Defence Trade Controls Act (DTCA)
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 defence and strategic goods list technologies.
The Defence Trade Controls Act includes provisions regulating:
- intangible supply of technology relating to defence and strategic goods defined in the DSGL, such as supply by electronic means;
- the prohibition of publication of controlled technology; and
- brokering the supply of DSGL goods and technology.
Controlled goods & technology - intangible export
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.
These provisions in the Defence Trade Controls Act are aimed at stopping technology that can be used in conventional and weapons of mass destruction from getting into the wrong hands. The provisions apply equally to the defence, industry, university and research sectors.
Provisions enacted by the Defence Trade Controls Act include regulation of brokering the supply of DSGL goods and technology and the intangible supply/export of DSGL technology, such as supply by electronic means and publication of DSGL technology.
The controls do not apply when supply occurs wholly within Australia.
DTCA 2012 offence provisions
The Defence Trade Controls Act creates criminal offences for the intangible supply, publication and brokering of goods and technologies listed on the DSGL without a permit.
Individuals failing to obtain a permit face a maximum penalty of 10 years imprisonment or 2,500 penalty units (approx $425,000 in fines), or both. This penalty is consistent with the penalty in the Customs Act 1901 for tangibly exporting DSGL goods or technology without authorisation.
This penalty is consistent with the penalty in the Customs Act 1901 for tangibly exporting DSGL goods or technology without authorisation.
Summary of the permit requirements under the Customs & Defence Trade Controls Act. Controlled military technology
(DSGL Part 1)
Controlled dual-use technology
(DSGL Part 2)
Approval by Minister of Defence or his delegate required
No permit required
No permit required (unless military end-use)
There are a number of exemptions under the DTCA where a permit is not required for the supply and publication of dual-use technologies (Part 2 listed items on the DSGL).
Exemption for verbal supply
Verbal supply of DSGL-listed software and technology does not require a permit. This includes telephone conversations, video conferences and live streaming. Face-to-face discussions, either wholly within Australia or wholly outside of Australia, are not regulated and do not require a permit.
Please note that you will need a permit if you are orally supplying a person access to technology (e.g. providing a password) or the orally-supplied technology will be used in a Weapons of Mass Destruction program or for a military end-use.
Exemption for basic scientific research
Basic scientific research means: "... experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective."
If your research is applied or experimental developmental it may still be affected by the DTCA.
Exemption for work in the public domain
In the public domain means: "... technology or software which has been made available without restrictions upon its further dissemination (copyright restrictions do not remove "technology" or "software" from being "in the public domain").
Exemption for medical equipment
The controls in the dual-use list (Part 2 of the DSGL) are not intended to subject medical equipment to export controls.
Exemption for publication
A person does not need approval to publish dual‐use DSGL technology (Part 2 of the DSGL). However, the Minister for Defence may issue a notice prohibiting publication of certain dual‐use DSGL technology, if the publication would prejudice Australia’s security, or international obligations.
Difference between supply and publication
To determine whether the activity is a supply or a publication under the Act, a person should ask: Will the DSGL technology be made available 'in the public domain'?
If the DSGL technology is published by placing it 'in the public domain', even if it can only be accessed by a payment, it will be a publication. This includes websites available to the public and journals which permit anyone to subscribe.
If access to the DSGL technology is controlled or restricted to particular users or groups, it has not been placed 'in the public domain' and it will be a 'supply'. This includes closed conference websites where only members from a select organisation(s) or group can access the conference papers.
How will the DTCA 2012 affect staff/students?
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 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 (online DSGL tool).
Staff/students need to be aware of their obligations under the Defence Trade Controls Act and obtain a permit for intangible supply before a transaction takes place.
It is also important that permits are obtained for the tangible supply of controlled DSGL and technology where required.
Utilise training materials and tools including a decision making tree to assist in determining whether your activities are subject to export controls
All University of Adelaide staff, students, title holders and visitors must ensure that they identify all relevant legislative and compliance requirements of the university and also of regulatory and advisory bodies in relation to their research, teaching, or experimentation.
Adelaide staff, students, title holders and visitors must also undertake the necessary steps to meet their obligations with regard to obtaining the necessary clearances prior to commencing their work.