Defence is committed to working with exporters to help them fulfil their obligations under Australia’s export control legislation
Exporters must:
- apply for approval from Defence before undertaking controlled activities (i.e. activities subject to Australia’s export controls)
- provide accurate information to Defence in the course of an application
- conduct activities in accordance with the terms of permits, licences or broker registrations issued by Defence
- handle, store and transfer goods in accordance with prescribed conditions
- maintain detailed and accurate records
- report transfers to Defence where required by a permit condition
- pre-notify via the My Australian Defence Exports(MADE) portal exports or supply if utilising the Australia, United Kingdom and United States licence-free environment
- advise Defence Export Controls of any changes in circumstances that may affect broker registrations, permits or licences.
Recordkeeping
Records are important in showing an audit trail of each activity that occurs under a permit, or under an exemption/exception. Accurate record keeping is fundamental to Australia's defence export controls legislative framework.
Obligations may arise depending on the type of activity, items or permit conditions.
The Defence Trade Controls Act 2012 and Defence Trade Controls Regulation 2013 do not prescribe the form the records must take, only the information that records must include.
Records must be retained for 5 years from the date of supply of the export, under the Defence Strategic Goods List (DSGL). These records must be retained in accordance with section 58 of the DTCA.
Defence can request a copy or production of records for inspection and retain these records under sections 58–61 of the DTCA.
Records must be kept for activities conducted:
- under a permit issued under section 11 of the DTCA
- under any DTCA exemption/exception
- by approval holders who are Approved Australian Community members for the purposes of the Australia-US Defence Trade Cooperation Treaty.
Failure to retain or produce records upon request (as required under the DTCA) may be an offence.
Exporter organisations
Permits require record keeping for:
- a description of the DSGL item supplied or DSGL services provided
- name of person(s) to whom the DSGL goods or technology were supplied, or services provided
- dates of activity
- unique identifier of permit.
Exemption/exception require record keeping for:
- a description of the DSGL item supplied or DSGL services provided
- country in which the DSGL goods, technology, or services were received.
Ensure the Export Declaration Number and Defence Export Controls permit numbers are recorded against the organisation’s activities, even if they’re conducted through a shipping agent.
For multi-shipment permits, record the number of items exported or supplied each time. This also ensures managing the quantity against the approved permit quantity.
All exporters lodging an Export Declaration must retain commercial documentation for 5 years as per the Customs Act 1901.
Brokers
Persons who hold a permit for brokering under section 16 of the DTCA must maintain certain records, including:
- a description of the DSGL goods or technology
- the unique identifier of the permit under which the broker arranged a supply
- the name of any person the broker arranges to supply DSGL goods or technology
- place at which the DSGL goods or technology are to be received by that person
- the date of any arrangement made under the permit
- the place the DSGL goods, technology and services were supplied from.
AUKUS pre-notification
Specific pre-notification obligations may apply for pre-notification requirements when using the Australia UK US exemption (i.e. AUKUS licence-free environment) to conduct an export under regulation 13E of the Customs (Prohibited Exports) Regulations 1958, or a supply under section 10 of the DTCA.
Pre-notification involves providing Defence Export Controls with certain information about the proposed activity before the activity is conducted. These pre-notification obligations only apply to a person who is doing one of the following activities under the AUKUS licence-free environment:
- export of DSGL goods, or goods containing DSGL technology, under regulation 13E of the Customs (Prohibited Exports) Regulations 1958
- supply DSGL technology under section 10 of the Defence Trade Controls Act 2012.
All other types of activities conducted under the AUKUS licence-free environment (e.g. section 10A, section 10B and section 10C activities) do not require pre-notification. If pre-notifications are not completed prior to conducting the activity (where required), this may be a potential breach. Pre-notifications should be submitted through the MADE portal.
Specific permit conditions
Some permits have specific conditions that have been imposed by Defence Export Controls to provide additional assurances, mitigate risks, or increase visibility of an entity’s export compliance. In some cases, this requires the permit holder to satisfy additional reporting obligations. Permit holders should ensure that they always carefully read and understand any conditions that have been imposed on their permit.
The legislative authority to impose permit conditions is under sub regulation 13E (6) of the Customs (Prohibited Exports) Regulations 1958 and subsection 11(7) of the Defence Trade Controls Act 2012.
Permit conditions can be modified if they are not being met or if the exportation would damage Australia’s international relations.