Defence Trade Controls Act 2012
.
28
defence staff member
means:
29
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
5
(a) one of the following:
1
(i) the Chief of the Defence Force or the Vice Chief of the
2
Defence Force;
3
(ii) the Chief of Navy, the Chief of Army or the Chief of
4
Air Force;
5
(iii) a member of the Permanent Forces;
6
(iv) a member of the Reserves who is rendering continuous
7
full-time service; or
8
(b) the Secretary of the Department or an APS employee in the
9
Department; or
10
(c) the Head of the Australian Submarine Agency or an APS
11
employee in the Australian Submarine Agency.
12
foreign work authorisation
means an authorisation granted to an
13
individual under section 115C.
14
foreign work restricted individual
has the meaning given by
15
section 114.
16
government
of a foreign country or a part of a foreign country
17
means the authority exercising effective governmental control in
18
that foreign country or that part of that foreign country.
19
government body
of a foreign country means:
20
(a) the government of the foreign country or of part of the
21
foreign country; or
22
(b) an authority of the government of the foreign country; or
23
(c) an authority of the government of part of the foreign country;
24
or
25
(d) a local government body or regional government body of the
26
foreign country; or
27
(e) a public enterprise of the foreign country.
28
military organisation
of a foreign country means:
29
(a) the armed forces of the government of the foreign country; or
30
(b) the civilian component of:
31
(i) the Department of State of the foreign country; or
32
(ii) a government agency in the foreign country;
33
that is responsible for the defence of that country.
34
Schedule 1
Amendments
6
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
permanent resident of Australia
means a person who is a
1
permanent resident within the meaning of the
Australian
2
Citizenship Act 2007
.
3
public enterprise
of a foreign country means a company or any
4
other body or association where:
5
(a) in the case of a company
--
one or more of the following
6
apply:
7
(i) the government of the foreign country or of part of the
8
foreign country holds more than 50% of the issued share
9
capital of the company;
10
(ii) the government of the foreign country or of part of the
11
foreign country holds more than 50% of the voting
12
power in the company;
13
(iii) the government of the foreign country or of part of the
14
foreign country is in a position to appoint more than
15
50% of the company's board of directors;
16
(iv) the directors (however described) of the company are
17
accustomed or under an obligation (whether formal or
18
informal) to act in accordance with the directions,
19
instructions or wishes of the government of the foreign
20
country or of part of the foreign country;
21
(v) the government of the foreign country or of part of the
22
foreign country is in a position to exercise control over
23
the company; and
24
(b) in the case of any other body or association
--
either or both
25
of the following apply:
26
(i) the members of the executive committee (however
27
described) of the body or association are accustomed or
28
under an obligation (whether formal or informal) to act
29
in accordance with the directions, instructions or wishes
30
of the government of the foreign country or of part of
31
the foreign country;
32
(ii) the government of the foreign country or of part of the
33
foreign country is in a position to exercise control over
34
the body or association; and
35
(c) the company, body or association:
36
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
7
(i) enjoys special legal rights or a special legal status under
1
a law of the foreign country or of part of the foreign
2
country; or
3
(ii) enjoys special benefits or privileges under a law of the
4
foreign country or of part of the foreign country;
5
because of the relationship of the company, body or
6
association with the government of the foreign country or of
7
the part of the foreign country, as the case may be.
8
relevant foreign country
means a foreign country other than a
9
foreign country covered by an instrument in force under
10
subsection 115(3).
11
reviewable decision
: see subsection 115K(9).
12
training
means any training:
13
(a) whether for reward or otherwise; and
14
(b) whether provided in a personal capacity or in any other
15
capacity, including:
16
(i) as an agent, officer or employee of a body corporate
17
incorporated within or outside Australia; or
18
(ii) in, or with, any partnership, trust, association,
19
organisation or other body established, formed or
20
created within or outside Australia; and
21
(c) whether regular or irregular training; and
22
(d) whether formal or informal instruction.
23
work
means any work (including the provision of training):
24
(a) whether for reward or otherwise; and
25
(b) whether performed in a personal capacity or in any other
26
capacity, including:
27
(i) as an agent, officer or employee of a body corporate
28
incorporated within or outside Australia; or
29
(ii) in, or with, any partnership, trust, association,
30
organisation or other body established, formed or
31
created within or outside Australia.
32
Schedule 1
Amendments
8
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
114 Definition of
foreign work restricted individual
1
(1) A
foreign work restricted individual
is an individual who was, but
2
is not currently, a defence staff member.
3
(2) Despite subsection (1), an individual is not a foreign work
4
restricted individual if the individual is included in a class of
5
individuals covered by an instrument in force under
6
subsection 115(1).
7
115 Ministerial legislative instruments
8
Individuals who are not foreign work restricted individuals
9
(1) The Minister may, by legislative instrument, determine a class of
10
individuals for the purposes of subsection 114(2).
11
(2) Without limiting subsection (1), the class may be determined by
12
reference to the following:
13
(a) particular kinds of work performed by defence staff
14
members;
15
(b) the period of time that has elapsed since the performance of
16
particular kinds of work by defence staff members.
17
Countries that are not relevant foreign countries
18
(3) The Minister may, by legislative instrument, determine a foreign
19
country not to be a relevant foreign country for the purposes of the
20
definition of
relevant foreign country
in section 113.
21
Division
2--Foreign work restricted individuals working
22
for a foreign military organisation or government
23
body
24
115A Offence
--
foreign work restricted individuals working for a
25
foreign military organisation or government body
26
Offence
27
(1) An individual commits an offence if:
28
(a) the individual is a foreign work restricted individual; and
29
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
9
(b) the individual performs work; and
1
(c) the work is performed for, or on behalf of:
2
(i) a military organisation of a foreign country; or
3
(ii) a government body of a foreign country; and
4
(d) the foreign country is a relevant foreign country.
5
Penalty: Imprisonment for 20 years.
6
Exceptions
7
(2) Subsection (1) does not apply if a foreign work authorisation is in
8
force that authorises the individual to perform the work for, or on
9
behalf of, the military organisation, or the government body, of the
10
relevant foreign country.
11
Note:
A defendant bears an evidential burden in relation to the matter in this
12
subsection (see subsection 13.3(3) of the
Criminal Code
).
13
(3) Subsection (1) does not apply if the work performed by the
14
individual is authorised by a written agreement to which the
15
Commonwealth is a party.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
subsection (see subsection 13.3(3) of the
Criminal Code
).
18
(4) Subsection (1) does not apply if:
19
(a) the work performed by the individual is solely in the course
20
of, and as part of, the
individual's
service in any capacity in
21
or with any armed force; and
22
(b) a declaration under subsection 119.8(1) of the
Criminal Code
23
covers the individual and the circumstances of the
24
individual's
service in or with the armed force.
25
Note:
A defendant bears an evidential burden in relation to the matter in this
26
subsection (see subsection 13.3(3) of the
Criminal Code
).
27
(5) Subsection (1) does not apply if the work performed by the
28
individual is in the course of, and as part of, the
individual's
29
employment or engagement by the Commonwealth.
30
Note:
A defendant bears an evidential burden in relation to the matter in this
31
subsection (see subsection 13.3(3) of the
Criminal Code
).
32
Schedule 1
Amendments
10
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(6) Subsection (1) does not apply if the work performed by the
1
individual is solely or primarily for either or both of the following
2
purposes:
3
(a) providing aid of a humanitarian nature;
4
(b) performing an official duty for:
5
(i) the United Nations or an agency of the United Nations;
6
or
7
(ii) the International Committee of the Red Cross.
8
Note:
A defendant bears an evidential burden in relation to the matter in this
9
subsection (see subsection 13.3(3) of the
Criminal Code
).
10
Geographical jurisdiction
11
(7) Section 15.2 of the
Criminal Code
(extended geographical
12
jurisdiction
--
category B) applies to an offence against this section.
13
Division
3--Other individuals providing training to a
14
foreign military organisation or government body
15
115B Offence
--
other individuals providing training to a foreign
16
military organisation or government body
17
Offence
18
(1) An individual commits an offence if:
19
(a) the individual is an Australian citizen or a permanent resident
20
of Australia; and
21
(b) the individual is not a foreign work restricted individual; and
22
(c) the individual provides training to, or on behalf of:
23
(i) a military organisation of a foreign country; or
24
(ii) a government body of a foreign country; and
25
(d) either:
26
(i) the training relates to goods, software or technology
27
within the scope of Part 1 of the Defence and Strategic
28
Goods List; or
29
(ii) the training relates to military tactics, military
30
techniques or military procedures; and
31
(e) the foreign country is a relevant foreign country.
32
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
11
Penalty: Imprisonment for 20 years.
1
Exceptions
2
(2) Subsection (1) does not apply if a foreign work authorisation is in
3
force that authorises the individual to provide the training to, or on
4
behalf of, the military organisation, or the government body, of the
5
relevant foreign country.
6
Note:
A defendant bears an evidential burden in relation to the matter in this
7
subsection (see subsection 13.3(3) of the
Criminal Code
).
8
(3) Subsection (1) does not apply if the training provided by the
9
individual is authorised by a written agreement to which the
10
Commonwealth is a party.
11
Note:
A defendant bears an evidential burden in relation to the matter in this
12
subsection (see subsection 13.3(3) of the
Criminal Code
).
13
(4) Subsection (1) does not apply if:
14
(a) the training provided by the individual is solely in the course
15
of, and as part of, the individual's service in any capacity in
16
or with any armed force; and
17
(b) a declaration under subsection 119.8(1) of the
Criminal Code
18
covers the individual and the circumstances of the
19
individual's service in or with the
armed force.
20
Note:
A defendant bears an evidential burden in relation to the matter in this
21
subsection (see subsection 13.3(3) of the
Criminal Code
).
22
(5) Subsection (1) does not apply if the training provided by the
23
individual is in the course of, and as part of, the individual's
24
employment or engagement by the Commonwealth.
25
Note:
A defendant bears an evidential burden in relation to the matter in this
26
subsection (see subsection 13.3(3) of the
Criminal Code
).
27
(6) Subsection (1) does not apply if the training provided by the
28
individual is solely or primarily for either or both of the following
29
purposes:
30
(a) providing aid of a humanitarian nature;
31
(b) performing an official duty for:
32
(i) the United Nations or an agency of the United Nations;
33
or
34
(ii) the International Committee of the Red Cross.
35
Schedule 1
Amendments
12
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
Note:
A defendant bears an evidential burden in relation to the matter in this
1
subsection (see subsection 13.3(3) of the
Criminal Code
).
2
Geographical jurisdiction
3
(7) Section 15.2 of the
Criminal Code
(extended geographical
4
jurisdiction
--
category B) applies to an offence against this section.
5
Division
4--Foreign work authorisations
6
115C Grant of foreign work authorisation
7
Request for authorisation
8
(1) An individual may make a request to the Minister for an
9
authorisation under this section.
10
(2) However, an individual cannot make a request for an authorisation
11
if:
12
(a) in relation to Division 2
--
the individual made, within the last
13
12 months, a request for an authorisation to perform the same
14
work for, or on behalf of, the same military organisation, or
15
government body, of a relevant foreign country; or
16
(b) in relation to Division 3
--
the individual made, within the last
17
12 months, a request for an authorisation to provide the same
18
training to, or on behalf of, the same military organisation, or
19
government body, of a relevant foreign country.
20
(3) A request made under subsection (1) must:
21
(a) be in writing; and
22
(b) be in the form approved by the Secretary under
23
subsection (13); and
24
(c) contain the information, and be accompanied by any
25
documents, that the form requires.
26
Note:
An individual may commit an offence if the individual provides false
27
or misleading information or documents (see sections 137.1 and 137.2
28
of the
Criminal Code
).
29
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
13
Granting, or refusing to grant, an authorisation
1
(4) The Minister must, in writing and as soon as reasonably practicable
2
after an individual makes a request under subsection (1):
3
(a) grant the individual an authorisation (a
foreign work
4
authorisation
) to:
5
(i) perform specified work for, or on behalf of, a specified
6
military organisation, or a specified government body,
7
of a specified relevant foreign country; or
8
(ii) provide specified training to, or on behalf of, a specified
9
military organisation, or a specified government body,
10
of a specified relevant foreign country; or
11
(b) refuse to grant the individual an authorisation under this
12
section.
13
Note:
The Minister must give the individual written notice before refusing to
14
grant the individual an authorisation or before granting an
15
authorisation that is different from the authorisation requested (see
16
section 115J).
17
(5) In deciding whether to grant the individual a foreign work
18
authorisation under this section for the purposes of Division 2, the
19
Minister must consider the following:
20
(a) the kind of work, and the role, performed by the individual as
21
a defence staff member;
22
(b) any other kind of work, that the Minister is aware of,
23
performed by the individual other than as a defence staff
24
member;
25
(c) the length of time that the individual was a defence staff
26
member;
27
(d) the kind of information accessed by the individual while a
28
defence staff member;
29
(e) the kind of work the individual would perform if the
30
authorisation were granted;
31
(f) the military organisation, or the government body, of the
32
foreign country for which, or on behalf of which, the
33
individual would perform that work if the authorisation were
34
granted.
35
Schedule 1
Amendments
14
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(6) In deciding whether to grant the individual a foreign work
1
authorisation under this section for the purposes of Division 3, the
2
Minister must consider the following:
3
(a) the kind of training the individual would provide if the
4
authorisation were granted;
5
(b) the military organisation, or the government body, of the
6
foreign country to which, or on behalf of which, the
7
individual would provide that training if the authorisation
8
were granted.
9
(7) Subsection (5) or (6) does not limit the matters the Minister may
10
consider in deciding whether to grant an authorisation under this
11
section.
12
(8) The Minister must refuse to grant the individual an authorisation
13
under this section if the Minister reasonably believes that the
14
performance of the work, or the provision of the training, by the
15
individual would prejudice the security, defence or international
16
relations of Australia.
17
(9) Subsection (8) does not limit the grounds on which the Minister
18
may refuse to grant an authorisation under this section.
19
Notice
20
(10) If the Minister grants an individual an authorisation under this
21
section:
22
(a) the Minister must give the individual a copy of the
23
authorisation, which must specify the period the authorisation
24
is in force (which must be no longer than 3 years); and
25
(b) if the authorisation is different from the authorisation
26
requested by the individual or is granted subject to
27
conditions
--
the Minister must give the individual written
28
notice setting out the reasons for this and the individual's
29
review rights under sections 115K and 115L.
30
Note:
Section 115M deals with disclosing reasons for decisions.
31
(11) If the Minister refuses to grant an individual an authorisation under
32
this section, the Minister must give the individual written notice of
33
the refusal. The notice must:
34
(a) include the reasons for the refusal; and
35
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
15
(b)
set out the individual's review rights under sections
115K
1
and 115L.
2
Note:
Section 115M deals with disclosing reasons for decisions.
3
Conditions
4
(12) The Minister may grant an individual an authorisation under this
5
section subject to any conditions specified in the authorisation.
6
Note:
The Minister must give the individual written notice before granting
7
an authorisation subject to conditions (see section 115J).
8
Approved form
9
(13) The Secretary may, in writing, approve a form for the purposes of
10
paragraph (3)(b). The Secretary must cause the form to be
11
published on the Department's website
.
12
115D Offence for failing to comply with a condition of an
13
authorisation
14
Offence
15
(1) An individual commits an offence if:
16
(a) a foreign work authorisation granted to the individual is in
17
force; and
18
(b) the authorisation is subject to a condition; and
19
(c) the individual does an act or omits to do an act; and
20
(d) the act or omission contravenes the condition.
21
Penalty: Imprisonment for 5 years.
22
Geographical jurisdiction
23
(2) Section 15.2 of the
Criminal Code
(extended geographical
24
jurisdiction
--
category B) applies to an offence against this section.
25
Schedule 1
Amendments
16
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
115E Cancellation of authorisation
1
Mandatory cancellation
2
(1) The Minister must, in writing, cancel a foreign work authorisation
3
granted to an individual if:
4
(a) the Minister reasonably believes, as a result of a change in
5
circumstances, that the individual's performance of work
or
6
provision of training, as specified in the authorisation, would
7
prejudice the security, defence or international relations of
8
Australia; or
9
(b) the individual requests the Minister to cancel the
10
authorisation.
11
(2) The Minister is not required to observe any requirements of the
12
natural justice hearing rule in relation to cancelling a foreign work
13
authorisation under subsection (1).
14
Discretionary cancellation
15
(3) The Minister may, in writing, cancel a foreign work authorisation
16
granted to an individual if the Minister is satisfied that:
17
(a) the individual has contravened a condition specified in the
18
authorisation; or
19
(b) the individual knowingly provided information or a
20
document that was false or misleading in a material
21
particular:
22
(i) in making the request for the authorisation; or
23
(ii) in making a request for a variation of the authorisation;
24
or
25
(iii) in providing a written statement in response to a notice
26
of a proposed decision in relation to the authorisation;
27
or
28
(c) it would be appropriate in all the circumstances to cancel the
29
authorisation.
30
Note:
The Minister must give the individual written notice before cancelling
31
the authorisation under this subsection (see section 115J).
32
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
17
Notice
1
(4) The Minister must give written notice to the individual of the
2
cancellation of the authorisation as soon as reasonably practicable
3
after making the decision.
4
(5) The notice must:
5
(a) include the reasons for the decision; and
6
(b) specify the day the cancellation takes effect (which must not
7
be earlier than the day after the notice is given to the
8
individual); and
9
(c)
set out the individual's review rights under
sections 115K
10
and 115L.
11
Note:
Section 115M deals with disclosing reasons for decisions.
12
115F Suspension of authorisation
13
Suspension
14
(1) The Minister may, in writing, suspend a foreign work authorisation
15
granted to an individual if the Minister is satisfied that:
16
(a) the individual has contravened a condition specified in the
17
authorisation; or
18
(b) it would be appropriate in all the circumstances to suspend
19
the authorisation.
20
Note:
The Minister must give the individual written notice before
21
suspending the authorisation (see section 115J).
22
(2) The Minister must give written notice to the individual of the
23
suspension of the authorisation as soon as reasonably practicable
24
after making the decision.
25
(3) The notice must:
26
(a) include the reasons for the decision; and
27
(b) specify the period of suspension (which must not start earlier
28
than the day after the notice is given to the individual); and
29
(c)
set out the individual's review rights under
sections 115K
30
and 115L.
31
Note:
Section 115M deals with disclosing reasons for decisions.
32
Schedule 1
Amendments
18
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(4) A foreign work authorisation granted to an individual is not in
1
force while suspended, but the period specified in the authorisation
2
continues to run despite the suspension.
3
(5) The suspension of a foreign work authorisation under this section
4
does not prevent the Minister from cancelling it under section 115E
5
or varying it under section 115G or 115H.
6
Lifting of suspension
7
(6) If a foreign work authorisation granted to an individual is
8
suspended under this section, the Minister may lift the suspension
9
by written notice given to the individual if the Minister is satisfied
10
that it would be appropriate in all the circumstances to do so.
11
(7) The notice must specify the day the suspension is lifted.
12
115G Variation of authorisation
--
on
Minister's own initiative
13
Variation on own initiative
14
(1) The Minister may,
on the Minister's own initiative and
in writing,
15
vary a foreign work authorisation granted to an individual if the
16
Minister is satisfied that:
17
(a) the individual has contravened a condition specified in the
18
authorisation; or
19
(b) it would be appropriate in all the circumstances to vary the
20
authorisation.
21
Note:
The Minister must give the individual written notice before deciding
22
to vary the authorisation (see section 115J).
23
Notice
24
(2) If the Minister varies the authorisation, the Minister must as soon
25
as reasonably practicable after making the decision:
26
(a) give the individual a copy of the variation, which must
27
specify the day the variation takes effect (which must not be
28
earlier than the day after the copy is given to the individual);
29
and
30
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
19
(b) give the individual written notice setting out the reasons for
1
the
decision and the individual's review rights under
2
sections 115K and 115L.
3
Note:
Section 115M deals with disclosing reasons for decisions.
4
115H Variation of authorisation
--
on request
5
Request for variation
6
(1) An individual may request the Minister to vary a foreign work
7
authorisation granted to the individual.
8
(2) The request must:
9
(a) be in writing; and
10
(b) be in the form approved by the Secretary under
11
subsection (6); and
12
(c) contain the information, and be accompanied by any
13
documents, that the form requires.
14
Note:
An individual may commit an offence if the individual provides false
15
or misleading information or documents (see sections 137.1 and 137.2
16
of the
Criminal Code
).
17
Decision to vary, or to refuse to vary, authorisation
18
(3) The Minister must, in writing and as soon as reasonably practicable
19
after the request is made, vary the authorisation in a specified way
20
or refuse to vary the authorisation.
21
Note:
The Minister must give the individual written notice before varying
22
the authorisation in a way that is different from the variation requested
23
or before refusing to vary the authorisation (see section 115J).
24
Notice
25
(4) If the Minister varies the authorisation, the Minister must, as soon
26
as reasonably practicable after making the decision:
27
(a) give the individual a copy of the variation, which must
28
specify the day the variation takes effect (which must not be
29
earlier than the day after the copy is given to the individual);
30
and
31
(b) if the variation is different from the variation requested by
32
the individual (including because one or more conditions for
33
Schedule 1
Amendments
20
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
the authorisation are varied or imposed)
--
give the individual
1
written notice setting out the reasons for the decision and the
2
indiv
idual's review rights under
sections 115K and 115L.
3
Note:
Section 115M deals with disclosing reasons for decisions.
4
(5) If the Minister refuses to vary the authorisation, the Minister must,
5
as soon as reasonably practicable after making the decision, give
6
written notice to the individual of the refusal. The notice must:
7
(a) include the reasons for the refusal; and
8
(b)
set out the individual's review rights under
sections 115K
9
and 115L.
10
Note:
Section 115M deals with disclosing reasons for decisions.
11
Approved form
12
(6) The Secretary may, in writing, approve a form for the purposes of
13
paragraph (2)(b). The Secretary must cause the form to be
14
published on the Department's website
.
15
115J Notice before decision about authorisation
16
(1) The Minister must not make a decision covered by subsection (5)
17
in relation to an individual unless the Minister has given the
18
individual written notice of the proposed decision.
19
(2) The notice must:
20
(a) state the proposed decision; and
21
(b) include the reasons for the proposed decision; and
22
(c) invite the individual to give to the Minister, within the period
23
specified in the notice, a written statement relating to the
24
proposed decision.
25
Note:
Section 115M deals with disclosing reasons for proposed decisions.
26
(3) The period specified in the notice must not be less than 14 days
27
beginning on the day the notice is given to the individual.
28
(4) The Minister must, before making a decision covered by
29
subsection (5), consider any written statement that is given to the
30
Minister within the period specified in the notice.
31
(5) The following decisions are covered by this subsection:
32
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
21
(a) a decision under section 115C to refuse to grant an individual
1
an authorisation;
2
(b) a decision under section 115C to grant an individual a foreign
3
work authorisation that is different from the authorisation
4
requested;
5
(c) a decision under section 115C to grant an individual a foreign
6
work authorisation subject to one or more conditions;
7
(d) a decision under subsection 115E(3) to cancel a foreign work
8
authorisation;
9
(e) a decision under section 115F to suspend a foreign work
10
authorisation;
11
(f) a decision under section 115G to vary a foreign work
12
authorisation on the Minister's own initiative;
13
(g) a decision under section 115H to refuse to vary a foreign
14
work authorisation;
15
(h) a decision under section 115H to vary a foreign work
16
authorisation granted to an individual in a way that is
17
different from the variation requested (including because one
18
or more conditions for the authorisation are varied or
19
imposed).
20
(6) This section is taken to be an exhaustive statement of the
21
requirements of the natural justice hearing rule in relation to the
22
matters it deals with.
23
115K Internal review of decisions
24
Application for internal review
25
(1) A person whose interests are affected by a reviewable decision
26
may apply to the Minister for a review of the decision within 28
27
days after the person is notified of the decision.
28
Note:
For
reviewable decision
, see subsection (9).
29
(2) The application must:
30
(a) be in writing; and
31
(b) be in the form approved by the Secretary under
32
subsection (8); and
33
Schedule 1
Amendments
22
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(c) contain the information, and be accompanied by any
1
documents, that the form requires.
2
(3) Subsection (1) does not apply to a reviewable decision that is made
3
by the Minister personally.
4
Review of decision
5
(4) On application for review of a reviewable decision, the Minister
6
must:
7
(a) review the decision; and
8
(b) affirm, vary or revoke the decision.
9
(5) The Minister must give the applicant written notice of the
10
Minister's decision to
affirm, vary or revoke the reviewable
11
decision within 90 days after receiving the application.
12
(6) The notice must:
13
(a) include the reasons for the decision; and
14
(b) set out the
applicant's
review rights under section 115L.
15
Note:
Section 115M deals with disclosing reasons for decisions.
16
(7) The Minister is taken to have decided to affirm the reviewable
17
decision if the Minister does not give the applicant such a notice
18
within that period.
19
Approved form
20
(8) The Secretary may, in writing, approve a form for the purposes of
21
paragraph (2)(b). The Secretary must cause the form to be
22
published on the Department's website
.
23
Reviewable decision
24
(9) Each of the following decisions is a
reviewable decision
:
25
(a) a decision under section 115C to refuse to grant an individual
26
an authorisation;
27
(b) a decision under section 115C to grant an individual a foreign
28
work authorisation that is different from the authorisation
29
requested;
30
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
23
(c) a decision under section 115C to grant an individual a foreign
1
work authorisation subject to one or more conditions;
2
(d) a decision under section 115E to cancel a foreign work
3
authorisation, except at the request of an individual;
4
(e) a decision under section 115F to suspend a foreign work
5
authorisation;
6
(f) a decision under section 115G to vary a foreign work
7
authorisation on the Minister's own initiative;
8
(g) a decision under section 115H to refuse to vary a foreign
9
work authorisation;
10
(h) a decision under section 115H to vary a foreign work
11
authorisation granted to an individual in a way that is
12
different from the variation requested (including because one
13
or more conditions for the authorisation are varied or
14
imposed).
15
115L AAT review of decisions
16
Applications may be made to the AAT for review of the following
17
decisions:
18
(a) a reviewable decision that is made by the Minister
19
personally;
20
(b) a decision of the Minister made under section 115K to
21
affirm, vary or revoke a reviewable decision.
22
Note:
The Minister may be taken to have affirmed a reviewable decision:
23
see subsection 115K(7).
24
115M Disclosure of reasons for decisions
25
(1) If:
26
(a) the Minister:
27
(i) proposes to make a decision covered by
28
subsection 115J(5); or
29
(ii) makes a reviewable decision; or
30
(iii) makes a decision under section 115K to affirm, vary or
31
revoke a reviewable decision; and
32
(b) reasons for the proposed decision, or the decision, must be
33
given in a notice under this Part;
34
Schedule 1
Amendments
24
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
the notice must not disclose any reasons whose disclosure the
1
Minister reasonably believes would prejudice the security, defence
2
or international relations of Australia.
3
(2) If reasons are not disclosed in a notice under this Part because of
4
subsection (1), that fact must be stated in the notice.
5
Division
5--Other matters
6
115N Delegation by Minister
7
(1)
The Minister may, in writing, delegate all or any of the Minister's
8
functions or powers under this Part to:
9
(a) an SES employee in the Department; or
10
(b) an officer of the Navy who holds the rank of Commodore or
11
a higher rank; or
12
(c) an officer of the Army who holds the rank of Brigadier or a
13
higher rank; or
14
(d) an officer of the Air Force who holds the rank of Air
15
Commodore or a higher rank.
16
Note:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
17
provisions relating to delegations.
18
(2)
However, the Minister must not delegate the Minister's
power to
19
make an instrument under subsection 115(1) or (3).
20
115P Review of this Part
21
(1) The Minister must cause an independent review to be conducted of
22
the operation of this Part and any legislative instrument in force
23
under section 115.
24
(2) The review must commence as soon as practicable after the end of
25
5 years after this Part commences.
26
(3) The persons who conduct the review must give the Minister a
27
written report of the review.
28
(4) The Minister must cause a copy of the report of the review to be
29
tabled in each House of the Parliament within 15 sitting days of
30
that House after the report is given to the Minister.
31
Amendments
Schedule 1
No. , 2023
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
25
2 Application of amendments
--
performing work for a foreign
1
military organisation or government body
2
(1)
Section 115A of the
Defence Act 1903
, as inserted by this Schedule,
3
applies in relation to an individual who performs work on or after the
4
start day, whether the individual ceased to be a defence staff member
5
before, on or after that day.
6
(2)
The
start day
is the day after the end of the period of 3 months
7
beginning on the day this item commences.
8
(3)
However, for an individual:
9
(a) who:
10
(i) immediately before the commencement of this item, is
11
performing work for, or on behalf of, a military
12
organisation, or government body, of a relevant foreign
13
country; or
14
(ii) starts to perform such work after that commencement
15
and before the end of the period of 3 months beginning
16
on the day this item commences; and
17
(b) who, on or after that commencement and before the end of
18
that 3-month period, makes a request under section 115C of
19
the
Defence Act 1903
for a foreign work authorisation for
20
that work;
21
the
start day
is:
22
(c) if, in response to that request, the Minister grants a foreign
23
work authorisation under that section
--
the day after the
24
individual is given a copy of the authorisation; or
25
(d) if, in response to that request, the Minister refuses to grant
26
the individual a foreign work authorisation for that work
--
27
the day after the Minister gives the individual written notice
28
of the refusal.
29
3 Application of amendments
--
providing training to a foreign
30
military organisation or government body
31
(1)
Section 115B of the
Defence Act 1903
, as inserted by this Schedule,
32
applies in relation to an individual who provides training on or after the
33
start day.
34
Schedule 1
Amendments
26
Defence Amendment (Safeguarding Australia's Military Secrets) Bill
2023
No. , 2023
(2)
The
start day
is the day after the end of the period of 3 months
1
beginning on the day this item commences.
2
(3)
However, for an individual:
3
(a) who:
4
(i) immediately before the commencement of this item, is
5
providing training to, or on behalf of, a military
6
organisation, or government body, of a relevant foreign
7
country, being training of a kind covered by
8
paragraph 115B(1)(d) of the
Defence Act 1903
; or
9
(ii) starts to provide such training after that commencement
10
and before the end of the period of 3 months beginning
11
on the day this item commences; and
12
(b) who, on or after that commencement and before the end of
13
that 3-month period, makes a request under section 115C of
14
that Act for a foreign work authorisation for that training;
15
the
start day
is:
16
(c) if, in response to that request, the Minister grants a foreign
17
work authorisation under that section
--
the day after the
18
individual is given a copy of the authorisation; or
19
(d) if, in response to that request, the Minister refuses to grant
20
the individual a foreign work authorisation for that training
--
21
the day after the Minister gives the individual written notice
22
of the refusal.
23