Defence Amendment (Safeguarding Australia's Military Secrets) Bill 2023 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 11 (18 January 2024)

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023^[75]

Purpose	The Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 (the bill) seeks to amend 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

Procedural fairness^[76]

2.2 Proposed section 115E provides that the Minister for Defence (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)).^[77] 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.

2.3 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.

2.4 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.

2.5 In Scrutiny Digest 12 of 2023 the committee sought the minister’s advice as to:

Minister for Defence response^[78]

2.6 The minister responded to the committee’s concerns in a letter on 8 December 2023.

2.7 In relation to proposed section 115E, the minister advised that written reasons for cancellations could be provided where the reasons relate to personal or unique factors of the individual.

2.8 Further, the minister advised that proposed subsection 115K(7) is a standard deeming provision that would ensure that review is not unreasonably delayed by the inaction of a decision maker. The minister noted that such provisions are ‘commonly used to ensure that an affected individual’s review rights arise after an appropriate period of time’, and provided an example of a similar provision in the Freedom of Information Act 1982.

Committee comment

2.9 The committee notes the advice provided by the minister in relation to the cancellation of foreign work authorisations made under proposed section 115E. However, the minister’s response does not address the impact of proposed subsection 115M(1) which prevents the minister from disclosing reasons for cancellations which would prejudice Australian security, defence or international relations. When reasons for a cancellation under proposed section 115E are withheld from the applicant as a result of proposed subsection 115M(1), the committee considers that in circumstances where such reasons may be personal to the applicant they may be suitable to disclose without prejudicing national security.

2.10 In addition, while noting the minister’s advice that proposed subsection 115K(7) will limit the length of time under which a review decision may be pending, the minister has not advised why it is necessary and appropriate for a lapsed review to result in the original decision being affirmed. In most, if not all, cases affirming the original decision would mean that a cancellation or refusal decision is upheld, contrary to the applicant’s wishes. The committee’s view is that it would be more appropriate for review decisions which lapse after the specified timeframe to set aside the original decision, which would require decision makers to make timely decisions.

2.11 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed subsection 115M(1) and proposed subsection 115K(7).

^[75] 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 1 of 2024; [2024] AUSStaCSBSD 11.

^[76] 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)(i).

^[77] The minister must also cancel an authorisation if so requested by the individual, as per proposed paragraph 115E(1)(b).

^[78] The minister responded to the committee's comments in a letter dated 8 December 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 1 of 2024).

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