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Supply of Export Controlled Goods and Technologies

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Important Note: The offence provisions of the Defence Trade Controls Act 2012  – for supplying and publishing DSGL technology and for brokering DSGL goods and technology – came into force on 2 April 2016.  Individuals and organisations must now seek permits for any controlled activities.

Supply occurs when a 'person' in 'Australia' provides technology included on the Defence and Stategic Goods List (DSGL) - 'DSGL technology' - to another person outside of Australia. Examples include supply via email or fax, or by providing someone outside of Australia with passwords to access controlled technology stored electronically.

It is very important to note that the controls only apply if a person is supplying or 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.

Providing DSGL technology from Australia to a place outside of Australia is controlled, even if you believe the recipient already has knowledge of the controlled information being provided. The supply of DSGL technology to the recipient will require a permit unless exceptions apply.

Controls do not apply to the supply of DSGL technology wholly within Australia, or wholly outside of Australia. An exception applies to the supply of DSGL technology made orally in some circumstances.

Supply must occur between one person (or in other words, a legal entity) and another person. For example, an employee of 'Company A' located in Australia, emails DSGL technology to an employee of the same 'Company A' who is located overseas. The email is in the course of their duties as employees of the company. A permit would not be required because the supply is occurring within the same legal entity.

Supply Frequently Asked Questions

Why does Australia control the supply of DSGL technology?

As a member of numerous international counter-proliferation regimes, Australia is part of a global effort to regulate the export of items that can be used for a military end use or or contribute to the development of Weapon of Mass Destruction.

Australia's export control system aims to prevent goods and technology that can be used in chemical, biological and nuclear weapons, or military goods and technologies, from being transferred to individuals, states or groups of proliferation concern.

Regulating the transfer of controlled technology closes recognised gaps in Australia's export controls laws - controlled technology should be treated the same way, regardless of whether it is being physically sent across the Australian border or being emailed or otherwise intangibly transferred from 'Australia' to a place overseas.

Who is subject to these controls?

Controls on the 'supply' of 'DSGL technology' apply to anyone located in 'Australia', for example, companies, individuals and researchers. The nationality of the 'person' supplying or receiving the 'DSGL technology' is not a consideration when determining whether export control laws apply.

Supply must occur between one person (or in other words, a legal entity) and another person. For example, an employee of 'Company A' located in Australia, emails DSGL technology to an employee of the same 'Company A' who is located overseas, and the email is in the course of their duties as employees of the company, a permit would not be required because the supply is occurring within the same legal entity.

You will be subject to these controls if you intend to provide 'DSGL technology' to another person outside of Australia.

Are there any exceptions to these controls?

You do not require a permit if the supply is:

  1. a pre-publication activity, of dual use technology (Part 2 DSGL ), such as emailing a draft article to an overseas journal; or
  2. supply made orally in some circumstances; or
  3. supply under the Australian-US Defence Trade Cooperation Treaty; or
  4. made by, or made to, members of the following groups in the course of their official duties:
  • Australian Defence Force,
  • Australian Public Service employee,
  • Australian Federal Police,
  • State or Territory police,
  • Australian Security Intelligence Organisation employee, or
  • Australian Secret Intelligence Service employee.
What is a pre-publication supply activity?

There is an exception from requiring a permit where a person is supplying Part 2 (Dual-Use) DSGL technology and the supply is preparatory to the publication of the 'DSGL technology'.

An activity will be 'preparatory to the publication' where the person has commenced drafting a publication that contains Part 2 (Dual-Use) DSGL technology, the author intends to publish the publication, and the draft publication (or part of the draft publication) is supplied to a person overseas to further that publication.

For example, activities such as sending a draft publication containing Part 2 DSGL technology overseas to a co-author, colleague or expert for comment, or sending a draft publication to or from a peer reviewer or journal editor will not require a permit.

Is oral supply of DSGL technology regulated?

You do not require a permit when orally supplying DSGL -listed software and technology, for example:

  • Telephone conversations;
  • Video conferences;
  • Live streaming; or
  • Webinars.

Most importantly, given the specific and generally high thresholds for any technology to meet the controlled threshold in the DSGL , and given how extremely complex controlled technology is, it is highly unlikely that controlled technology will be conveyed orally.

IMPORTANT:

You will need a permit if you are orally supplying a person access to technology (e.g. providing a password) or the orally-supplied technology will be used in a Weapons of Mass Destruction program or for a military end-use. Please see below for examples:

  • Oral supply exception applies: Kate has a telephone conference with her research partners in Germany. During that conversation, Kate discusses DSGL technology. The oral supply exception applies and therefore a permit is not required. However, as mentioned above, it is highly unlikely that controlled technology will ever be conveyed orally.
  • Oral supply exception does not apply: Kate has a telephone conference with her research partners in Germany. During that conversation, Kate orally provides her colleagues with a password to access a cloud server, so that they can share DSGL controlled technology. The oral supply exception does not apply as Kate is providing access to DSGL technology. Therefore, a permit is required.
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 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).

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

Regarding conferences, it is very unlikely you will need a permit to present at a conference or to send (or take) a presentation to a conference. It would be rare for technology contained in a conference paper or presentation to meet the specific thresholds in the DSGL that would make it controlled. DSGL thresholds are very specific and generally high and it would be rare for a conference paper to contain information that met these thresholds. Any researcher who believes their conference paper meets that the DSGL threshold should contact Defence Export Controls for an assessment.

More information on how the DTC Act regulates the publication of DSGL technology is available on the Publication Page on this website.

How does the Act regulate supply via cloud computing, servers and document sharing tools?

The Act focuses on the 'supply' of 'DSGL technology' from 'Australia' to another 'person' located outside of Australia. Where the server is located is not a consideration. What matters is on the location of the supplier (within Australia) and the location of the recipient (outside of Australia).

Sharing DSGL technology through a cloud or other document sharing tools may be a supply of controlled technology if the person is supplying the technology to a person located outside of Australia.

Uploading DSGL technology to a cloud, servers or document sharing tools for storage purposes, regardless of where the server is located, is not a supply if there is no intent to provide access to another person outside of Australia. Therefore, a permit is not required for this activity. If DSGL technology is uploaded to a cloud service in Australia, with the intention of supplying that technology to another person outside of Australia, a permit would be required.

DSGL technology must be supplied from a person in Australia to another person located overseas at the time of supply for the activity to be regulated. Please see below examples:

Not controlled - no permit:

  • Steve in Australia uploads DSGL technology to his cloud. Steve then travels overseas and accesses that technology whilst overseas. No supply has occurred.
  • Kelly saves DSGL technology to her email account while in Australia and then accesses that technology when she is in the UK for a conference. This is not regulated, even if Kelly passes that technology to another person while she is in the UK because the supply is occurring wholly outside of Australia.
  • Holly provides her colleague located in Australia with a username and password to a database containing DSGL technology. This is not regulated, even if Holly’s colleague continues to access the technology on that database when she travels overseas because the supply occurred wholly inside of Australia.

Controlled - permit required:

  • Steve in Australia uploads DSGL technology to his cloud. Steve gives the password to his cloud to Max, his research partner located in Switzerland. This is supply and a permit is required.
  • Kelly in Australia loads DSGL technology to a cloud service to provide access to Holly who is located overseas. Holly can gain access without the requirement of a password. This is supply and a permit is required.
  • Todd and Monica work in different organisations in different countries but they both work on the same research project. They have individual logins and passwords to access the same shared website. Todd, in Australia, uploads DSGL technology to the shared website to share this technology with Monica, who is located overseas. This is a supply and a permit is required.

Export control laws do not require you to store DSGL technology in a particular manner, for example using encryption or access controls on service providers. However security requirements would apply if the data is classified.

Saving DSGL technology to your email account while in Australia and then accessing the DSGL technology while located overseas is not regulated, even if you pass that technology to another person while you are located overseas because the supply is occurring wholly outside Australia. Providing a person located in Australia with a username and password to a database with DSGL technology is not controlled, even if that person continues to access the same DSGL technology on that database when overseas because the provision of access to the controlled technology was granted while both people were located in Australia.

How do I know if my goods or technologies are controlled?

In the first instance, use the Online DSGL Tool to make an assessment about the control status of your goods or technology. If you are still unsure contact the compliance area in your organisation or Defence Export Controls for advice and assistance on how to proceed.

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.

How do I apply for a permit to supply DSGL technology?

If your goods or technology are controlled, you will need to apply for a permit to supply or export the goods or technology from Australia to a person overseas.

To apply for a permit, you must first register as a client with Defence by submitting a Client Registration Form. Once you receive your unique client ID number you can submit an Application to Export Controlled Goods and Technology.

Permits can be issued to an individual, company or an organisation. The name of the permit holder will be taken from the details that are provided in the Client Registration Form, specifically, the 'Name of Applicant' field.

An application takes up to 15 working days to assess from when a completed application is received. This may be extended to 35 working days if the application needs to be referred to other agencies. Occasionally cases that are particularly complex or sensitive may take more than 35 working days to assess.

It is important to provide as much information as possible in your application as this will assist DEC to issue the most appropriate permit to suit your needs. Consider all possible scenarios of supply or export that may occur and include this in your application so that you have the appropriate approvals in place.

Ensure the scope of your application is broad enough to cover all foreseeable possibilities of the proposed activity including:

  • current recipients;
  • likely future recipients as the work develops;
  • the likely location of the recipients; and
  • the potential for additional controlled goods or technology to be involved in the export or supply as the project develops.

From time to time, you will need to apply to amend your permits to ensure your activities have approval. You should apply to amend your permits when new entities or new controlled goods or technology are likely to be involved in the activity.

Hints and tips when completing your application

  • Submit your application as early as possible.
  • Holding a permit does not mean you have to use it. You don't have to wait for a customer order or commencement of a project to apply. You can apply based on an anticipated activity.
  • Consider your application against the policy criteria by which exports are assessed and inform DEC if you have mitigated any risks. For example, let DEC know if the goods have design features that might render the goods inoperable by unauthorised users, or if you will be installing the equipment on-site. This information may save time during the assessment process.
What supporting documentation may be required?

Supporting documents and information may include:

  • If applicable, a current end user statement.
  • A brief overview of the nature of your work. For example the description could be similar to the wording used for a grant or research project proposal or summary.
  • What is the primary function of the item/ technology? For example, is the primary function to provide confidentiality of data information?
  • What stage of research is your work at? For example, has this body of work been funded? Are you in the early research stages of reviewing related papers and principles?
  • Will there be any international collaboration? If so, please provide any agreements / contracts.
  • What are the aims of the project? Are there any practical applications of your research which have been developed? For example, do you have a final product or solution in mind?
Under what criteria will my application to supplyDSGL technology be assessed?

The Minister for Defence or an authorised delegate may issue a permit 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, which relate to national security, regional security, international obligations, human rights and foreign policy.

Can I obtain an in-principle approval for a proposed supply of DSGL technology?

Yes.

You can specify on your application that you want an in-principle approval assessment. An in-principle approval assessment is an indication of whether an application to 'supply' 'DSGL technology' would be likely to be approved - it does not give permission to supply DSGL technology.

An in-principle approval is not a guarantee that a subsequent permit application would be approved and you will need to obtain a permit before exporting or supplying controlled goods or technology.

Can my application to supply DSGL technology be refused?

Only the Minister for Defence can refuse an application to 'supply' 'DSGL technology' if she or he is satisfied that the supply would prejudice the security, defence or international relations of Australia. If an application is refused, the Minister will notify you of the decision and provide the reasons for doing so, unless the Minister believes that the disclosure of the reasons would prejudice the security, defence or international relations of Australia.

What happens if I supply DSGL technology without a permit?

If Defence discovers that DSGL technology has been supplied 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 penatlty for supplying DSGL technology without a permit is up to ten years imprisonment or 2500 penalty units (equating to a fine of $450,000) 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.

What compliance or audit powers does the Department of Defence have under the Defence Trade Controls Act 2012?

The Secretary of Defence or an authorised delegate has information gathering powers that may be exercised if they believe a person has information or a document relevant to the operation of the DTC Act. The Secretary can, by notice, require a person to give the Secretary information, produce documents and make copies of documents.

The Secretary of Defence or an authorised delegate may by notice require a person to produce records that are required to be kept under the DTC Act.

The Government does not have the power to enter or search premises in relation to supply of DSGL technology, except under the powers of a warrant. There is no power to conduct on-site audits.

Can a permit expiry date be extended?

No. You may apply for another permit by submitting the form Application to export DSGL Goods and Technology. To ensure continuity in your ability to conduct a controlled activity, Defence advises applying for new permits before the existing ones expire.

You are responsible for ensuring that you have the appropriate approvals for your activities, and keep up to date with changes to the legislation or any changes to your approvals.

Can a permit to supply DSGL technology be revoked?

Yes.

The Minister for Defence may revoke a permit if she or he is satisfied that any activity covered by the permit 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 are the record-keeping requirements?

Once you have a permit, you are able to 'Supply' the 'DSGL technology' to authorised recipients. You must keep records of supplies made under a permit for 5 years. Section 24 of the Defence Trade Controls Regulation 2013 requires that you record the following information:

  • A description of the DSGL technology supplied under the permit;
  • the permit number under which you supplied DSGL technology;
  • the name of any person you supplied DSGL technology to; and
  • for each supply of DSGL technology under the permit: the date of supply; or, if the permit covers the supply for a period of time, the period or periods of time during which you supplied the DSGL technology.

There are many different ways of supplying DSGL technology compared with physical exports. As such, record keeping obligations for supply are broad to allow flexibility with your existing record-keeping practices.

Below is some general guidance that you may choose to adopt to help you design record-keeping systems that meet the requirements listed above. The examples are not exhaustive and you may choose to adopt another method that meets the requirements.

Email: If you supply DSGL technology via email, you will fulfil your record-keeping obligations if you include a reference to the permit number in the email (e.g. in the header, body or footer), and keep a copy of the email. Retaining that email will automatically capture the DSGL technology, the name of the person receiving the DSGL technology, as well as the date and time of the supply; thereby meeting all of record-keeping obligations. Alternatively, you could name a folder with the permit number and save all emails to that folder.

Facsimile: You can retain a fax receipt for the supply and include any required information that is not already listed on the receipt, such as the permit number or a description of the DSGL technology.

Examples of record-keeping

A one-off supply of DSGL technology where no further supplies are anticipated. An institution has a permit which allows the supply of controlled software. An employee emails that software to an overseas customer. The employee meets their obligation by including the permit number in the email and retaining the email in an archive folder for five years.

Multiple supplies of DSGL technology. An Australian research group has a project-based permit to supply controlled technology overseas to a number of other research organisations and companies in several countries. The technology will be supplied via a number of means, including emails and providing access to an online repository. The project manager, who is the 'permit holder', makes a record (e.g. a file note or on a spreadsheet) as soon as the first supply occurs stating that a supply of technology listed in permit number XXXXXX began on that date, and makes a similar note when the supply activity concludes or the permit expires. These records would need to be kept for five years.

You may find it easier to record supplies in a tabular format as for the example below: An example of a spreadsheet recording the supply of controlled technology

It should be noted that record-keeping requirements relate only to the actual supplies of DSGL technology, not associated communication which may discuss the supply but do not actually constitute the supply itself.

Reporting of supply activities

Some permits to supply DSGL technology, that are assessed as having a higher degree of risk, may include conditions that impose additional record-keeping requirements, or the obligation to submit a report to Defence Export Controls listing the supply activity. This condition will be clearly stated on the permit when it is issued. You will be sent reminders when a report is due, and reminders if you do not submit your report in the required timeframe.

It is important that you read your permit carefully and comply with all conditions listed on your permit.

Unless required by a permit condition, you do not need to submit records to Defence Export Controls.

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

Information on rights to review and DEC'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 Publication 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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