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Defence Trade Controls Act 2012

Defence Trade Controls Act 2012

On 13 November 2012, the Defence Trade Controls Act 2012 (the Act) received Royal Assent, putting in place additional measures to control the intangible transfer and brokering of defence and strategic goods and technologies bringing Australia in to line with international best practice.

In order to strengthen Australia’s export controls, the Act includes provisions regulating:

• the intangible supply of Defence and Strategic Goods List (DSGL) goods and technologies, such as supply by electronic means; and

• brokering the supply of DSGL goods and technology.

These new provisions are aimed at stopping goods and technologies that can be used in conventional, chemical, biological, nuclear and weapons of mass destruction programs from getting into the wrong hands. The provisions apply equally to the industry, university and research sectors.

It is important to note that the strengthened export control provisions in the Act are currently not in force, as they are contingent on a two-year transition period (May 2103-May 2015) under the oversight of a Steering Group mandated to consider and examine the effects of the new controls across all sectors and make recommendations to Government on potential changes to the strengthened export controls.

At the end of the two-year transition period individuals or organisations undertaking the intangible supply or brokering of DSGL-listed technology will need to seek permission to supply controlled technology to an entity outside of Australia.  

The offence provisions will not be applied retrospectively.

The Strengthened Export Controls Steering Group is chaired by Australia’s Chief Scientist, Professor Ian Chubb AC, and is made up of senior representatives from industry, research and government to review the Act’s operation and implementation.

The Steering Group is in place to ensure the new controls strike an appropriate balance between Australia’s international obligations and national security requirements, while not unnecessarily restricting trade, research and international collaboration or reducing the international competitiveness of the research sector.

Established in December 2012, the Steering Group is currently examining ways to reduce the regulatory burden associated with the new export controls by developing and testing a number of risk based approaches through a series of diverse pilot programs.  These approaches include:

  • expedited licences for lower-risk items that are destined for lower-risk destinations;
  • extending maximum licence duration from two years to five years or the life of a project;
  • exempting contractors who are supporting Australian Government business (eg Defence contractors supporting ADF operations) from needing to obtain export licences; and
  • greater self-assessment by exporters as to the control-status of their items, through creation of an online tool.

The pilots are also reviewing the feasibility of organisational frameworks that determine thresholds for technology assessments beyond which an organisation will need to consult with Defence and, if required, seek a permit.

 The Defence Trade Controls Act 2012 is available on the Comlaw website.