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Defence Trade Controls Act


About the Act

The Defence Trade Controls Act 2012 (DTCA) puts new measures in place to strengthen the controls for the intangible supply and publication of Defence and Strategic Goods List (DSGL) technologies and the brokering of DSGL goods and technology in order to bring Australia in line with international best practice. These export control measures came into force on 2 April 2016 and permits for these activities are now required.

The Department of Defence is responsible for administering Australia's exports approvals for defence and strategic goods. The Minister for Defence has delegated the authority to issue export licences to the Defence Export Control Office (DEC). DEC is responsible for reviewing export licence applications and granting export permits and licences.

The purpose of the DTCA is not to be an obstacle to innovation, research collaboration or the transfer of research information but rather to protect the nation's safety by stopping sensitive goods and technology from falling into the wrong hands. To this end, the DTCA requires permission to be sought from DEC before the intangible transfer of controlled goods and technology takes place.

It therefore becomes important for researchers and research staff at Macquarie University to be mindful of their obligations under the DTCA and the control status and permit requirements of items and technology listed under the DSGL.

Click on the following to learn more about the DTCA. 

Intangible Export of DSGL Technology

Activities regulated under the DTCA

The DTCA regulates the following activities (known as the "controlled activities") in relation to the items listed in the DSGL (known as the "controlled items"). The DSGL contains a list of military items (Part 1 - Munitions list) and dual use items (Part 2 - Dual-Use list) which are items used for commercial and research purposes but can be used in military, nuclear, chemical and biological programs. 

      1.     Intangible supply

      Intangible supply is when a person in Australia provides controlled technology in a non-physical form (i.e. electronically) to another person outside Australia. Some examples include supply via email, fax or providing a password access to electronic files.

      Generally, a permit from DEC will be required to intangibly supply controlled goods and technology. Supply activities which are completely inside or outside Australia are not controlled.

      Key exceptions to the controls include instances where the supply is a pre-publication activity (e.g. emailing an article to an overseas journal), or where the supply is made orally in some circumstances (except for when it is for a military end-use or for use in a 'Weapons of Mass Destruction' program, or where the oral communication provides access to DSGL technology e.g. verbally telling a person located overseas the username and password to a database which contains DSGL technology)

      FAQs on intangible supply of DSGL technology can be found here on the DEC website.

      2.     Publication

      Publication under the DTCA occurs when controlled military technology (i.e. those listed in Part 1 of the DSGL) is placed in the public domain by publishing it on the internet, to the public or to a section of the public.

      Under such circumstances, a permit from DEC will be required to put such military technology in the public domain. This applies to anyone located in Australia, or an Australian citizen or resident located outside Australia.

      FAQs on the publication of DSGL technology can be found here on the DEC website.

      3.     Brokering

      Brokering is when a person or organisation acts as an agent or intermediary to arrange the transfer of controlled goods or technology between two places located outside Australia and receives money or non-cash benefit, or advances their political, religious or ideological cause for arranging the supply.

      A permit from DEC will be required for the brokering of Part 1 DSGL goods, software or technology.

      FAQs on the brokering of DSGL goods and technology can be found here on the DEC website.

To help individuals and our researchers determine whether their research activity falls under the types of activities regulated by the DTCA, an Activity Questionnaire provided by DEC can be used as a self-assessment tool to assist in determining if the export, supply, brokering or publishing activity is controlled.

In summary, the following table below outlines the permit requirements under the DTCA:

 

Controlled military technology

(Part 1 of the DSGL)

Controlled dual-use technology

(Part 2 of the DSGL)

Supply

Permit required

Permit required

(Note: Exceptions apply e.g. most verbal supply and pre-publication supply)

Publishing

Approval by Minister for Defence or delegate required

No approval required*

Brokering

Permit required

No permit required (unless for a WMD or military end-use)*

*In specific cases, the Minister for Defence may issue a notice to prohibit a dual-use publication or brokering activity if they reasonably believe that it would prejudice Australia's security or international obligations.

DSGL goods and technology

The DSGL may capture technology that is important to our research here at Macquarie University. It is therefore important for researchers to consider their use of DSGL items in the context of their research activities, especially when collaborating with parties outside of Australia.

Part 1 of the DSGL contains defence and related goods - those goods and technologies designed or adapted for use by armed forces or goods that are inherently lethal. These goods include:

  1. Military goods - those goods or technology that is designed or adapted for military purposes including parts and accessories thereof; and
  2. Non Military Lethal Goods - that equipment that is inherently lethal, incapacitating or destructive.

Part 2 of the DSGL covers dual-use items and include equipment and technologies developed to meet commercial needs but which may be used either as military components or for the development or production of military systems or weapons of mass destruction.

Researchers who work with materials listed in the following categories under Part 2 of the DSGL will need to consider their use of these materials in light of their research activities:

  • Nuclear materials;
  • Materials, chemicals, micro-organisms and toxins;
  • Materials processing;
  • Electronics
  • Computers;
  • Telecommunications and information security;
  • Sensors and lasers;
  • Navigation and avionics;
  • Marine;
  • Aerospace and propulsion

Each category listed above is divided into further subcategories under the DSGL.

A quick reference guide to the DSGL can be found here while the full list as contained in the legislative instrument can be found here.

DEC has also provided a DSGL search tool that assists individuals in determining if a particular good, software or technology is listed on the DSGL.

We encourage you to use the DSGL tool and to send a copy of the outcome report to defencetradecontrols@mq.edu.au.

Exemptions may apply for the intangible transfer of technology

Controls on the intangible transfer of technology do not apply to information that has been lawfully placed in the public domain" or to "basic scientific research". Those phrases are defined as follows in the DSGL:

  • "Public domain" - means "...technology or software which has been made available without restrictions upon its further dissemination (copyright restrictions do not remove "technology" or "software" from being "in the public domain"); and
  • "Basic scientific research" - which means "...experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective".

Offence Provisions

The DTCA creates criminal offences for the intangible supply (including emails, scans and faxes), publication (including journal articles, conference papers with no access restrictions and blog posts) and brokering of goods and technologies listed on the DSGL without a permit. The offences have been drafted to specifically include individuals, such as researchers and scientists at public universities, or research staff and others involved in the publication of research or the exchange and communication of research with people outside Australia.

Offence provisions for individuals include penalties of up to $425,000 or imprisonment for 10 years, or both.

The criminal offence provisions will not be applied retrospectively and are effective as of 2 April 2016. Permits are not required for any activities that occur before this date, however individuals must apply for permits for any activities that are affected after this date by contacting defencetradecontrols@mq.edu.au in the first instance.

NOTE: Tangible Export of DSGL Technology

The physical or tangible export of Part 1 (Munitions) DSGL technologies and Part 2 (dual-use) DSGL technology (e.g. blueprint, plans, technical data, physical hardware and equipment, hard copy files, CD, USB drive and laptop) from Australia is already regulated by the Customs Act 1901 and Regulation 13E of the Customs (Prohibited Exports) Regulations 1958. This also includes scenarios where a media storage device is carried in hand-carry or checked in luggage or sent via post from Australia to a place outside of Australia and includes goods sent for personal use, sale, demonstration, repair or return to a manufacturer.

Researchers who wish to tangibly export any controlled technology have an existing obligation to ensure that they have been granted a licence or permission from the Minister for Defence or authorised person before a transaction takes place. Further information on this can be found here.

Training and Upcoming Workshops

Over the past year, the Research Office at Macquarie University has been conducting workshops for Faculties and Departments across the University to raise awareness of the DTCA and our obligations as an organisation and as individuals under the DTCA.

We encourage all staff who believe they may be affected by the DTCA to complete an online version of the workshop which is available to both staff and students via iLearn (if you have not already attended a face-to-face DTCA workshop). There will also be a short quiz at the end to test your knowledge of the Act.

Contact and Support

If you would like further guidance or if you require assistance to determine whether you need a permit, please email defencetradecontrols@mq.edu.au.

Useful Resources and Links

Export Controls Policy and Procedure

Frequently Used Resources

Other DEC Resources

Australian General Export Licences (AUSGELs)
 
For access to the following AUSGELs, please contact defencetradecontrols@mq.edu.au.

Under Development

  • DTC Forms

Last updated: 16 November 2016