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.
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.
You do not require a permit if the supply is:
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.
You do not require a permit when orally supplying DSGL -listed software and technology, for example:
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.
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:
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.
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:
Controlled - permit 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.
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.
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:
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
Supporting documents and information may include:
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.
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.
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.
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.
We also have further information about establishing an internal compliance program which may be helpful.
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.
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.
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.
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:
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.
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:
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.
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.
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.