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Publication of Export Controlled Technology

Publication is when Defence and Strategic Goods List (DSGL) Technology - 'DSGL technology' - is made available to the public or to a section of the public via the internet or otherwise. Publication controls apply to anyone in 'Australia', or an Australian citizen or resident or Australian organisation located anywhere in the world.

The publication of Part 1 (Munitions List) DSGL technology is regulated and requires approval from Defence Export Controls (DEC) before publication can occur. The publication of Part 2 (Dual-Use List) DSGL technology is not regulated; no approval is required from Defence.

It is important to note that controlled technology is rarely ever published. Defence examined over 300 publications and determined that less than 3% conveyed controlled technology. Of these publications, the technology only just met the control threshold.

The controls only apply if a person is publishing controlled technology. It is essential to remember that technologies in the DSGL are only controlled in quite limited circumstances. Technology is not controlled if it is already in the public domain or part of basic scientific research. Most importantly, technology is only controlled if it meets the high threshold of being that very specific technology that is particularly responsible for achieving or extending controlled performance levels, characteristics or functions.

Frequently Asked Questions

Why is the publication of DSGL technology subject to control?

Once 'DSGL technology' is in the public domain, it is no longer possible to control who has access to it. Publishing DSGL provide potential adversaries with sensitive and potentially dangerous information. Once published, there is limited prospect of regulating that information in Australia, or elsewhere in the world

How do I know if the Defence Trade Controls Act 2012 applies to me?

Publication controls only apply to Part 1 (Military) DSGL technology. The publication of Part 2 (Dual-Use List) DSGL technology is not regulated; no approval is required from Defence.

Based on Defence’s work with universities, it has been determined that it is highly unlikely that publications of military technology will meet the very specific control thresholds to be listed in the DSGL . However, if you believe your publication will likely contain controlled Part 1 (military) DSGL technology, you should use the Online DSGL Tool to determine if the Defence Trade Controls Act 2012 applies to your activity and the technology is listed in the DSGL . If you are still unsure, you should contact the compliance area within your organisation (if applicable) or Defence Export Controls.

What is the difference between 'supply' and publication?

For some activities it can be difficult to determine whether it is a 'supply' or publication. To determine the difference, you should ask "Will the 'DSGL technology' be made available in the public domain?".Being in the public domain means anyone has the opportunity to access the technology.

If DSGL technology is being placed in the public domain, for example via a journal, website or webcasts, and there are no access restrictions then it is a publication. Having to pay to view the information is not an access restriction.

If access to the DSGL technology is restricted to particular users or groups, it is a supply and would require a permit to allow access by people located overseas. Examples include a workshop where only members from a select organisation or group can access the controlled technology, for example with a username and password (for example, members of a project team, group or association).

How do I apply for approval to publish Part 1 (Munitions List) DSGL technology?

Once 'DSGL technology' is published, it is in the public domain and can no longer be export controlled anywhere in the world. DSGL technology is controlled because it can be used for either a military purpose or a weapons of mass destruction program.

It is highly unlikely for publications to meet the complex and specific control thresholds in the DSGL . If you believe your publication contains technology listed in Part 1 of the DSGL , use the Online DSGL Tool to make an assessment about its control status. If you are still unsure contact the compliance area in your organisation or Defence Export Controls for advice and assistance on how to proceed.

Under what criteria will my request to publish Part 1 (Munitions List) DSGL technology be assessed?

The Minister for Defence or an authorised delegate may issue an approval if they are satisfied that the activity would not prejudice the security, defence or international relations of Australia. Your application will be assessed using the criteria listed in Section 8 of the Defence Trade Controls Regulation 2013.

Can my request to publish Part 1 (Munitions List) DSGL technology be refused?

Only the Minister for Defence can refuse an application to publish Part 1 (Munitions List) 'DSGL technology' if the Minister has reason to believe that the publication would prejudice the security, defence or international relations of Australia. A denial of a permit will only occur after extensive consultation with the applicant and other government agencies has taken place. If an application is refused, the Minister will notify you of the decision and provide the reasons for doing so, unless the Minister has reason to believe that the disclosure of the reasons would prejudice the security, defence or international relations of Australia.

Can approval to publish Part 1 (Munitions List) DSGL technology be revoked?

Yes, the Minister for Defence may revoke an approval if she or he has reason to believe that any publication covered by the approval would prejudice the security, defence or international relations of Australia. A decision to revoke a permit will usually be made, except in very extraordinary circumstances, after consultation with the permit holder and other government agencies. If your permit is revoked, the Minister must give reasons for revoking the permit unless the disclosure of the reasons for the revocation will prejudice the security, defence or international relations of Australia.

What happens if I publish Part 1 (Munitions List) DSGL technology without approval?

If Defence discovers that DSGL technology has been published without a permit, it will take into account all factors surrounding the incident before it decides how to respond. Depending on the circumstances, Defence has a range of options including awareness raising, revocation of a permit through to referring the matter for consideration by the Australian Federal Police.

The maximum penalty for supplying DSGL technology without a permit is up to ten years imprisonment or 2500 penalty units (equating to a fine of $425,000) or both. The main offence provisions under the Defence Trade Controls Act 2012 come into force on 2 April 2016. The offence provisions can not be applied retrospectively.

Further information regarding compliance can be found on the Compliance Page on this website.

Can the Minister prohibit the publication of technology listed in Part 2 (Dual Use) of the DSGL ?

Yes. Although you don’t require a permit to publish technology listed in Part 2 of the DSGL , the Minister does have the power to prohibit its publication if the Minister considers it would prejudice the security, defence or international relations of Australia. Any prohibition would only take place after extensive consultation with the person or organisation intending to publish and other government agencies. A notice to prohibit the publication of Part 2 DSGL technology CAN NOT be issued after the publication has taken place, and it is not an offence to publish such technology if a notice is not already in place.

What happens if I receive a notice that the Minister for Defence is considering prohibiting publication of Part 2 (Dual-Use List) DSGL technology?

This is an interim notice that temporarily prevents you from publishing Part 2 (Dual-Use List) 'DSGL technology' while the Minister for Defence considers whether there are grounds to prohibit the publication.

This notice is issued by the Secretary of Defence and will set out the reasons for giving the notice, unless the Secretary has reason to believe that disclosing the reasons would prejudice the security, defence or international relations of Australia. The interim notice is issued in circumstances where the Secretary considers that there may be grounds for the Minister for Defence to issue a prohibition notice.

The interim notice will cease to be in force when one of the following occurs:

  • the Minister for Defence issues a prohibition notice;
  • 90 days after the interim notice comes into force;
  • the Secretary or their delegate revokes the notice.

It is an offence to publish Part 2 (Dual-Use List) DSGL technology knowing that an interim notice is in force.

What is the decision making process when considering to prohibit publication of Part 2 (Dual-Use List) DSGL technology?

Defence will consult with you in the first instance and then with other relevant stakeholders to assess whether the publication of Part 2 (Dual-Use List) 'DSGL technology' would prejudice the security, defence or international relations of Australia.

If there are insufficient grounds for issuing a prohibition, the interim notice will be revoked and you can publish the Part 2 (Dual-Use List) DSGL technology. If the preliminary finding is that the publication may prejudice the security, defence or international relations of Australia, then Defence will consult with the affected person and more broadly. For example, when the decision relates to university or research publications, Defence will consult relevant subject matter experts (e.g. the Chief Executive Officer or the National Health and Medical Research Council), and policy areas from relevant Government agencies, including the agencies responsible for industry science, education and research.

Defence will continue to consult with you during this process to discuss the proposed publication and provide you with opportunities to make submissions and provide additional information. Defence will update you on the progress of the decision making process.

The views expressed in this consultation will be included in the advice provided to the Minister. The Minister may also decide to consult directly with relevant Ministers, including the Minister(s) responsible for industry, science, education and research, before making a decision.

What happens if the Minister for Defence issues a prohibition notice at the end of the decision making process?

A prohibition notice will be issued if the Minister for Defence has reason to believe that the publication of Part 2 (Dual-Use List) 'DSGL technology' would prejudice the security, defence or international relations of Australia.

If a prohibition notice is issued, the Minister will provide written notification of the decision and will provide the reasons for doing so, unless the Minister has reason to believe that disclosing the reasons would prejudice the security, defence or international relations of Australia.

A prohibition notice will remain in force for the period specified in the notice (no longer than 12 months), unless it is revoked earlier. The notice will be reviewed by the Minister for Defence annually and if the Minister still believes that the publication of DSGL technology will prejudice the security, defence or international relations of Australia, she or he may issue a subsequent prohibition notice

Only the Minister for Defence can issue a prohibition notice.

It is an offence to publish DSGL technology, or to contravene a condition of the notice, knowing that a prohibition notice is in force.

Can a prohibition notice be revoked?

Yes, the Minister for Defence can revoke a prohibition notice.

What are my rights to review and Defence's privacy and information handling policy?

Information on rights to review and Defence's privacy and information handling policy can be found on the Export Controls and Your Rights Page on this website.

See also:

Publication: Frequently Asked Questions on the Supply Page on this website.

Brokering: Frequently Asked Questions on the Brokering Page on this website.

Definitions

'Australia' (For the DTC Act 2012) this means the Australian mainland, Tasmania, Jervis Bay Territory, Australia's external territories (Ashmore and Cartier Islands, Australian Antarctic Territory, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard Island and McDonald Islands and Norfolk Island) as well as Australia's Territorial Sea (12 nautical mile limit).

'DSGL Technology' means a thing that is technology or software as defined by the Defence and Strategic Goods List and within the scope of that list.

'Military End-Use' Goods are or may be for a military end-use if the goods are or may be for use in operations, exercises or other activities conducted by an armed force or armed group, whether or not the armed force or armed group forms part of the armed forces of a foreign country.

'Person' is defined in section 2C of the Acts Interpretation Act 1901 to 'include a body politic or corporate as well as an individual'. Therefore, 'person' can mean an individual or an organisation.

'Supply' includes supply by way of sale, exchange, gift, lease, hire or hire-purchase and includes the provision of access to DSGL technology.

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