Ex-ADF personnel often have highly developed skills and experience that are in high demand overseas. Work opportunities with overseas governments or enterprises can be both interesting and lucrative. It has now been two years since the Safeguarding Australia’s Military Secrets (SAMS) regime came into effect, requiring former defence personnel to obtain a foreign work authorisation (FWA) before they start providing services to foreign military, governments or government enterprises.
The AFP has laid its first ever charge for a breach of these FWA requirements. While the conviction represents a straightforward breach of the SAMS regime, individuals and if relevant, their employers should be aware of how the requirements can affect their business.
What are the SAMS foreign work authorisation requirements?
We have previously outlined how the SAMS regime operates and the offences that personnel should be aware of.
In short, the new regime makes it an offence where:
former members of the Australian Defence Force (ADF), the Australian Submarine Agency or Defence Australian Public Servants (restricted individuals) work for a foreign military, government body or public enterprise; or
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 Defence has screened the proposed service and provided a FWA to the individual.
The primary compliance obligation sits with the individual that will provide the service. But services contracts may be entered into at a corporate level. Both foreign and Australian companies need to review whether their Australian employees will provide the services and will need authorisation from the Department of Defence to conduct work or training with government-tied overseas entities. If any employees are already providing services captured by the SAMS regime, they must cease work immediately until they have applied for and received the necessary FWA.
SAMS enforcement since 2024: the first foreign work authorisation charge
From 2024-2025, the Department of Defence finalised 3,500 FWA applications. Cowell Clarke has been involved in several major batches of FWA applications with Defence.
In April 2026, an Adelaide ADF reservist became the first person charged with failure to obtain an FWA. The individual was a restricted individual due to his ADF reservist status. The reservist travelled to Ukraine in May 2025 to serve as a drone operator for the Ukrainian Armed Forces. He has been charged with the offence as a former ADF member, of failing to apply for and receive a FWA approving his work for the Ukrainian Armed Forces.
Do you or your employees need a foreign work authorisation?
Individuals or businesses may be tempted to think that the SAMS regime will not apply to their work with overseas enterprises. Sometimes, it’s obvious that the SAMS regime will apply. But sometimes it’s not so obvious that a FWA is required.
The FWA requirements apply broadly. It may not be immediately apparent whether a foreign client is a government body or public enterprise. Due diligence is therefore essential. We have previously written about the steps to identify where that is the case. If you are a restricted individual or your business employs restricted individuals, providing even general business consulting to a foreign client may require FWAs for each restricted individual involved.
For employers, an assessment of the FWA requirement will need to be undertaken for each employee working with a particular client. Different timeframes apply for each role worked in Defence. The requirement for an FWA will therefore depend on each employee’s work history and involvement in a project or business relationship. It may sometimes be unclear whether an FWA is required, or if so, what the is the scope of the FWA required.
This can be a nuanced and legally complex exercise. Restricted individuals or their employers should seek legal advice before the work starts.
If you are concerned that you or your employees may require a FWA, contact Brett Cowell in our Defence 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.