Defence Amendment (Safeguarding Australia""'s Military Secrets) Bill 2023 [2023] AUSStaCSBSD 182 (18 October 2023)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	The Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 (the bill) amends the Defence Act 1903 (the Defence Act), through the insertion of a new Part IXAA which regulates the work that certain former defence staff members - called foreign work restricted individuals - can perform without a foreign work authorisation. The bill also regulates the training that Australian citizens and permanent residents, other than foreign work restricted individuals, may provide without a foreign work authorisation.
Portfolio	Defence
Introduced	House of Representatives on 14 September 2023
Bill status	Before the House of Representatives

1.29 Proposed section 115B inserts a new criminal offence into the Defence Act 1903 (the Act). Proposed subsection 115B(1) prescribes that an individual commits an offence if they are an Australian citizen or permanent resident45F^[14] and not a foreign work restricted individual46F^[15], and provide training to, or on behalf of47F^[16], a military organisation of a foreign country48F^[17] or a foreign country government body49F^[18], and the training relates to goods, software or technology within the scope of Part 1 of the Defence and Strategic Goods List50F^[19] or to military tactics, military techniques or military procedures51F^[20], and the foreign country is a relevant foreign country.5F^[21]

1.30 Proposed subsection 115B(1) prescribes a maximum criminal penalty of 20 years imprisonment.

1.31 There are five offence-specific defences prescribed in proposed section 115B and each defence carries a reversal of the evidential burden of proof. The defences are:

1.32 Proposed section 115A sets out a comparable offence which applies to 'foreign work restricted individuals', who are defined in proposed section 114 as an individual who was, but is not currently, a defence staff member. The committee notes that the offence in proposed section 115B applies to all Australian citizens and permanent residents regardless of any military or defence expertise. Proposed section 115B is therefore of more concern to the committee as it applies to Australian citizens and permanent residents regardless of any military or related expertise. It is unclear why the same penalty applies to contravention of proposed section 115B as proposed section 115A, given that an ex-Defence staff member is likely to have expert or sensitive military knowledge which a civilian would not.

1.33 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.53F^[22] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.34 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.

1.35 In relation to the reversed evidential burdens in proposed subsection 115B(2), the explanatory memorandum states:

...It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge.

The defendant will bear the burden of adducing or pointing to evidence that suggests a reasonable possibility that the foreign work authorisation was in force for this exception to be made out. If the defendant is able to meet this evidential burden, the prosecution will be required to refute the exception beyond a reasonable doubt.54F^[23]

1.36 A similar explanation is provided for in relation to the reversed evidential burden in proposed subsection 115B(4).

1.37 In relation to the reversed evidential burdens in proposed subsection 115B(3), the explanatory memorandum states:

...the defendant would bear the evidential burden to prove that the individual had authorisation by written agreement and the Commonwealth was a party to that agreement. It is appropriate for the defendant to bear the evidential burden because this fact would be within the defendant’s knowledge.

For example, the individual may have correspondence from the Commonwealth to the individual in relation to the agreement, a copy of the agreement, or other relevant official documentation in their possession.55F^[24]

1.38 In relation to the reversed evidential burdens in proposed subsection 115B(5) the explanatory memorandum provides a similar justification and notes that the defendant may have 'correspondence of their employment or engagement from the Commonwealth to the individual, a signed letter of offer from the Commonwealth, or payslips in their possession'.56F^[25] In relation to proposed subsection 115B(6) the explanatory memorandum adds that the individual may have 'correspondence from the humanitarian agency in relation to the work performed, and relevant duty statements from the United Nations, an agency of the United Nations or the International Committee of the Red Cross'.57F^[26]

1.39 The relevant test is that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where the matter is peculiarly within the knowledge of the defendant. In relation to the defences in proposed subsections 115B(2),(3), (4) and (5), it is not clear to the committee how the relevant matter is peculiarly within the knowledge of the defendant. Proposed subsection 115B(2) establishes a defence where the individual was given authorisation to undertake the relevant conduct by the Commonwealth which means that the Commonwealth would also have knowledge of the relevant fact. The same is applicable for the defence in proposed subsection 115B(3) where the relevant fact is that the individual was authorised to provide the training via a written agreement with the Commonwealth. Proposed subsection 115B(4) provides a defence in which the relevant conduct was undertaken as the course of an individual's service in the armed forces, which is knowledge that would be available to a number of parties including the Commonwealth. For proposed subsection 115B(5), the defence relates to the individual's employment with the Commonwealth which appears to be knowledge that the Commonwealth would be privy to.

1.40 Although the committee acknowledges that while the Commonwealth is required to disprove the above matters rather than the defendant adducing evidence to prove the existence of the relevant authorisation or agreement, it is not apparent that the matters are peculiarly within the defendant's knowledge. It is also not apparent that it would be significantly more difficult or costly for the prosecution to establish the matters than for the defendant to establish them.

1.41 The committee's concerns in this regard are heightened due to the broad scope of the offence provisions. The offence in proposed section 115B covers conduct including 'military tactics, military techniques or military procedures' which is considerably broad and open to interpretation.

1.42 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to matters that appear not to be peculiarly within the knowledge of the defendant.

1.43 Proposed section 115E provides that the minister must cancel a foreign work authorisation granted to an individual if the minister reasonably believes, as a result of a change in circumstances, that the individual's performance of work or provision of training as specified in the authorisation would prejudice the security, defence or international relations of Australia (proposed paragraph 115E(1)(a)).59F^[28] Proposed subsection 115E(2) provides that the minister is not required to observe any requirements of the natural justice hearing rule in relation to cancelling a foreign work authorisation.

1.44 Procedural fairness is a fundamental common law right that ensures fair decision-making. Amongst other matters, it includes requiring that people who are adversely affected by a decision are given an adequate opportunity to put their case before the decision is made (known as the 'fair hearing rule'). The fair hearing rule includes not only the right of a person to contest any charges against them but also to test any evidence upon which any allegations are based. Where a bill limits or excludes the right to procedural fairness the committee expects the explanatory memorandum to the bill to address the nature and scope of the exclusion or limitation, and why it is considered necessary and appropriate to restrict a person's right to procedural fairness.

1.45 In this regard, the explanatory memorandum states that '[t]he effect of this subsection is to clearly set out that there is a clear statutory intention to override the common law duty to provide procedural fairness'.60F^[29]

The exclusion of the right to procedural fairness set out in section 115E also achieves the legitimate objective of ensuring the security, defence or international relations of Australia. Section 115E would only permit the Minister to cancel a foreign work authorisation where the Minister reasonably believes that the individual’s performance of work or provision of training would prejudice the security, defence or international relations of Australia. Further, a review process, especially where there has been a change in circumstance, has the potential to create undue delay in cancelling an authorisation. The result of any delay could have the potential to cause immeasurable and irreparable damage to Australia’s security, defence and international relations.61F^[30]

1.47 While noting this advice, it is unclear to the committee why a complete abrogation of procedural fairness is necessary for national security. It appears that it would be possible for the reasons for the decision to be disclosed where the minister's reasonable belief as to the individual's change in circumstances relates to considerations which are personal or unique to the person, rather than national security or international relations.

1.48 In addition, proposed section 115K makes provision for internal review of relevant decisions. However, proposed subsection 115K(7) provides that the minister is taken to have affirmed the reviewable decision if the minister does not give the applicant written notice of a decision to affirm, vary or revoke the reviewable decision within 90 days. This is concerning from a procedural fairness perspective as it appears that no substantive consideration would be given to a review of decisions where the 90-day time limit is exceeded. There also appear to be no safeguards to require the minister to reasonably attempt to substantively review the decision within the specified 90-day period to avoid this occurrence. The committee notes that there is nothing in the explanatory memorandum to justify why proposed subsection 115K(7) is necessary, nor does it explain whether the impact on the affected individual has been considered.

1.49 Further, proposed subsection 115M(1) provides that if the minister makes a relevant decision which requires reasons to be given in a notice, the notice must not disclose reasons which the minister reasonably believes the disclosure of which would prejudice Australian security, defence or international relations. The relevant decisions are those covered by proposed subsection 115J(5), a reviewable decision, and a decision under proposed section 115K to affirm, vary or revoke a reviewable decision. This includes decisions such as the granting and cancelling of foreign work authorisations, and the suspension of authorisations.

1.50 In light of the above, the committee request's the minister's advice as to:

^[12] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023, Scrutiny Digest 12 of 2023; [2023] AUSStaCSBSD 182.

^[13] Schedule 1, item 1, proposed section 115B. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[15] Proposed paragraph 115B(1)(b). A foreign work restricted individual is defined in proposed section 114 of the bill.

^[19] Proposed subparagraph 115(1)(d)(i). See proposed section 113 of the bill for the definition of the Defence and Strategic Goods List.

^[22] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

^[27] Schedule 1, item 1, proposed subsection 115E(2) and proposed section 115M. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(iii).

^[28] The minister must also cancel an authorisation if so requested by the individual, as per proposed paragraph 115E(1)(b).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Defence Amendment (Safeguarding Australia""'s Military Secrets) Bill 2023 [2023] AUSStaCSBSD 182 (18 October 2023)

Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023[12]

Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023^[12]