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Module Two - Overview of Australia's Export Controls

This module will cover:

  • Australia's System of Export Controls
  • The Customs Act 1901
  • The Customs (Prohibited Exports) Regulations 1958 - Regulation 13E
  • The Defence Trade Controls Act 2012
  • Australia and the United States' Export Regulations
  • Catch-All Legislation
  • Sanctions Legislation
  • Other Legislative Considerations

Australia's System of Export Controls

Underpinning Australia's system of export controls is a legislative framework that enables the Government to manage and monitor exports of controlled goods, services and technologies.

The Customs Act 1901

The Customs Act 1901 is the legislative basis for controls on the export of defence and strategic goods and technologies. These controls are executed through Regulation 13E of the Customs (Prohibited Exports) Regulations.

Goods may be prohibited for export unless all necessary export permits are obtained from the relevant permit issuing agency.

In most cases, goods may not be exported, or loaded on a ship or aircraft for export unless they have been approved for export and Customs has issued a Certificate of Clearance.

A certificate will not be issued unless all Commonwealth requirements about the ship or aircraft and its cargo have been met.

The Customs (Prohibited Exports) Regulations 1958 - Regulation 13E

The Department of Defence is responsible for administering Australia's export controls on defence and strategic goods. Controls are administered in accordance with the Customs (Prohibited Exports) Regulations 1958, Regulation 13E.

Regulation 13E allows the Minister for Defence, or an authorised person, to grant permission to export goods listed on the Defence and Strategic Goods List - or DSGL.

The exception is for nuclear fuels and special fissionable material, which are administered by the Department of Industry - formerly the Department of Resources, Energy and Tourism.

The Defence Trade Controls Act 2012

The Defence Trade Controls Act 2012 is the legislative basis to regulate the intangible, or non-physical, supply and publication of DSGL technology and the brokering of DSGL goods and technologies.

The Act includes provisions regulating:

  • intangible supply of controlled technology, such as supply by electronic means;
  • publishing of controlled military technology; and
  • brokering the supply of controlled goods and technology.

Note: The Customs Act 1901 and the Defence Trade Controls Act 2012 have different controls on the export or supply of technology depending on whether they are captured on the Military List (Part 1), or the Dual-Use List (Part 2) of the DSGL.

Australian and United States' Export Regulations

Australian legislative controls should not be confused with the controls placed on US goods and technologies by the government of the United States.

Compliance with US export regulations does not remove the need to also comply with Australia's export controls.

Further information is available on the US Department of State website.

Catch-All Legislation

The Australian Government has the ability, through the use of "Catch-All Legislation" to prohibit the export or supply of goods and technology that could be used in a weapons of mass destruction program or contribute to adverse military activity. This legislation can apply to any goods, technologies and services not listed on the DSGL.

Sanctions Legislation

Sanctions are implemented principally by the Charter of the United Nations Act 1945, the Autonomous Sanctions Act 2011 and the Customs Act 1901 and through regulations made under these Acts.

The Department of Foreign Affairs and Trade (DFAT) administers the implementation of sanctions which restrict or prohibit the export of certain goods to particular country destinations and designated individuals and entities.

Sanctions implemented in Australia generally involve the prohibition of:

  • arms embargoes, bans on the import and export of certain commodities and travel sanctions;
  • financial restrictions, civil aviation restrictions; and may also include the down-grading or suspension of diplomatic ties; and
  • who you can collaborate with on certain types of research outside of Australia, who may come to Australia to study or collaborate with you or in your institution and what that collaboration will involve.

As well as the sanctions imposed by the United Nations Security Council and implemented in Australian legislation under the Charter of the United Nations Act 1945, Australia also imposes autonomous sanctions on certain countries and individuals that support our foreign policy objectives through the Autonomous Sanctions Act 2011.

Inquiries and applications related to sanctions can be directed to DFAT via the Online Sanctions Administration System (OSAS) on the DFAT website.

Other Legislative Considerations

Goods and technologies that are not controlled in the DSGL may still be prohibited for export by the Minister for Defence in some circumstances.

Goods and technologies that are assessed as likely to be used in a WMD program may be prohibited for export under the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.

Exports of goods and technology that may contribute to a military end-use, or negatively impact on Australia's national interest, may also be prohibited.

The Defence and Strategic Goods List (DSGL)

The Defence and Strategic Goods List - or DSGL - is a legislative instrument which contains all items that have been listed by arms control treaties and international export control regimes as needing to be controlled , and identifies specific Australian goods and technologies.

DEC regularly works with international export control regime partners to discuss items controlled on their specific lists and to update Australia's DSGL.

Goods that are included on the DSGL may not be exported from Australia unless a permit has been granted by the Minister for Defence, or an authorised person, and that permit is produced to a Collector of Customs before exportation. It is important to understand the exact nature of the DSGL controls relating to the specific goods or technologies that you intend to export or supply.

Under the DSGL, "technology" means specific information necessary for the "development", "production" or "use" of a product. This information includes:

  • "technical data" which may include blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded; and
  • "technical assistance" which may take forms such as instruction, skills, training, working knowledge and consultancy services and may involve the transfer of technical data.

Many DSGL goods and technologies are only controlled if they meet or exceed certain technical specifications or levels of purity.

For most DSGL goods, associated technology will only be controlled if it is peculiarly responsible for enabling the recipient to achieve or exceed those specifications or purity levels.

The DSGL contains a number of exemptions that can apply to technology that may otherwise be controlled. This includes:

  • "in the public domain";
  • "basic scientific research";
  • the minimum necessary information for patent applications; or
  • medical equipment specially designed for medical end-use that incorporates an item controlled in Part 2 of the DSGL.

Full explanations on the above exemptions can be found on the DSGL page on DEC's website.

The DSGL is split into the Munitions List (Part 1) and Dual-Use List (Part 2).

Part One - The Munitions List

Captures all military equipment, and related equipment and technology into 22 Categories on a Munitions List (ML 1-22) that covers:

  • military platforms and components;
  • weapons and ammunition;
  • chemical and biological warfare agents;
  • explosives;
  • electronic systems and equipment; and
  • software and technology.

The Munitions List also captures non-military lethal goods (ML 901-910) that are not prescribed by any treaties or export control regimes, but are controlled by the Australian Government to address proliferation and security concerns. These include:

  • civilian firearms - such as pistols, rifles, shotguns, ammunition, accessories and production equipment; and
  • commercial explosives not covered anywhere else in the DSGL.

Part Two - The Dual-Use List

Covers dual-use (sometimes referred to as 'strategic') goods and technologies developed for commercial needs but may be used as part of a military program, for the development or production of a military system, or weapons of mass destruction.

Strategic goods captured on the Dual-Use List are split into 10 categories. These categories can be viewed via the DSGL Quick Reference Guide. This guide will also help you to familiarise with the structure and content of the DSGL.

The Online DSGL Tool

DEC has developed an online tool to help you understand whether your item is listed on the DSGL, and to determine if you will need to apply to DEC for export approval, by providing users with a series of questions.

Your answers will produce an outcome document which can assist you in your application to DEC and advise you of any other relevant export control legislation. The outcome document can be used as part of your due diligence and record keeping purposes.

The Online DSGL Tool is a free service available on DEC's website.

Go to Module Three.