Defence export controls may potentially impact you if your research involves collaboration outside Australia. The export of controlled physical or tangible supply of goods and technologies listed on the Defence and Strategic Goods List (DSGL) is already regulated under the Customs (Prohibited Exports) Regulation 1958 under Clause 13E and requires a permit. A permit is also required to take controlled technology stored on a device such as USB, computer or hard drive et cetera.
The Defence Trade Controls Act 2012 and subsequent Defence Trade Controls Amendment Bill 2015 (DTC Act) came into force on 2 April 2016. The Act controls new intangibles (transmission by non-physical means) goods, software and technology to a person outside Australia. The DTC Act expands the existing defence export controls to cover the intangible supply, brokering and publication of controlled software or technology relating to Australia's regulated DSGL. Non-compliance with the laws can incur criminal penalties for individuals breaching them.
Defence Trade Controls Act 2012 REVIEW – call for your contribution to assist the drafting of the University’s Response
The DTCA has now been operating for some time. In line with the original legislation an independent review into the operation of the Defence Trade Controls Act 2012 (Cth) has commenced and the University has been invited to make a submission. Interested staff are invited to email your written comments on the Review by COB on 20th May 2018. Your contributions will assist the drafting of the University’s submission to the Review. The Review will examine:
- whether the Act is fit for purpose;
- whether there are any gaps in the Act’s controls;
- whether any unintended consequences are resulting from the Act’s controls; and
- any other matters considered relevant
For more information go to the Commonwealth Defence Trade Controls web sites below:
Review Terms of Reference
Amendments to regulation 13E of the Customs (Prohibited Exports) Regulations 1958
Separate to the review of the DTCA. Amendments have been made to regulation 13E of the Customs (Prohibited Exports) Regulations 1958 came into force on 21 April 2018. These amendments brings the provisions for physical exports under regulation 13E into line with the more modern regulatory powers contained in the Defence Trade Controls Act 2012which covers intangible exports.
Broadly, the key updates include:
- an exception to export goods constituting controlled technology (e.g. printed blueprints) or containing controlled technology (e.g. blueprints on a USB) for personal use; this avoids researchers having to modify information held on laptops when they travel.
- an exception to export goods constituting or containing controlled technology back to where it was imported from;
- new ministerial powers to revoke a permit where the export would prejudice the security, defence or international relations of Australia;
- the inclusion of specific criteria for decisions made under regulation 13E;
- a requirement to disclose to applicants the reasons for specific decisions; and
- the addition of both internal and external mechanisms to review decisions.
Please refer to the following Defence Expert Control guides:
Defence Strategic Goods List (DSGL)
The DSGL is "the list that specifies the goods, software or technology that is regulated when exported, suppled, brokered or published and is compiled of military and commercial goods and technologies that Australia regulates." Items listed on the DGSL can be exempted under certain circumstances. These are
- "In the public domain";
- "basic scientific research"
- "the minimum necessary information for patent applications" or
- "medical equipment specially designed for medical end-use that incorporates an item controlled in Part 2 of the DSGL
Supply of DSGL Items (Military or Dual Use Technology)
The DSGL is split into the Munitions List (Part 1 - tangible) and the Dual-Use list (Part 2 - intangible). Items listed in Part 1 will require an export permit if you intend to export these outside of Australia.
Part 2 covers goods and technologies developed for commercial needs but may be used as part of a military program, for the development or production of a military system, or weapons of mass destruction. You may require a permit to transmit DSGL technology or software by electronic means from Australia to another person outside of Australia.
Intangible supply is when a person in Australia provides DSGL technology in electronic form to another person outside of Australia. It includes providing access to DSGL technology. Supply must occur across Supply of DSGL goods, technologies and software wholly outside Australia may be subject to other countries' export control regulations.
Publication of Controlled Military or Dual Use Technology
Publishing controlled military technology (Part 1 of DSGL) will require approval by Minister of Defence or her delegate. This includes any publication of military DSGL technology within or outside Australia.
Publishing controlled dual-use technology (Part 2 of DSGL) does not require approval.
Exemptions to the Offence to Supply DSGL Technology
- Verbal Supply such as telephone conversations, video conferences.
- Pre-publication supply
- Supply to government and security agency employees
- Supply by government and security agency employee
Two acts to be aware of in the context of research activities are the Autonomous Sanctions Act 2011 (Cth) and regulations and the Charter of the United National Act
Supporting the DTCA at the Australian National University
The Research Services Division currently supports researchers to identify the likelihood of their research activity being exposed to the DTC Act. A number of DTCA Technical Coordinators (Staff only content) have been identified in key subject matter areas where there may be exposure to the legislation and they will be able to assist individual researchers in assessing the impact on research projects and activities within schools and centres.
Process and Assessment
Contact your local DTCA Technical Coordinator in the first instance to assist you determine the potential exposure of your research activity to the DTC Act. You should also undertake a self-assessment of whether goods, software or technology arising from your research project are listed on the DSGL, and whether the way you will be supplying, brokering or publishing is controlled by the DTC Act by using the DEC online tools:
- DEC Activity Assessment Questionnaire. Through a series of Yes/No style questions you can self-assess if your activity is subject to Export Controls; and
- DSGL Search to search by key word to determine if Goods, Software or Technology are listed in the DSGL and therefore potentially controlled.
If unable to self-assess whether the items are listed on the DSGL, or the exporting, supplying, publishing or brokering activity is controlled, or if there is still uncertainty or personal concern, you can submit an Application for DSGL/Activity Assessment to DEC via the Research Services Division and following the Online DSGL Tool.
Please contact Maria Davern, Research Services Division (email@example.com) if you want to export any goods, or supply or broker a good or technology in electronic form rather than in physical listed in the DSGL.