In 2022, there were reports of former Australian military pilots being approached by Chinese entities or delegates to train or advise Chinese military pilots. Photo: Royal Australian Air Force.
It’s a big month for the Parliamentary Joint Committee on Intelligence and Security (PJCIS), with multiple laws under review and its new advisory report on the bill safeguarding Australia’s military secrets.
The Defence Amendment was presented to Parliament last year following a government directive that’s believed to have been developed in the wake of a former US Marine Corps pilot’s arrest. Now an Australian citizen, Daniel Duggan is alleged to have trained Chinese military pilots in South Africa in 2010 and 2012.
Mr Duggan has rejected the charges and said he trained civilian pilots, but since October 2022 he has been held in Australian custody pending extradition to the US.
The new laws will require certain former Australian Defence Force members or Defence Australian public servants to obtain approval at the ministerial level before working for any foreign military or government entity. It will also require any Australian citizen or permanent resident training with a foreign country operating controlled military equipment and operational procedures to also obtain approval.
Exceptions apply for ”Five Eyes” member nations – New Zealand, Canada, the UK and the US.
The committee’s unanimous report recommended the bill pass and made four recommendations for the government to consider, including:
- Assessing current legislation and procedures and whether they sufficiently cover working or training for paramilitary organisations and militias by former defence personnel
- Providing the Minister for Defence with the ability to determine by legislative instrument classes or categories of non-former Defence members that are not required to apply for an authorisation – for example, in cases where a company has been approved to provide goods under the Defence Export Control (DEC) arrangements
- Assessing how existing legislation and procedures covering former National Intelligence Community officers and their work for foreign governments should be strengthened, and address the need for further legislation.
“Once passed, this bill will deal with the potential of former defence staff members revealing sensitive defence information and placing Australia’s national security at risk,” said Federal Labor MP and committee chair Peter Khalil.
“In addition it provides our allies with more confidence that securing sensitive military information is at the forefront of the Australian Government’s national security thinking.”
Last Thursday (14 March), the PJCIS also held a public hearing for its review of post-sentence terrorism orders, which Mr Khalil said received mixed evidence in submissions regarding its operation and implications.
Government and non-government representatives discussed the proposed reforms under Part 5.3 of the Criminal Code. They suggested the creation of four orders: control orders, preventative detention orders, continuing detention orders (CDO) and extended supervision orders (ESO).
Post-sentence orders can only be made in respect of people convicted of certain terrorist offences and who were, immediately before the order, imprisoned and serving a sentence for that conviction.
The hearing followed the publication of a review by the Independent National Security Legislation Monitor (INSLM) a year ago, comprising 15 recommendations.
Among them was for the power to abolish CDOs, changing the regimen for making ESOs, and the inclusion of rehabilitation and reintegration for the subjects of a post-sentence order coming back into the community.
Later this month, the INSLM will hold a public hearing in Canberra for its review of national secrecy offences in Part 5.6 of the Criminal Code.
Appearing before them will be the Human Rights Law Centre (HRLC), which believes the laws should be amended to encourage transparency and accountability.
In its submission to the monitor, it states there’s no public interest in the current laws as they undermine Australia’s democracy by criminalising whistleblowers and journalists.
The 13 recommendations provided include:
- Repealing lower-level secrecy offences, with administrative sanctions used instead for minor breaches
- Penalties to be reduced to levels which are necessary and proportionate
- Narrowing, and in some cases repealing entirely, secrecy offences that apply to third-party, non-Commonwealth officers
- Establishing pathways for the national intelligence whistleblowers to disclose information in the public interest.
HRLC senior lawyer Kieran Pender said there were compelling circumstances in which secrecy was used to protect Australia’s national security.
“… but current laws are silencing whistleblowers, journalists, public servants and civil society advocates in an unnecessary and disproportionate manner,” Mr Pender said.
“If adopted, our recommendations will shift the needle towards transparency, accountability and good governance in our laws, and ultimately improve national security.”
