Introduction
On 27 March 2024, the Australian Parliament enacted two significant legislative reforms: the Safeguarding Australia’s Military Secrets (SAMS) Act 2024 and the Defence Trade Controls (DTC) Amendment Act 2024. These laws are central to Australia's implementation of the AUKUS partnership and have substantial implications for companies employing former defence personnel or dealing in defence-related goods, services, or dual-use technologies.
SAMS Act 2024
The SAMS Act introduces a regulatory framework requiring individuals to obtain a Foreign Work Authorisation before engaging in certain work or training activities for foreign military organisations, governments, or government bodies. This applies to:
- Former Australian Defence Force (ADF) members, Australian Submarine Agency personnel, and Department of Defence staff (including public servants and full-time reservists).
- All Australian citizens and permanent residents providing training related to Defence and Strategic Goods List (DSGL) items or military tactics.
Importantly, the Act applies regardless of whether the work involves Australian military secrets or sensitive information.
Key Provisions:
- Criminal Offences: Working without authorisation can result in up to 20 years’ imprisonment; breaching authorisation conditions carries a penalty of up to 5 years.
- Application Process: Individuals must apply via the MADE portal, with an advertised minimum processing time of 60 business days. Priority processing is available.
- Scope of "Government Body": Includes public enterprises under foreign government control (whether formal or informal control) and may include national airlines, utilities, universities, and think tanks.
- Exemptions: Work involving the UK, US, Canada, or New Zealand is excluded. Additional exemptions apply based on the time elapsed since Defence employment and other criteria.
Company Obligations:
- Identify and inform former ADF or Defence civilians of their obligations.
- Ensure individuals working on foreign programs obtain the necessary authorisations.
- Support individuals in navigating the permit application process.
DTC Amendment Act 2024
Effective from 1 March 2025, the amended DTC Act expands Australia's export control regime. It governs the supply of DSGL-listed military and dual-use goods, technology, and services to foreign persons, both within and outside Australia.
Key Offences Introduced:
- Section 10: Supplying DSGL technology to non-exempt foreign persons outside Australia.
- Section 10A (new): Supplying DSGL technology to non-exempt foreign persons within Australia.
- Section 10B (new): Re-exporting sensitive DSGL goods or technology previously exported from Australia.
- Section 10C (new): Providing DSGL-related services to foreign nationals outside Australia.
Penalties include up to 10 years' imprisonment or fines of 2,500 penalty units.
Notable Changes:
- In-Country Transfers: For the first time, internal transfers of DSGL technology within Australia to foreign nationals (including employees) may require permits.
- Exemptions:
- Transfers to UK or US recipients in those countries.
- Transfers involving fundamental research.
- Transfers to security-cleared individuals (NV1 or equivalent).
- Transfers to employees or entities from countries on the Foreign Countries List.
- "Build-to-print" transfers where the recipient cannot reproduce the full DSGL item.
- Services provided to Five Eyes countries (Australia, NZ, US, UK, Canada).
Interaction with SAMS Act:
Goods and services provided under a valid SAMS Foreign Work Authorisation are exempt from certain DTC offences (sections 10A and 10C).
Company Compliance Steps:
- Audit operations for DSGL-related goods and services.
- Assess workforce demographics to identify internal transfer risks.
- Determine if export licences are needed for internal or re-export scenarios.
- Review and update compliance procedures accordingly.
Download a full summary of the Safeguarding Australia's Military Secrets (SAMS) Act 2024 and Defence Trade Controls (DTC) Act 2024
