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The Weapons of Mass Destruction Act Guide

This guide explains how to work with Defence to ensure you comply with Australian laws preventing transactions that may be at risk of contributing to a weapons of mass destruction program.

What is WMD?

Weapons of Mass Destruction (WMD) devices are those designed, or having the capability, to cause significant numbers of casualties, or significant damage to property through nuclear detonation or the release of biological or chemical agents, or ionising radiation.

Why does Australia have a WMD Act?

The Australian Government is a strong supporter of efforts to prevent the proliferation of WMD by complying with arms control treaties and pursuing measures to strengthen them. Australia is a member of four major export control regimes (Wassenaar Arrangement, Missile Technology Control Regime, Nuclear Suppliers Group and the Australia Group) and is committed to ensuring that Australian exports comply with our international obligations and national security, as well as strategic policy objectives.

Australia implements controls on the most critical items and technology that could contribute to a WMD program by listing items in the Defence and Strategic Goods List (DSGL). The DSGL lists goods and technology that are agreed to by the international export control regimes. The legal instrument for controlling the export of such items is Regulation 13E of the Customs (Prohibited Exports) Regulations 1958 of the Customs Act 1901. Regulation 13E provides that the export of any item listed in the DSGL must be approved prior to export.

Because it is not possible to identify and describe all possible goods and services which could contribute to a WMD program, the Australian Government introduced the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act). The intent of the WMD Act is to prohibit the supply or export of goods that will or may be used in, and the provision of services that will or may assist, the development, production, acquisition or stockpiling of weapons capable of causing mass destruction or missiles capable of delivering such weapons. The WMD Act applies to nuclear, biological or chemical weapons or missiles capable of delivering such weapons.

Defence Export Controls (DEC) administers the WMD Act on behalf of the Minister for Defence and the Federal Government. The Australian Border Force and the Department of Foreign Affairs and Trade work with us to ensure that Australia does not engage in activities that may contribute to the proliferation of WMD.

What types of goods and services are controlled?

The WMD Act controls goods which are not regulated by the Customs (Prohibited Exports) Regulations 1958, and goods and services that are not controlled by a sanctions-related law. With the above exclusions in mind, the WMD Act applies to the following activities:

  • the supply of goods, both within and outside Australia, that will, or may be used in a WMD program
  • the export of goods that will or may be used in a WMD program
  • the provision of services, within and external to Australia, that will or may assist a WMD program

The WMD Act can prohibit the supply and export of goods which comprise equipment and technologies developed to meet commercial needs but which may be used for the development or production of WMD. These goods are referred to, colloquially, as dual-use goods.

Services could, for example, take the form of working as a contractor, consultant or employee; providing training; providing technological know-how or information which could also cover the transmission of information by telephone, fax or email; procuring another to supply or export goods or provide services; or anything done under a contract which includes the lending of money or provision of other financial assistance.

The type of goods and services which may be controlled extends to dual use goods and services which could be used in ancillary activities in support or in the development of WMD programs. They may include goods used to construct or maintain facilities or equipment, or to operate machinery or equipment.

What can you do to ensure goods or services are not contributing to a WMD program?

Prior to undertaking a transaction that may involve goods or services which could be used in a WMD program, you should conduct your own checks with the intention of removing any belief or suspicion that the transaction may contribute to a WMD program. We have developed and published several documents that are useful tools to help you set up an internal compliance program within your organisation, as well as questionnaires and checklists for your clients and yourself that help you in performing these checks. You can access these documents at http://www.defence.gov.au/ExportControls/InternalCompliance.asp.

As a minimum, we suggest that you:

  1. Assess the utility of your goods, services or technology in terms of whether they may be used in, or assist with, a WMD program.
  2. Undertake checks on the parties to the transaction to determine possible links to a WMD program.
    • Does the destination country have a WMD Program?
      Does the end-user country definitely, probably or possibly have a WMD program or delivery system program? You should conduct some research on WMD and proliferation topics. This website has a number of references you may find useful, including the Australia's Non-Proliferation Initiatives page and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 page.
    • Are the consignee and end-user bona-fide and do they genuinely need the goods or service?
      There are various check lists available to help you assess the bona-fides of the consignee or end-user. Our website provides you with guidance on how to detect suspicious procurement approaches, as well as links to lists of entities that are listed by both the Australian Government and foreign governments as being known to be, or suspected of being, involved in the procurement of goods for WMD programs. There are also private companies and commercial providers that can conduct checks for a fee.

If you believe or suspect that a transaction you are about to enter into may result in the goods or services being used in a WMD program then it is an offence to proceed with the transaction without a permit issued by the Minister for Defence, or their delegate. There are significant penalties that may be imposed if you are convicted of an offence against the WMD Act.

What types of goods and services may be used in a WMD program?

Table 1 below lists some common, and recent, examples of goods and services which could be used in WMD programs. These goods and services demonstrate how seemingly innocuous dual-use items can be used by a WMD program.

How do we help you to assess if the goods or services may be used in a WMD program?

If you believe or suspect that your transaction may be for a WMD program, you can either:

  • submit a completed Application to Export Controlled Goods to us, to apply for a WMD permit; or
  • write to us and request advice as to whether the Minister for Defence believes or suspects the transaction will or might contribute to a WMD program.

If you are unsure as to whether your transaction may contribute to a WMD program, you should request an assessment of your goods or services from us by submitting a completed Application to Export Controlled Goods and Technology form.

You should attach technical specifications and/or brochures that accurately describe the goods listed on the forms. Where possible, you should also submit any information on the consignee or end user and their intended use of the goods or services.

Case Study

Export of corrosion resistant pumps

A foreign chemical production company has approached an Australian manufacturer to purchase corrosion-resistant pumps. The pumps are made from a metal alloy and contain a special coating that makes them highly resistant to chemical damage. The pumps would be suited to the operating requirements described by the foreign company.

The Australian company already knows the pumps are not regulated by the DSGL, but as this is a first time customer they decide to conduct further enquiries. They learn that the chemical company is government-owned, and that the country is suspected by the international community of developing a covert chemical weapons program.

The Australian company should submit an Application to Export Controlled Goods and Technology form to DEC. The export of otherwise uncontrolled goods, where there are grounds for believing or suspecting they will or may be used in WMD, is a criminal offence.

Are you affected by the WMD Act?

If you are an Australian citizen, a person who normally resides in Australia, or a body incorporated in Australia or an external Territory, then you are bound by the WMD Act. If you provide goods or services either within Australia, or outside of Australia, then you should exercise caution in any transaction to ensure that these are not destined for use in a WMD program.

How do we assess if goods or services might be used in a WMD program?

Our assessment of applications, and other transactions referred for assessment, will result in one of three outcomes:

  • a Control Status letter that the goods or services are not controlled by the WMD Act
  • a Permit to proceed with the transaction
  • a Notice prohibiting the transaction

The assessment of whether goods or services might be used in a WMD program is complex and often involves sensitive information which cannot be disclosed for national security reasons. Within fifteen (15) working days of receiving a complete application, we will conduct an assessment of the goods and services. If a preliminary view is formed that the goods and/or services might contribute to a WMD program, we will write to you advising you of this, otherwise you will be issued with advice that the goods and services are not controlled by the WMD Act.

If we form the preliminary view that the goods or services might be used in a WMD program, we will consult widely to assess the case. We will refer the matter to other government agencies and draw upon expert advice from teams with a diverse range of academic and specific experience in related industries. We may also call upon relevant industry experts to provide advice on cases.

The assessment of your case will examine:

  • any linkages between the proposed transaction and a WMD program
  • the technical utility of the goods in a WMD program
  • the impact on a WMD program, if the goods or
    services were to be used in a WMD program
  • whether the facts of the case meet the legal threshold
    for prohibition under the Act

We will write to you and explain the nature of our concerns, and provide you with an opportunity to present any other information that you consider relevant.

Prior to finalising the assessment, we will consult with a range of involved parties, including the Department of Foreign Affairs and Trade, and the Department of the Prime Minister and Cabinet. If the assessment is that the goods and services will not contribute to a WMD program you will be issued with that advice and can proceed with the transaction.

The decision to prohibit the export or supply of goods, or the provision of services, can only be made by the Minister for Defence. Detailed advice is provided to aid the Minister in deciding to issue a Prohibition Notice.

What happens if your export is stopped by the Australian Border Force?

The Australian Border Force manages the security and integrity of Australia's borders by working closely with other government and international agencies to detect and deter unlawful movement of goods and people across the border.

The Australian Border Force screen the movement of cargo across the border using a range of intelligence, targeting and profiling techniques and will refer exports to us for assessment to determine if the goods are controlled by the WMD Act.

We will conduct an assessment of the goods using the same process as for an application. During the assessment process we may contact you to discuss the circumstances of the export and to seek further information on the transaction. During the assessment process, The Australian Border Force may hold the goods pending our assessment.

If we assess that the goods cannot be used in a WMD program, we will advise the Australian Border Force, and they will make a decision on whether to release the goods for export.

We will inform you if our preliminary assessment is that the goods may be used in a WMD program. We will then continue our assessment of the export following the same process used for applications.

Case Study

Provision of training

An Australian citizen is attending an international conference on nuclear physics when they are approached by another attendee. The Australian is asked if they would consider providing consultancy advice. The Australian later finds out that the advice is for scientists who are working on improving the civilian nuclear capability in a country that is also known to be developing a military nuclear capability.

The Australian company should submit an Application to Export Controlled Goods and Technology form to DEC. The consultancy advice, where there are grounds for believing or suspecting the advice will or may be used to assist a WMD, is a criminal offence.

What is a permit?

A WMD permit may be issued in circumstances where the Minister for Defence believes or suspects that the goods or services will or may assist a WMD program, but the Minister is satisfied that the supply or export of the goods or services would not be contrary to Australia's international or treaty obligations or national interest. A permit may be unconditional or subject to conditions and can be revoked if circumstances change.

What is a Prohibition Notice?

A Prohibition Notice is a formal written notification to you from the Minister for Defence, which sets out the evidence relied on in arriving at the decision that the transaction(s) will or may assist a WMD program. The Minister will provide as much information as possible to explain the Notice. If the Minister has relied on classified information and that information cannot be released to you, you will be advised of this in the reasons accompanying the Notice. The Notice will advise which types of transaction(s) are prohibited and a list of entities with whom you cannot transact.

A Prohibition Notice remains in force for twelve (12) months, unless revoked by the Minister.

What penalties may apply if you contravene the WMD Act?

There are offences for supplying or exporting goods, or providing services, if you know or believe that the goods or services may be used in a WMD program, and you do not have permission to do so.

It is an offence under the WMD Act to execute a transaction that has been prohibited by the Minister for Defence. It is also an offence to fail to comply with conditions specified in a notice.

You may be imprisoned for a period of up to eight (8) years if convicted for an offence against the WMD Act.

What is forfeiture of goods?

Goods that are exported or supplied, or attempted to be exported or supplied, in contravention of the WMD Act are forfeited to the Commonwealth.

An authorised person may, without warrant, seize any forfeited goods and take them before a court of summary jurisdiction. The court may decide to condemn the goods, which results in the goods being destroyed, or dealt with in another manner as determined by the Minister for Defence.

Can you appeal against a Prohibition Notice?

You may seek a review under the Administrative Decisions (Judicial Review) Act 1977 where you are aggrieved by the decision, conduct or failure to make a decision. The grounds on which a review may be sought under the Act are set out in sections 5, 6 and 7 of the Act. The grounds on which a decision may be reviewed go to the lawfulness, and not the merits, of a decision.

Further information on the Act and the grounds on which a review may be sought can be found on the Attorney-General's Department website at www.ag.gov.au.

In addition to the Administrative Decisions (Judicial Review) Act, the WMD Act gives the Minister for Defence the authority to revoke a Notice once it has been issued. This would only occur in exceptional cases where additional compelling information is provided that was not originally considered by the Minister in arriving at the decision to issue a Prohibition Notice.

At the end of the 12 month period, the Minister may either renew the Prohibition Notice for a further period of 12 months, or the Notice will lapse. If the Notice has lapsed and you decide you want to undertake the transaction at this time, you are encouraged to contact us to discuss the matter.

Can you be compensated if a Prohibition Notice is issued?

There is no provision under the WMD Act for compensation if the Minister for Defence makes the decision to prohibit the supply or export of goods, or the provision of services.

For more information on the WMD Act please contact us.

Table 1

Some common dual-use items and services that can be used in, or assist with, a WMD program
Dual-use item Commercial use Potential WMD use Nuclear Missile Chemical Biological Services
High-precision machine tools Manufacturing automotive and aircraft parts Fabrication of nuclear explosive device components & centrifuges Yes Yes No No No
Heat and corrosion resistant Aluminium alloys Manufacturing aerospace components Fabrication of nuclear explosive device components & centrifuges Yes Yes No No No
Controlling flash units Used in medical instruments, high-speed photography industrial photochemistry Fabrication of nuclear explosive device components Yes Yes No No No
Fibrous or filamentary materials Manufacturing composite materials Fabrication of nuclear explosive device components & centrifuges Yes Yes No No No
Casein Produce baby formula Growth medium No No No Yes No
Castor Beans Produce biodiesel Production of ricin No No No Yes No
Spray drying equipment Used to produce dehydrated food or paint pigments Production of biological warfare agent No No No Yes No
Drug aerosolisation equipment Production of inhalable drugs such as anti-asthmatics,
insulin and steroid treatments
Production of biological warfare agent No No No Yes No
Corrosion protection systems Protective equipment at a petroleum production facility Protect equipment at a chemical warfare agent production facility No No Yes No No
Filling machines Filling at a biopesticide project Filling chemical warfare agent storage and/or weapons systems No No Yes No No
Gas and fluid modelling software Ordered for a HAZMAT project Modelling chemical (or biological) agent dispersal for military scenarios No No Yes Yes No
Spray equipment for solid particles Used for agricultural and pesticide products Used for dispersion of chemical (or biological) warfare agents No No Yes Yes No
Compact pilot plant Used for flexible production of specialty chemicals in the food industry Reconfigured for chemical warfare agent production No No Yes No No
Ferrous metals in ingot or bar form Machining into turbines Fabrication of missile components Yes Yes No No No
Electrical connectors Parts for wiring systems in a commercial helicopter fleet Missile guidance and control systems No Yes No No No
Stepper motors Upgrades to a factory production line Guidance systems on missiles No Yes No No No
Ball-bearing units Manufacturing components for commercial and private aircraft Manufacturing missile guidance units No Yes No No No
Heat resistant composite materials Producing oven doors Thermal management in missiles No Yes No No No
Architectural design Plans for a high-containment research laboratory Plans used for a biological warfare research laboratory No No No Yes Yes
Stem cell facilities Medical research & disease treatments Equipment applicable to small-scale biological warfare research No No No Yes No
Cell Cultures Production of vaccines or commercial proteins Medium-large scale production of biological warfare agents No No No Yes No
Proprietary image-processing algorithm Agricultural environment analysis Strategic targeting and data collection No No No No Yes
A course in remote sensing For environmental science analysis Strategic targeting and data collection No No No No Yes
Customs DNA primers or genetic analysis Used in a diagnostics laboratory Biological warfare agent development No No No Yes Yes
Dual-use item Commercial use Potential WMD use Nuclear Missile Chemical Biological Services

Click here to go to the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 page.

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