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Amendments to Regulation 13E of the Customs (Prohibited Exports) Regulations 1958

The Customs Act 1901 is the legislative basis for controls on the export of physical military and dual-use goods and technologies. Controls are executed through the Customs (Prohibited Exports) Regulations 1958 (the Regulations). Regulation 13E of the Regulations allows the Minister for Defence, or her delegate, to grant a permit to export goods and technologies listed in the Defence and Strategic Goods List (DSGL).
On 21 April 2018, regulation 13E was amended to include:

  • new export exceptions (where a permit is not required):
    • for the temporary export of technology constituting, or stored on, a physical item (e.g. USB) for personal use, which will not be transferred to another person whilst overseas; and
    • for the export of technology constituting, or on a physical item (e.g. USB) that has been temporarily imported into Australia, and is being exported back to the country of import;
  • additional review mechanisms;
  • new ministerial revocation powers;
  • decision criteria for granting/refusing a permit; and
  • clarification regarding disclosure of information.


The amended Regulations can be found here.


Export Exceptions in the Customs (Prohibited Exports) Regulations 1958

The Customs (Prohibited Exports) Regulations 1958 provides exceptions regarding the export of controlled technology constituting, or located on, a physical item (e.g. USB, hard drive, laptop).

1. Temporary export exception
There is an exception for a person (individual or body corporate) exporting goods (e.g. USBs, laptops, hard drives) containing or constituting controlled technology if all of the following apply:

  • the export is an uncontrolled PHYSICAL good (e.g. USB/hard drive/laptop) which contains controlled technology OR is a PHYSICAL good which constitutes controlled technology (e.g. printed blueprints); and
  • the technology is for use by the person ONLY; and
  • the person will travel with the goods (containing or constituting the technology) and intends to return to Australia with the goods; and
  • the technology WILL NOT be disclosed, used by, sold or transferred to any other person whilst outside of Australia.

If your proposed export meets all these criteria, you do not require an export permit under regulation 13E. This exception applies to transfers between employees from the same body corporate in the course of their duties while overseas. This exception does not apply where the goods are transferred between a body corporate and its parent company or subsidiary while overseas. 
Example 1:
You are a university researcher travelling overseas to present at a conference. Your laptop, which contains your presentation, also contains controlled technology. You will not be sharing this controlled technology with anyone while overseas. You will bring the laptop back to Australia at the conclusion of the conference.
The exception applies; an export permit under regulation 13E is not required.

Example 2:
You are an employee of a large multinational corporation travelling overseas for a meeting with sub-contractors to your company. You take a USB with you which contains uncontrolled data you will use for your meeting. The USB also contains controlled data. You will not share the controlled data, only talk through the uncontrolled data at the meeting. You will bring the USB back to Australia at the conclusion of the meeting.
The exception applies; an export permit under regulation 13E is not required.

Example 3:
You are an employee of an Australian research organisation and are travelling to the Netherlands with several colleagues to meet with a research collaborator regarding an uncontrolled research project. Both you and your colleagues will take laptops containing controlled technology, as well as information regarding the uncontrolled collaboration project. While overseas, you and your colleagues will discuss and transfer the controlled technology amongst yourselves, but will not provide it to individuals outside of your research organisation (including the Dutch collaborators on the separate project). You and your colleagues will bring the laptops back to Australia at the conclusion of the meetings.
The exception applies; an export permit under regulation 13E is not required.

 

2. Exception for export following temporary import
There is now a specific exception for a person (individual or body corporate) exporting goods (e.g. USBs, laptops, hard drives) containing or constituting controlled technology following their temporary import into Australia, if all of the following apply:

  • the export is an uncontrolled PHYSICAL good (e.g. USB/hard drive/laptop) which contains controlled technology OR is a PHYSICAL good which constitutes controlled technology (e.g. printed blueprints); and
  • the goods have been imported (from a foreign country) into Australia by a person; and
  • will be exported from Australia back to the same country, by the same person; and
  • the person will travel with the goods when they are exported.

For the exception to apply the goods must return to the same country from which they were originally imported. For example, goods imported from France to Australia must be exported back to France for this exception to apply.
Example 1:
You are an employee of a large multinational company based in France. You are travelling to Australia to undertake discussions with your Australian counterparts regarding the design of a new ship your company is building. On your trip to Australia, you need to bring with you a USB containing controlled blueprints that you present at a meeting. Following the conclusion of your meeting with the Australian team, you return to France with the USB containing the blueprints.
The exception applies; an export permit under regulation 13E is not required.

Example 2:
In the event you undertake the above activity but need to return to France early for a family emergency. You leave the USB in the care of a colleague from the Australian subsidiary of your company to take back to France.
The exception DOES NOT apply; the colleague at the Australian subsidiary will need to obtain an export permit under regulation 13E to return the USB to France. In this instance, the requirement for the export to be undertaken by the same person who imported the item is not met.