In order to strengthen Australia’s export controls, the Defence Trade Controls Act 2012 put in place new measures to control the intangible supply of DSGL items. An ‘intangible supply/export’ occurs when a person in Australia supplies or provides a person located outside of Australia with access to DSGL technology by electronic means, for example by email, fax, telephone, video conferencing, or providing access to electronic file, or via presentations.
The controls do not apply when supply occurs wholly within Australia, however Australian Sanctions Laws will apply. The Defence Trade Controls Act includes provisions regulating:
- intangible supply: intangible supply is when a person in Australia provides controlled technology in a non-physical form (i.e. electronically) to another person outside Australia. Some examples include supply via email, fax or providing a password access to electronic files
- publication of Part one (or Military List) DSGL controlled goods and technology: publication includes publishing on the internet, to the public or to a section of the public. Once controlled military technology is published in the public domain, it is no longer possible to regulate who has access to it. Publishing controlled military technology can put sensitive and potentially dangerous information into the wrong hands, with limited prospect of regulating that information
- brokering: brokering occurs when a person, acting as an agent or intermediary, arranges the transfer of controlled items between two or more persons located outside Australia, and receives a benefit. Benefits include money or non-cash payments for the brokering activity, or if the brokering activity advances their political, religious or ideological cause.
The Defence Trade Controls Act was amended in April 2015. Significant changes in the Act include:
- an exemption for publication (or pre-publication activities) of controlled dual-use (Part 2) DSGL technology;
- an exemption for most verbal supplies of dual-use DSGL controlled technology;
- the ability to obtain broad DEC permits at the project level, which may be up to five years.
Below is a summary of the permit requirements under the Act.
| Controlled military technology | Controlled dual-use technology | |
|---|---|---|
| Intangible Supply | Permit required | Permit required |
| Publishing | Approval by Minister for Defence or delegate required | No permit required |
| Brokering | Permit required | No permit required (unless military end-use) |
How will the DTCA affect individual researchers?
It is important to note that the Defence Trade Controls Act is not designed to stop or restrict the transfer of information or research, it just introduces the requirement to seek permission/permit from DEC before the intangible supply of controlled goods and technology takes place.
In practice this will mean that researchers will need to understand the control status of items and technology relating to the DSGL. Furthermore, researchers will need to be aware of their obligations under the Defence Trade Controls Act and obtain a permit for intangible supply or tangible export before a transaction takes place.
It should also be noted that permits are issued for named individuals and that the named individuals are thus personally liable for compliance with permit conditions and any other requirements of the Act. Penalties for non-compliance include imprisonment and fines. In addition, any goods or technology that is supplied in contravention of the DTCA may be forfeited to the Commonwealth.