US Defence Export Controls
US Re-export Controls on Defence Articles, Defence Services and Technical Data
Regardless of the mechanism by which US defence technology (defence articles, services and technical data) is transferred to Australia, access to the technology is conditional upon the recipient accepting certain fundamental obligations, namely:
- US defence technology must not be used for any purpose other than authorised under the original agreement unless US State Department approval has been obtained.
- It must not be transferred by any means (including by email, fax or in discussion) from the nominated end-user to another company or individual in Australia or overseas, unless US State Department approval has been obtained.
- Products manufactured from or using US defence technology must not be transferred by any means to another company or individual in Australia or overseas, unless US State Department approval has been obtained.
Against this background, Australian companies (or Government Agencies) proposing to transfer US defence technology (including technical manuals) to Australian or overseas companies must seek US State Department approval before doing so. Depending on the circumstances, US retransfer approval can be achieved in a number of ways, including adding “Additional Foreign Consignees” to hardware licences; amending TAAs, including by sublicensing; or by seeking retransfer approval as permitted under US export control regulations (the ITAR).
Initial advice on the appropriate approach should be sought in the first instance from Mr Steve Hyland, Director US Export Control Systems, phone 0416 265 037.
The final option mentioned above, the ITAR retransfer approach, is most commonly used for seeking retransfer approval for FMS-origin defence articles and technical data to Australian companies (eg, to provide through life support). It is subject to lengthy US interagency and legal review, and can take more than six months to complete. Not all requests are approved. Assistance in developing ITAR retransfer applications can be obtained from the Director Defence Export Control Office.