If Defence, as part of its preliminary assessment, identifies potential risks to Australia’s security, defence or international relations arising from a permit application, Defence will write to and give the applicant an opportunity to respond and provide any further information relevant to their application as part of the procedural fairness process.

Any submissions from the applicant will be considered by Defence and, where the application is referred to the Minister for Defence, will be provided as part of the advice to the Minister for consideration. Only the Minister for Defence can refuse to grant a permit or prohibit an export or other activity.

Procedural fairness

When Defence assesses that it would recommend to the Minister for Defence that  a permit should be refused to be granted, or an activity be prohibited, a procedural fairness process is undertaken. This enables the applicant to respond to Defence’s preliminary assessment. Procedural fairness requires a fair and proper process to be followed in making a decision. This means that:

  • there is an opportunity for applicants to make submissions in relation to the application before a decision is made, and to have them taken into consideration; and
  • the decision is made free from bias.

Defence will issue a letter to the applicant outlining the reasons why it proposes to recommend the Minister refuse to grant a permit, or prohibit the export or other activity. The applicant is then given 15 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 or material to previous specialist assessments. 

If, at the conclusion of this process, Defence still assesses that it will recommend that the permit should be refused or activity be prohibited, it will provide the Minister for Defence with the relevant documentation including the applicant’s response to the procedural fairness process.

When  a permit is refused or activity is prohibited, Defence provides the Minister’s reasons for the refusal or prohibition to the applicant, to the extent that the reasons disclosed do not prejudice Australia’s security, defence or international relations. The notice will also include information regarding their review rights.

Exporters/suppliers who do not understand or agree with a decision to impose or vary conditions on, refuse to grant, or revoke a permit can send an email to exportcontrols@defence.gov.au for further information. They are also able to seek a review of such decisions. The available review mechanism will depend on the specific decision, and who made that decision. Common available review mechanisms include:

Internal review

Where the disputed decision was made by a delegate, review of the decision by the Minister may be requested. 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, written notice of the outcome, including the Minister’s reasons for their decision will be provided.

A written request must be made to the Minister to apply for an internal review. The request must set out the reasons for applying for the review, and be submitted to the Minister within 30 days of receiving the 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 – external merits review through the Administrative Review Tribunal (ART) may be sought. Like internal review, merits review involves the ART 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 physical application form), and submitted to the ART within 28 days of receiving the notice of the disputed decision although extensions may be requested. Application fees apply.

Further information on merits review can be found on the ART's website.

Judicial review

All decisions – whether original permit refusal or prohibition decisions, or review decisions by either the Minister or the ART – are subject to judicial review by the courts. This form of review differs significantly from merits review. Unlike merits review, it can only assess the legality of the decision and can only be sought to rectify errors of law.

Further information on judicial review, including procedures and timeframes for filing an application, can be found on the Federal Court of Australia's website. It is recommended to seek independent legal advice if considering this avenue of review.

Other avenues

The following can be contacted if the above mechanisms are not suitable: