Australia’s export controls are contained in legislation that includes the Customs Act 1901, the Defence Trade Controls Act 2012 (DTCA), Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 and Military End-Use provisions (section 112BA) and by sanctions. The Department of Foreign Affairs and Trade (DFAT) administers the implementation of sanctions, which restrict or prohibit the export of specified goods to particular countries or individuals or entities.
This article was written in June 2016 and includes a brief update on the 2016 changes to DTCA and an outline of the sanctions regime.
Controls on the supply of Defence and Dual Use Goods
The purpose of the Defence Trade Controls Act 2012 is to control the transfer of defence and strategic goods, software and technology in accordance with Australia’s international obligations. The Act includes provisions regulating:
brokering the supply of goods on the Defence and Strategic Goods (DSGL) List and related technology; and now
the intangible supply of technology relating to DSGL goods, such as supply by electronic means
Controls on the latter have been in place since 2 April 2016 following a twelve month implementation period. Goods that are in intangible form which would require a permit to export if they were in tangible form (i.e. if they were actual goods) now also require an export permit.
Some examples of intangible means are email, fax, telephone and providing access to training or electronic presentations that contain DSGL technology. The provisions apply across all sectors of industry, including training and research.
It’s important to remember too that the inclusion of controlled information in the repair and return of goods, or provision of a technical paper, specification, blueprint or even an email containing such information, sent overseas even if to a fellow employee or a client, is prohibited unless an export permit is first obtained. Importantly, it does not matter to what country the information is exported, including our allies.
The outcome is that a permit is also required to take controlled technology stored on a physical medium, such as on your laptop or a USB drive, outside of Australia. This includes scenarios where the information is sent by post or is carried by hand or in checked baggage.
A copy of the DSGL is available at https://www.legislation.gov.au/Details/F2015C00310.
The list is divided into two parts:
Part 1 is the Munitions (military goods) List.
Part 2 lists goods that are “dual use”, that is, the goods that may have been developed for commercial purposes but could also be used for military or WMD applications.
To establish whether a particular item is controlled, you need to first check the DGSL to determine if the goods themselves are listed, and then whether related materials, equipment, software or technology are also listed. There are some other exceptions, for example DSGL technology already in the public domain or what would be considered as basic research.
If the goods are listed on the DSGL, you must then check the technical specifications of your goods against the control thresholds in the DSGL. Commonly, this associated technology may also be controlled if it is 'required' for the 'development', 'production' or 'use' of the controlled good. For example, the DSGL lists computers that are designed to operate below ‐45 °C or above 85 °C. The DTCA only applies to the technology necessary for the computer to operate at these temperatures. Technology that does not influence this ability is not controlled.
US Export Goods
It must also be noted that if the export contains any tangible (e.g. parts) or intangible goods (e.g. software) that are of USA origin and required an export permit from USA, then an export from Australia may require export permits from both Australia and USA, Export permits for Australian goods are obtained through the Defence Export Control Office (DECO), but they cannot provide export permits for controlled US origin components or software.
If you get it wrong? Significant penalties (10 years prison and/or $450,000) can apply, and if the goods include components etc of US origin then significant penalties may also be incurred from US.
The Department of Foreign Affairs and Trade (DFAT) administers the implementation of sanctions which restrict or prohibit the export of specified goods and/or services to particular countries AND/OR designated individuals and entities. Sanctions are distinct from DSGL. Permits must be obtained from DFAT prior to export.
The DFAT Sanction’s webpage is at https://sanctions.dfat.gov.au/
It should be noted that these controls apply to export by both individuals and corporations and whether or not the goods or services are supplied from outside Australia.
If goods to be exported to a country subject to sanctions appear also in the DSGL, a separate permission is also required from Defence.