Australia regulates the export and supply of military and dual-use goods and technology, including parts and components thereof and related materials and equipment transported to an external territory or nation.
Australian Defence Export Controls are administered under a number of pieces of legislation.
The Defence Trade Controls Act 2012 (DTC Act) controls the supply, publication and brokering of tangible and intangible military and dual-use goods and technologies. The DTC Act allows the Minister for Defence to either permit or prohibit the supply, publication and/or brokering of goods and technologies listed on the Defence and Strategic Goods List (DSGL).
Prior to issuing a permit, the Minister for Defence must consider certain assessment criteria that are listed in the both the DTC Act and the Defence Trade Controls Regulations 2013 to assess whether the export would prejudice Australia’s security, defence or international relations.
An independent review of the DTC Act (the Review) was completed in 2018 and in 2019, Defence began implementing all nine recommendations arising from the Review. See Defence Trade Controls Act Review for more information.
Customs Act 1901 – Section 112BA (Military End-Use Provisions)
Section 112BA of the Customs Act 1901 authorises the Minister for Defence to prohibit the export of non-DSGL listed goods that may contribute to a military end-use that would prejudice Australia’s security, defence or international relations. Defence notifies exporters by issuing a prohibition notice.
Customs (Prohibited Exports) Regulations 1958 – Regulation 13(E-EK)
Regulations 13E-EK of the Customs (Prohibited Exports) Regulations 1958 control the export of military and dual-use goods and technology from Australia.
The Regulations allow the Minister for Defence to permit the export of goods and technology listed on the DSGL.
Before issuing a permit, the Minister for Defence must consider whether the export would prejudice Australia’s security, defence or international relations, having regards to criteria listed in the legislation.
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995
The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act) gives the Minister for Defence the power to prohibit the supply or export of goods and/or the provision of services that may assist or be used in a WMD program.
The WMD Act also authorises the Minister for Defence to issue a permit to supply or export the relevant goods or the provision of services if it aligns with Australia’s international and/or treaty obligations or the national interest.
WMD End-Use
Defence’s export controls extends to any good, technology or provision of services that could be used in, or assist, a weapons of mass destruction (WMD) program. A WMD program is any plan for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons.
Provision of services includes but is not limited to (other than exporting or supplying goods):
- conferring a benefit
- granting a right or privilege
- providing a facility
- otherwise assisting someone (e.g. providing training or acting as a consultant or advisor).
If you suspect a transaction may result in goods, software or technology being used in a WMD program, you must not proceed with the activity and contact DEC to discuss the basis for your suspicion.
WMD Programs
Defence’s export controls extends to any good, technology or provision of services that could be used in, or assist, a weapons of mass destruction (WMD) program. A WMD program is any plan for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons.
Some examples of the provision of services include:
- working as an employee, consultant or adviser
- providing training
- providing technological information or know-how
- procuring another to supply or export goods or provide services.
If you suspect a transaction may result in goods, software or technology being used in a WMD program, you must not proceed with the activity and contact DEC to discuss the basis for your suspicion.
International export control regimes
Australia is a Participating State in a number of multilateral export control regimes. These regimes are committed to establishing best practice and consistency in the export control frameworks of participating states. Australia participates in four major multilateral export control regimes.
The Australia Group was established in 1985 to provide best practice guidance, international consistency and coordination of controls for transfers of dual-use chemicals and equipment that could be used in chemical and biological weapons.
The Missile Technology Control Regime (MTCR) was established in 1987 to provide best practice guidance, international consistency and coordination in efforts to prevent the proliferation of unmanned systems (e.g. missiles and unmanned aerial vehicles) capable of delivering weapons of mass destruction. The MTCR covers the control of transfers of missile equipment, complete rocket systems, unmanned air vehicles, and related technology for those systems capable of carrying a 500kg payload at least 300 kilometres. The MTCR also covers missile or related systems capable of carrying smaller chemical and biological payloads.
The Nuclear Suppliers Group (NSG) was established in 1974 to provide best practice guidance, international consistency and coordination of controls for transfers of nuclear material, equipment and technologies that could contribute to a nuclear weapons program in a non-nuclear weapon state.
The Wassenaar Arrangement was established in 1995 to provide best practice guidance, international consistency and coordination of controls for transfers of conventional weapons and military and dual-use goods and technologies.
Australia is a signatory to and supporter of a number of other arms control and non-proliferation agreements and initiatives. Australia’s non-proliferation initiatives are coordinated by the Department of Foreign Affairs and Trade.
Links to relevant agreements and initiatives:
United Nations Conventional Arms Register
United Nations Security Council Resolution 1540 – Non-proliferation of weapons of mass destruction
United Nations Security Council Resolution 1673 – Non-proliferation of weapons of mass destruction
The United States controls the export, import and use of a number of inherently military items, dual- commercial and military items, and nuclear equipment and material, both within its borders and extra-territorially (this is separate and extra to required Australian export controls).
- Bureau of Alcohol, Tobacco and Firearms
- Bureau of Industry and Security
- Commerce Control List (CCL)
- Directorate of Defense Trade Controls
- Export Administration Regulations (EAR)
- International Traffic in Arms Regulations (ITAR)
- Nuclear Regulatory Commission
- United States Department of Energy
- United States Munitions List (USML)
- United States Munitions Import List (USMIL)
The Treaty between the Government of Australia and The Government of the United States of America Concerning Defense Trade Cooperation (the Treaty) provides an exemption to the requirement to obtain a license in certain circumstances. However, a number of requirements exist before this exemption can be used, including membership in the "Australian Community.”
Defence Export Controls (DEC) manages the Treaty on behalf of the Australian Government. See the Trade Treaty page for further information.
Information provided to DEC in an export application is handled in accordance with the Privacy Act 1988 and the Archives Act 1983. Employees of Commonwealth agencies, including the Department of Defence, also have obligations and duties under the Public Service Act 1999 and Public Service Regulations 1999, and the Public Governance, Performance and Accountability Act 2013, to treat your information in a secure and confidential manner.
We protect your information through a series of measures, including:
- procedural: appropriate handling, transmission and access, restricted to suitably cleared employees
- physical: secure storage and access to work areas
- technical: firewalls and encryption
We adhere to the 'need to know' principle, where official information is only made available to Defence employees and contractors who need to use or access the information to do their work. To reduce the risk of unauthorised disclosure, we ensure that only those persons with a proven 'need to know' and an appropriate security clearance gain access to your information.
As part of our decision making processes, your information may be shared with other Australian government agencies, including, but not limited to:
- the Department of Home Affairs
- the Department of Foreign Affairs and Trade
- the Department of Industry, Science, Energy and Resources
- the Australian Criminal Intelligence Commission
- law enforcement agencies
- intelligence agencies.
Your information may also be disclosed as required or authorised by law: for example, in response to a court subpoena requiring the Department of Defence to produce certain documents, or where the information is reasonably necessary for a law enforcement activity.
We may provide information about proposed or past exports, as part of Australia's reporting and consultation obligations to our international regime partners. These disclosures would be in relation to specific technologies or transactions, and would be based upon national security concerns within Australia or impacting our international regime partners. We will not disclose your personal or business information beyond these circumstances without your consent, or unless authorised by law.
Our export application forms include a Privacy Statement which outlines how Defence will use your information and to whom it will be disclosed. Defence's privacy policy is available on the Defence website.
If you have any questions regarding our information handling and privacy procedures, please feel free to contact us on 1800 661 066 or via email.
If you do not understand or agree with a decision to impose conditions on, refuse, or revoke a permit, please contact us. You are also able to seek a review of the decision. A range of review mechanisms apply to decisions made by the Defence Minister or a delegate. The review mechanism that is available will depend on the specific decision. When an adverse decision is made, we will notify you in writing of the decision, provide reasons for the decision, and advise you of your review rights.
Review mechanisms that may be available include:
- internal review within the Department of Defence;
- external merits review through the Administrative Appeals Tribunal; and
- judicial review.
Internal Review
Where the disputed decision was made by a delegate, you can request that the Minister review the decision. The Minister will personally review the information relevant to the making of the decision, and then affirm, vary or set aside the decision. Once the review is complete, you will receive written notice of the outcome, including the Minister’s reasons for their decision.
To apply for an internal review, you must make a written request to the Minister. The request must set out your reasons for applying for the review, and be given to the Minister within 30 days after you have received notice of the disputed decision. No fees apply for internal review requests.
External Merits Review
Where the disputed decision was made by the Minister – that is, decisions made originally by the Minister and decisions following internal review by the Minister – you can seek external merits review through the Administrative Appeals Tribunal (AAT). Like internal review, merits review involves the AAT reviewing all the relevant facts, and then affirming, varying or setting aside the disputed decision.
Applications must be made in writing (via email or letter, or completing either an online or paper application form), and submitted to the AAT within 28 days after you have received the disputed decision. Application fees apply.
For more information on merits review, please refer to the AAT's website.
Judicial Review
All decisions – whether original export decisions or review decisions by either the Minister or the AAT – are subject to judicial review by the courts. This form of review differs significantly from merits review. Unlike merits review, it assesses only the legality of the decision and can only be sought to rectify errors of law.
For more information on judicial review, including on procedures and timeframes for filing an application, please refer to the Federal Court of Australia's website.
Other Avenues
If the above mechanisms are not suitable to address your concern, you can also contact:
- the Commonwealth Ombudsman
- the Office of the Australian Information Commissioner
- the Human Rights and Equal Opportunity Commission
Whenever the Minister or a delegate makes an adverse decision, those affected by the decision are entitled to procedural fairness. Procedural fairness requires a fair and proper process to be followed in making a decision. This means that you are entitled to:
- the opportunity to make submissions in relation to your application before a decision is made, and to have them taken into consideration; and
- the decision being made free from bias.
The information below describes our measures to ensure procedural fairness is afforded when administering export control legislation.
When Defence assesses that it would recommend to the Minister for Defence that an export or other activity should be refused or prohibited, a procedural fairness process is undertaken. This enables the applicant to respond to Defence’s preliminary assessment.
Defence will issue a letter to the applicant outlining the reasons why it proposes to recommend the Minister refuse or prohibit the export or other activity. The applicant is then given 10 business days from the date of the letter to respond to the content. If the applicant requires additional time to formulate the response, extensions are considered.
The applicant’s response may be referred for further specialist advice if it contains new information material to previous specialist assessments.
If, at the conclusion of this process, Defence still assesses that it will recommend the export or other activity be refused or prohibited, it will provide the Minister for Defence with the relevant documentation including the applicant’s response to the procedural fairness process.
When an export is refused or prohibited, Defence provides the Minister’s reasons for the refusal or prohibition to the applicant, to the extent permitted by security classifications.