Part 1 - Modernising Defence’s legislative framework to meet Australia’s strategic requirements

What you need to know:

• The Department of Defence is embarking on a legislative reform project, aimed at modernising the Defence Act 1903 (Cth) (Defence Act) and related legislation.
• Defence is exploring three key initiatives to enhance the legislative framework’s ability to address the impacts of strategic competition and uncertainty, the changing character of warfare, new and emerging technologies, domestic regulation and globalisation. These initiatives are: (i) supporting the full range of military activities and capabilities required to defend Australia and its national interests, (ii) improving our interoperability with international allies and partners, and (iii) enhancing the security of our military capabilities.
• Public consultation on the proposed legislative reforms closed on 21 April 2023. After considering the submissions received, it is expected that the government will prepare an exposure draft of the legislative amendments for further public comment before introducing a Bill to parliament later this year.

What you need to do:

• Defence officials and industry should monitor the progress of the proposed reforms, including any Bill which is introduced to parliament later in the year. Given the change in strategic circumstances since the legislation was introduced, there are likely to be substantial legislative amendments proposed which aim to equip Defence as a modern, agile and operationally effective war-fighting enterprise.
• Aldermane will follow the Defence legislation reform project and assist you to understand specific legislative amendments in further updates throughout this series.

Detailed Insights:

The context behind Defence’s legislative reform project

The Defence Act has not been significantly revised since its commencement 120 years ago. The security and defence context of the original legislation is markedly different from that of today, including the capabilities and technology deployed by militaries, and the complexity of war. Recently, Defence determined that a range of factors were impacting the effectiveness of the legislation, including:

• Strategic competition: increasingly facing challenges to our national interests and regional security and stability, including a complex strategic environment of competition and coercion.
• Strategic uncertainty: reductions in warning times ahead of any armed conflict.
• Increasing domestic regulation: increased regulation at all level of governments which, in some instances, has unforeseen consequences and constraints on Defence activities and capabilities.
• New and emerging technologies: increasingly required to use and defend against new technologies that require integration across a range of platforms and assets.
• Changing character of warfare: evolution from traditional kinetic combat to the expansion of activities in the cyber, information and space domains.
• Globalisation: reliance on global networks and supply chains used to maintain critical capabilities, making it essential to protect these networks and ensure appropriate interoperability with foreign partners.

The Department of Defence is undertaking a significant legislative reform project to address these changes in the strategic environment and to ensure that Australia keeps pace with advanced and emerging capabilities and technologies, and responds to current and future challenges.

Key areas of reform

Defence is considering three key initiatives to guide these legislative reforms, with the goal of making the framework future-focused, agile, and scalable:

1. The first initiative seeks to ensure that the legal framework supports the full range of military activities and capabilities required to defend Australia and its national interests. The intent is to:
2. protect and defend Australia in situations below the threshold of armed conflict, where appropriate, in addition to during armed conflicts;
3. allow Defence to train in Australia in as close to a simulation of real-life operations environment as possible;
4. enable Defence to rapidly innovate, develop, test and deploy new technologies and capabilities quickly (including cyber and electronic effects, artificial intelligence, and quantum technologies), and to access and share data/information appropriately to support Defence activities; and
5. clarify the application of State and Territory laws to critical Defence activities.
6. The second initiative aims to design the legal framework for interoperability with international allies and partners. The intent is to support Australia's ability to engage with and host foreign military forces, quickly and appropriately share information with international allies and partners, and enable Defence and its partners to achieve a far more effective warfighting capability collectively than they could do individually.
7. The third initiative seeks to improve the security of Australia’s military capabilities. The intent is to broaden the focus from the physical security of defence premises to the proactive management of the security of both tangible and intangible (eg, cyber and information) defence capabilities, as well as to defence industry participants and international partners in Australia.

What to expect

On 9 March 2023, Defence invited the public to provide submissions on its Consultation Paper. The consultation period closed on 21 April 2023, with submissions now being reviewed by Defence.

Given the breadth and ambition of the reform initiatives, it is expected that Defence will be consulting internal stakeholders, other Commonwealth agencies, relevant State and Territory government bodies, as well as defence industry participants (internationally and domestic). Accordingly, it may take the Commonwealth some time to obtain and consider stakeholder feedback, including public submissions, and prepare the necessary legislative amendments. Defence is also undertaking this project at the same time as implementing the outcomes of the Defence Strategic Review, which will require whole-of-government effort, significant financial commitment, and major changes to Defence’s projects and activities.

The Assistant Minister for Defence, Matt Thistlethwaite, has stated that the government will prepare an exposure draft of the legislative amendments for further public comment with the aim of then introducing a Bill to parliament before the end of year.

Further Information

Aldermane will follow the Defence Act reforms and issue alerts in this series as more information becomes available. In the meantime, there is further details available on the Department of Defence website, where you can find the Consultation Paper published in March 2023.

If you have any questions, or would like to specific advice on Defence’s legislative framework, please feel free to contact us.

Authors:

Rory Alexander, Principal

Anjana Banerjee, Associate

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