As of 7 August 2024 the Safeguarding Australia’s Military Secrets amendments (SAMS) came into effect. Both foreign and Australian companies need to review whether their Australian employees need authorization from the Department of Defense to conduct work or training with government-tied overseas entities. If any employees are captured by the SAMS regime, they must cease work immediately until they have received the necessary approval, in the form of a Foreign Work Approval (FWA).
We have previously outlined how the SAMS regime operates and the offences that companies should be aware of.
In short, the new regime makes it an offence where:
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former members of the Australian Defense Force (ADF), the Australian Submarine Agency or Defence Australian Public Servants work for a foreign military, government body or public enterprise; or
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Australian citizens or permanent residents provide training to a foreign military or government body relating to certain prescribed lethal goods or military tactics, techniques or procedures,
unless the Department of Defense has screened the proposed service and provided a FWA to the individual.
Companies employing Australians should be reviewing the following:
Are any of your employees restricted from performing certain work?
Any Australian employees, regardless of the type of work they are currently providing, may require an FWA if they have previously:
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Been a member of the ADF, or the Australian Submarine Agency; or
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Worked in the Department of Defense as a public servant.
(“restricted individuals”)
If so, whether they are still captured varies depending on the defence role or function they performed. For example, a naval medical officer will only require an FWA for 1 year after ceasing that employment, whereas a naval intelligence officer needs an FWA for 10 years following their employment.
Even if an employee doesn’t fit into the above criteria, they may still require an FWA depending on their responsibilities and duties as an employee.
What sort of tasks and projects are they currently engaged on?
Restricted individuals need an FWA for any form of “work” (not just defence work) in any capacity provided to a foreign country government or public body, whether as a volunteer or paid. This includes where your company has a contract to provide services to a foreign government and you engage restricted individuals on that contract.
Other Australian citizens or permanent residents have more limited restrictions. These individuals will only need an FWA if they are providing any kind of ‘training’ (again, even as a volunteer) in relation to prescribed military or inherently lethal goods or military procedures/tactics.
Do their tasks or projects relate to any foreign-government connected entities?
Where someone is a restricted individual performing work or an Australian citizen/resident providing training, they cannot be engaged for or on behalf of certain entities. Those entities are:
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Government bodies;
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Government military organizations; or
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Public enterprises.
All business relationships with foreign companies therefore warrant scrutiny- even some private companies may be ‘public enterprises’. Relationships should be scrutinized for ties to any government other than Australia’s Five Eyes partners (Canada, UK, the USA or New Zealand), which are exempt.
The complexity and scope of review that these new requirements impose on companies may be immense. Cowell Clarke, in cooperation with our strategic software solutions partner, Verimus, has developed an intuitive digital solution that streamlines this process and automates the assessment of FWA requirements for employees. If you require any assistance in determining whether the SAMS regime captures your employees, please contact our Defense team.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.