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Brokering Frequently Asked Questions

Why does Australia control brokering activities?

Australia's export control system aims to stop 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.

Brokering controls have been introduced to close gaps in Australia's export controls laws and to implement Australia's international obligations; including, under the Wassenaar Arrangement. The Wassenaar Arrangement is a primary international arms control and counter-proliferation group of 41 countries.

Do I have to receive payment for the brokering arrangement to be controlled?

Not necessarily. The brokering arrangement is controlled under the Act if you receive money or a non-cash benefit for the brokering activity, but it is also controlled if you are advancing a political, religious or ideological cause. Non-cash benefit means property or services in any form other than money.

Is an employee's income a benefit?

The benefit has to be derived by the person (individual or organisation) who is doing the brokering. For example, if a company is arranging for Part 1 (Munitions List) DSGL goods to be moved from one place overseas to another, the company would need to receive a benefit for that brokering activity. A salary received by a company employee for doing their job, which may include brokering is not a benefit received by the company. So you need to consider the benefit received at the company level if it is the company that is brokering.

Is the possibility of a future sale considered to be a benefit received for the brokering activity?

The money or non-cash benefit must be directly attributable to the particular arrangement. If the person were to undertake arrangements that might result in receiving money as a result of a future sale - this would not be brokering as the person is not receiving money for the particular arrangement activity, but rather, might receive money for a sale at a later time.

Does brokering have to involve a formal agreement or commercial arrangement to be controlled?

No, brokering can be controlled if it involves negotiating transactions, contracts or commercial arrangements that are both formal and informal. Informal arrangements can include verbal agreements.

Does the Defence Trade Controls Act 2012 apply to brokering of controlled technology in both tangible and intangible form?

Yes, the Act controls brokering of controlled goods or technology regardless of whether it is a tangible export (e.g. physical goods or software stored on a laptop) or an intangible supply (e.g. by email or fax).

Does brokering have to be from one country to another country to be controlled?

No. The Act also controls brokering of a 'supply' within a single country, unless there is a relevant exception.

The Act applies to arranging the supply of goods or technology from a place outside Australia to another place outside Australia. A place can include a vehicle, vessel, aircraft, an area of water or a fixed or floating structure or installation of any kind.

Are there any exceptions to the controls on brokering?

Yes. Brokering is not controlled if the 'supply' of the DSGL goods, software or technology is from a listed country . Also excluded are Australian citizens, residents or companies who conduct all the brokering activities while located in a listed country. Countries that the exceptions apply to are listed in this legislative instrument.

There is also an exception for brokering goods and technology from a place in a country to another place in the same country and that country is a listed country.

A member of the Australian Defence Force, an Australian Public Service employee, ASIO or ASIS employee, Australian Federal Police or State or Territory police member who is brokering in the course of his or her duties is exempt from these controls under the Defence Trade Controls Act 2012 and do not need a permit.

It is important to note that these exceptions do not apply where the DSGL goods, software or technology are being brokered are for a weapons of mass destruction program. You must apply for a permit in these circumstances.

How do I know if the Defence Trade Controls Act 2012 applies to me?

Contact the compliance area within your organisation (if applicable), otherwise you can use the Online DSGL Tool to determine if the Defence Trade Controls Act 2012 applies to your activity. If you are still unsure, you can contact DEC for assistance and apply for advice.