It is important to be aware of the requirements under the legislation (including conditions on a permit/licence), any exceptions / exemptions and the penalties, which may apply for not meeting those requirements before undertaking any controlled activities. If there is a suspicion of non-compliance, a voluntary disclosure must be made.
A breach of a permit under these 3 new permit types can result in serious penalties such as issuance of infringements through to criminal prosecution.
From 1 March 2025, the compliance transition period ends for the 3 new offences and penalty provisions will be in effect. Those prosecuted for new offences may face a penalty of up to 10 years imprisonment or a fine up to 2,500 penalty units ($782,500) for the:
- supply of Defence and Strategic Goods (DSGL) technology in Australia to a foreign person (s10A) (the deemed export offence)
- certain supplies of DSGL goods or DSGL technology from outside Australia to another place outside of Australia or to a foreign person (s10B) (the re-export offence)
- provision of DSGL services to foreign persons or entities (s10C).
Defence Export Controls continues to engage with regulated entities to inform and support their understanding of their obligations and remain compliant for the transfer of DSGL goods or technology.
Customs Act
Under the Customs Act 1901 (Customs Act), it is an offence to unlawfully export goods listed in the Defence and Strategic Goods List (DSGL), and to export goods not listed in the DSGL which are subject to a prohibition notice. Applicable penalties may apply (refer to the Customs Act 1901 and Customs (Prohibited Exports) Regulations 1958).
Defence Trade Controls Act
The Defence Trade Controls Act 2012 creates offences and penalties for the following activities.
- Intangible supply of DSGL technology (both within and outside of Australia) without a permit unless exceptions or exemptions apply or in contravention of a condition on the permit.
- Intangible supplying DSGL technology in contravention of a prohibition notice.
- Supply of DSGL technology in Australia to a foreign person where exceptions do not apply.
- Certain Supplies of DSGL goods or technology from outside of Australia where exceptions do not apply.
- Provision of DSGL services outside Australia where exception do not apply.
- Publishing technology listed in Part 1 of the DSGL without a permit unless exceptions or exemptions apply or in contravention of a condition on the permit.
- Brokering goods or technology listed in Part 1 of the DSGL without a permit or in contravention of a permit condition.
- Brokering goods or technology listed in Part 2 of the DSGL without a permit or in contravention of a permit condition, where the broker knows, is reckless or negligent as to whether the goods or technology may be for a military end-use or Weapons of Mass Destruction (WMD) program.
- Brokering DSGL technology in contravention of a notice or a condition specified in a notice.
Weapons of Mass Destruction Act
Under the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act), it is an offence to engage in the following actions without a permit or in contravention of a permit condition.
- Supplying goods which the person believes or suspects, on reasonable grounds, will or may be used in a WMD program.
- Exporting uncontrolled goods which the person believes or suspects, on reasonable grounds, will or may be used in a WMD program.
- Providing services which the person believes or suspects will or may assist a WMD program.
- Supplying or exporting goods or providing services in contravention of a prohibition notice or a condition specified in a prohibition notice.
Non-compliance relating to sanctions
Please note that an export may be subject to United Nations Security Council or Australian Autonomous Sanctions. More information on sanctions, including non-compliance with sanctions, is available on the Department of Foreign Affairs and Trade website.
Criminal Code Act
Under section 136.1 of the Criminal Code Act 1995, any person who makes a false or misleading statement in an application for a permit or certificate. Penalties are set out in the Criminal Code Act 1995.