Export Controls Compliance
Australia’s export control system places restrictions on the export of a range a defence and strategic goods and technology. The current export regime covers the export of physical goods and technology but is being expanded to include intangible transfers.
The Defence and Strategic Goods List
The Defence and Strategic Goods List (DSGL) includes equipment, assemblies and components, associated test, inspection and production equipment, materials, software and technology. The DSGL is divided into two parts:
- Defence and related goods – those goods designed or adapted for use by armed forces or goods that are inherently lethal.
- Dual-use goods – those goods comprising equipment and technology 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.
The DSGL contains exemptions relating to technology or software that is in the public domain and to basic scientific research.
Export of tangible goods
Under the Customs Act 1901 (Cth), tangible goods included in the DSGL may not be exported from Australia unless a licence or permission has been granted by the Minister for Defence, or an authorised person, and that licence or permission is produced to a Collector of Customs before exportation.
UNSW is registered as a client with the Australian Department of Defence under the Defence Export Control System (DECS) for the purpose of applying for permission or a licence to export tangible goods on the DSGL.
UNSW staff intending to export goods that may be on the DSGL should, in the first instance, consult with the Director, Research Ethics and Compliance Support. All applications for a licence or permission to export goods on the DSGL must be approved by the Deputy Vice-Chancellor (Research) prior to submission to DGSL. DECO application forms can be viewed here.
Export of intangible goods
The expected amendment to the Defence Trade Controls Act 2012 (DTC Act) has been passed by Parliament. Its provisions come into force on 2 April 2016, giving universities and research institutes a twelve-month period to prepare for its effect. The amended Act introduces new strengthened export controls to regulate the:
- intangible supply;
- brokering; and
- publication of controlled goods and technology.
Permits are not currently required for these activities, but will be required when the new export control measures come into force.
What is 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.
A permit will be required to intangibly supply controlled goods or technology. The focus of intangible controls is on supply activities which cross Australian borders. Activities occurring completely inside or outside Australia are not controlled.
What is Brokering?
Brokering occurs when a person, acting as an agent or intermediary, arranges the transfer of controlled items between two or more persons located outside Australia, and receives a benefit. Benefits include money or non-cash payments for the brokering activity, or if the brokering activity advances their political, religious or ideological cause.
A permit will be required to broker controlled goods and technology.These controls apply to anyone located in Australia, or an Australian citizen or permanent resident located outside Australia.
Activities such as intra-company transfers, freight forwarding, providing financial services, insurance, reinsurance, promotion or advertising are not intended to be captured under the Act’s brokering controls.
Publication in the Act includes publishing on the internet, to the public or to a section of the public. Once controlled military technology is published in the public domain, it is no longer possible to regulate who has access to it. Publishing controlled military technology can put sensitive and potentially dangerous information into the wrong hands, with limited prospect of regulating that information.
A permit will be required to put controlled military technology in the public domain.
Any person undertaking this activity in Australia as well as ‘Australian citizen’ or ‘resident of Australia’ located overseas may need to seek a permit from DECO.
More information on the above regimes can be found at the Defence Export Control Office (DECO) website.
Links to Resources:
Dual Use Research of Concern. National Institutes of Health, 2014.
Impact of Export Controls. Australian Trade Commission, 2014.