Commonwealth: Defence Trade Controls Act 2012 (Cth)

Defence Trade Controls Act 2012 No. 153, 2012 Compilation No. 9 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Defence Trade Controls Act 2012 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Simplified outline of this Act 4 Definitions 5 US Defence Articles 5A Arranging for persons to supply goods or DSGL technology 5AA Australian Military Sales Program items 5B Constitutional supplies and constitutional DSGL services 5C Relevant supplies and relevant DSGL services 6 Crown to be bound 7 Extension to external Territories 8 Extension to things outside Australia 9 Severability—additional effect of Act Part 2—Dealings in items in the Defence and Strategic Goods List Division 1A—Simplified outline of this Part 9A Simplified outline of this Part Division 1—Primary offences 10 Offence—supply of DSGL technology from in Australia to outside Australia 10A Offence—supply of DSGL technology in Australia to foreign person 10B Offence—certain supplies of DSGL goods or DSGL technology from outside Australia 10C Offence—provision of DSGL services outside Australia 11 Permits for the purposes of sections 10 to 10C 12 Changing permit conditions 13 Breaching permit conditions 14 Minister's notice prohibiting activities 14A Offence—publishing DSGL technology in Part 1 of the Defence and Strategic Goods List 14B Minister's notice prohibiting publication of DSGL technology 14C Secretary's notice prohibiting publication of DSGL technology Division 2—Brokering offences 15 Offence—arranging supplies in relation to the Defence and Strategic Goods List 15A Minister's notice prohibiting arranging of supplies in relation to the Defence and Strategic Goods List 15B Minister's notice requiring a permit for arranging of supplies in relation to Part 2 of the Defence and Strategic Goods List 16 Permits for purposes of section 15 or 15B 17 Changing permit conditions 18 Breaching permit conditions Division 3—Registered brokers 19 Applying to be a registered broker 20 Registering brokers 21 Renewing registration 22 Changing registration conditions 23 Cancelling the registration of a broker 24 Register of Brokers 25 Extended meaning of conviction Division 4—Other matters 25A Deciding if things prejudicial to the security, defence or international relations of Australia Part 3—Defense Trade Cooperation Treaty Division 1—Simplified outline of this Part 26 Simplified outline of this Part Division 2—Membership of the Australian Community 27 Approval of bodies corporate as members of the Australian Community 28 Approval conditions 29 Suspending an approval 30 Cancelling an approval Division 3—Main offences 31 US Defence Articles listed in the Defense Trade Cooperation Munitions List 32 US Defence Articles exempt from the scope of the Defense Trade Cooperation Treaty Division 4—Ministerial directions 33 Ministerial directions—avoiding prejudice to the security, defence or international relations of Australia 34 Ministerial directions—suspension or cancellation of approvals Division 5—Other matters 35 Transition to the Defense Trade Cooperation Treaty 36 Defense Trade Cooperation Munitions List Part 4—Monitoring powers Division 1—Preliminary 37 Simplified outline of this Part 38 No limit on section 71 Division 2—Appointment of authorised officers and issue of identity cards 39 Appointment of authorised officers 40 Identity cards Division 3—Powers of authorised officers 41 Authorised officer may enter premises 42 Monitoring powers of authorised officers 43 Authorised officer may require person to answer questions or produce documents 44 Self‑incrimination Division 4—Obligations of authorised officers 45 Announcement before entry 46 Occupier to be informed of rights and responsibilities Division 5—Occupier's rights and responsibilities 47 Occupier entitled to observe search 48 Occupier to provide authorised officer with facilities and assistance Division 6—Other matters 49 Tampering etc. with things secured 50 Persons assisting authorised officers 51 Compensation for damage to electronic equipment Part 5—Information‑gathering powers 51A Simplified outline of this Part 52 Secretary may obtain information and documents 53 Copying documents—compensation 54 Secretary may inspect and copy original documents 55 Secretary may retain copies of documents 56 Secretary may retain original documents 57 Self‑incrimination Part 6—Record‑keeping 57A Simplified outline of this Part 58 Keeping and retaining records 59 Production of records 60 Secretary may inspect and copy records 61 Secretary may retain records 62 Self‑incrimination Part 7—Review of decisions 62A Simplified outline of this Part 63 Reviewable decisions 64 Internal review by Minister of reviewable decisions 65 Review by the Administrative Review Tribunal Part 8—Other matters 65A Simplified outline of this Part 66 Applications under Part 2 or 3 67 Notices, permits and approvals under this Act 68 Disclosure of reasons for decisions 69 Disclosure of information and documents 70 Injunctions 71 Forfeiture 72 Evidential certificates 73 Delegation by Minister 74 Delegation by Secretary 74A Strengthened Export Controls Steering Group 74B Reviews of operation of Act 75 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to regulate dealings in certain goods, services and technologies, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Defence Trade Controls Act 2012. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 13 November 2012 2. Sections 3 to 9 A single day to be fixed by Proclamation. 6 June 2013 A Proclamation must not specify a day earlier than the day the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation done at Sydney on 5 September 2007 enters into force. (see F2013L00903) However, if the provision(s) do not commence within the period of 2 years beginning on the day the Treaty enters into force, they commence on the day after the end of that period. The Minister must announce by notice in the Gazette the day on which the Treaty enters into force. 3. Section 10 The day after the end of the period of 12 months beginning on the day the Defence Trade Controls Amendment Act 2015 receives the Royal Assent. 2 April 2016 4. Sections 11 and 12 A single day to be fixed by Proclamation. 16 May 2015 A Proclamation must not specify a day earlier than the day the Treaty enters into force. However, if the provision(s) do not commence within the period of 2 years beginning on the day the Treaty enters into force, they commence on the day after the end of that period. 5. Sections 13 to 15 The day after the end of the period of 12 months beginning on the day the Defence Trade Controls Amendment Act 2015 receives the Royal Assent. 2 April 2016 6. Sections 16 and 17 At the same time as the provision(s) covered by table item 4. 16 May 2015 7. Section 18 The day after the end of the period of 12 months beginning on the day the Defence Trade Controls Amendment Act 2015 receives the Royal Assent. 2 April 2016 8. Sections 19 to 25 A single day to be fixed by Proclamation. 16 May 2015 A Proclamation must not specify a day earlier than the day the Treaty enters into force. However, if the provision(s) do not commence within the period of 2 years beginning on the day the Treaty enters into force, they commence on the day after the end of that period. 9. Sections 26 to 57 A single day to be fixed by Proclamation. 6 June 2013 A Proclamation must not specify a day earlier than the day the Treaty enters into force. (see F2013L00903) However, if the provision(s) do not commence within the period of 2 years beginning on the day the Treaty enters into force, they commence on the day after the end of that period. 10. Subsections 58(1) and (2) The day after the end of the period of 12 months beginning on the day the Defence Trade Controls Amendment Act 2015 receives the Royal Assent. 2 April 2016 11. Subsections 58(3) to (8) and sections 59 to 74 At the same time as the provision(s) covered by table item 9. 6 June 2013 12. Sections 74A and 75 The day this Act receives the Royal Assent. 13 November 2012 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Simplified outline of this Act This Act regulates dealings in items listed in Part 1 or 2 of the Defence and Strategic Goods List and in items covered by the Defense Trade Cooperation Treaty between Australia and the United States of America. Part 1 of the Defence and Strategic Goods List covers military goods and technologies and non‑military lethal goods and technologies and Part 2 of that list covers dual‑use goods and technologies. There are offences for persons who do the following not in accordance with a permit or approval: (a) supply DSGL goods or DSGL technology; (b) provide DSGL services; (c) arrange for other persons to supply DSGL goods or to supply DSGL technology; (d) publish DSGL technology in Part 1 of the Defence and Strategic Goods List. There are provisions implementing the Defense Trade Cooperation Treaty. If a person holds an approval as a member of the Australian Community referred to in that treaty, authorised officers may monitor the person's compliance with this Act. The Secretary can obtain from a person information or a document that is relevant to the operation of this Act. There are record‑keeping obligations for persons who hold permits under this Act or who hold approvals as members of the Australian Community referred to in the Defense Trade Cooperation Treaty. Various decisions under this Act are subject to internal review by the Minister or review by the Administrative Review Tribunal. This Act also deals with miscellaneous matters, such as injunctions, forfeiture, delegations and regulations. 4 Definitions (1) In this Act: arranges: see section 5A. Article 3(1) US Defence Article has the meaning given by section 5. Note: See also section 35 (about transition to the Defense Trade Cooperation Treaty). Article 3(3) US Defence Article has the meaning given by section 5. Note: See also section 35 (about transition to the Defense Trade Cooperation Treaty). ASD means the Australian Signals Directorate. ASIO means the Australian Security Intelligence Organisation. ASIS means the Australian Secret Intelligence Service. Australia, when used in a geographical sense, includes the external Territories. Australian Community facility means a facility covered by Article 4(1)(a) of the Defense Trade Cooperation Treaty. Australian Community member means: (a) a body corporate that holds an approval under section 27; or (b) a person covered by Article 4(1)(b) of the Defense Trade Cooperation Treaty; or (c) a person: (i) who is employed, or is engaged under a contract for services, by a body corporate that holds an approval under section 27; and (ii) who satisfies the requirements prescribed by the regulations for the purposes of this subparagraph. Australian Military Sales Program item means DSGL goods or DSGL technology specified in a determination in force under section 5AA. Australian person means: (a) the Commonwealth, a State or a Territory; or (b) an authority of the Commonwealth, a State or a Territory; or (c) an individual who is an Australian citizen; or (d) an individual who is a permanent resident of Australia; or (e) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. authorised officer means a person appointed as an authorised officer under section 39. constitutional DSGL services: see subsection 5B(2). constitutional supply: see subsection 5B(1). covered security clearance means a security clearance that: (a) is given: (i) by the Australian Government Security Vetting Agency or by another Commonwealth agency that is authorised or approved by the Commonwealth to issue security clearances; or (ii) by or on behalf of the Government of Canada, New Zealand, the United Kingdom or the United States of America, or an authority of any of those governments; and (b) is of a kind prescribed by the regulations for the purposes of this definition. Defence and Strategic Goods List means the document: (a) formulated by the Minister, and published, as mentioned in paragraph 112(2A)(aa) of the Customs Act 1901; and (b) known as the Defence and Strategic Goods List; as amended by the Minister and in force from time to time. defence services, in relation to goods or in relation to technology relating to goods, means the giving of assistance (including training) in relation to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarisation, destruction, processing or use of the goods or technology. Defense Trade Cooperation Munitions List means the document made under section 36, as amended by the Minister and in force from time to time. Defense Trade Cooperation Treaty means the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation done at Sydney on 5 September 2007, as amended from time to time. Note: In 2012, the text of the Treaty was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). DSGL goods means goods within the scope of the Defence and Strategic Goods List, but does not include goods constituting technology, as defined in that list, that has been produced in the course of, or for the purposes of, fundamental research. DSGL services means the giving of assistance (including training) in relation to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarisation, destruction, processing or use of DSGL goods that are, or DSGL technology that is, within the scope of Part 1 of the Defence and Strategic Goods List. DSGL technology means a thing that: (a) either: (i) is technology, as defined in the Defence and Strategic Goods List, not including such technology that has been produced in the course of, or for the purposes of, fundamental research; or (ii) is software, as defined in that list; and (b) is within the scope of that list. foreign person means a person other than an Australian person. fundamental research means basic or applied research conducted in circumstances where the results of the research: (a) are intended for public disclosure, or would ordinarily be published or shared broadly; and (b) are not subject to any restrictions on disclosure (however imposed) for purposes connected with the security or defence of Australia or any foreign country. goods has the same meaning as in the Customs Act 1901. Implementing Arrangements means the Implementing Arrangements (having effect from time to time) referred to in Article 14 of the Defense Trade Cooperation Treaty. Note: In 2012, the text of the Implementing Arrangements was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). incorporated goods has the meaning given by section 5. manager of a body corporate means an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body's affairs. member of the United States Community means a person or body covered by Article 5(1) or (2) of the Defense Trade Cooperation Treaty. military end‑use: goods or DSGL technology is or may be for a military end‑use if the goods or DSGL technology is or may be for use in relation to operations, exercises or other activities conducted by an armed force or an armed group, whether or not the armed force or armed group forms part of the armed forces of the government of a foreign country. monitoring powers has the meaning given by section 42. non‑cash benefit means property or services in any form other than money. offence against this Act includes the following: (a) an offence against section 6 of the Crimes Act 1914 that relates to this Act; (b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to this Act; (c) an offence that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code and that relates to this Act. original goods has the meaning given by section 5. permanent resident of Australia means a person who is a permanent resident within the meaning of the Australian Citizenship Act 2007. person assisting an authorised officer has the meaning given by section 50. premises includes the following: (a) a structure, building, caravan, vehicle, vessel or aircraft; (b) a place (whether or not enclosed or built on); (c) a part of a thing referred to in paragraph (a) or (b). publish means publish on the internet or otherwise. registered broker means a person in respect of whom a registration is in force under Division 3 of Part 2. relevant DSGL services: see subsection 5C(2). relevant supply: see subsection 5C(1). Secretary means the Secretary of the Department. supply: (a) includes supply by way of sale, exchange, gift, lease, hire or hire‑purchase; and (b) in relation to DSGL technology—includes provide access to DSGL technology. technology relating to goods means: (a) information relating to the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of the goods (including information in the form of blueprints, drawings, photographs, plans, instructions, specifications, algorithms or documentation); or (b) software relating to the goods; other than information specified in an instrument under subsection (2). Weapons of Mass Destruction program means a plan or program for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons. (2) The Minister may, by legislative instrument, specify information for the purposes of the definition of technology in subsection (1). 5 US Defence Articles Article 3(1) US Defence Article (1) Article 3(1) US Defence Article means goods: (a) the initial movement of which is from a member of the United States Community to an Australian Community member, or to an Australian Community facility, for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and (b) that are listed in Part 1 of the Defense Trade Cooperation Munitions List immediately before the start of that movement; and (c) that are not listed in Part 2 of the Defense Trade Cooperation Munitions List immediately before the start of that movement. (2) Goods incorporating an Article 3(1) US Defence Article within the meaning of subsection (1) are also an Article 3(1) US Defence Article. (3) The modification of an Article 3(1) US Defence Article in any way does not affect the status of the goods concerned as an Article 3(1) US Defence Article. Article 3(3) US Defence Article (4) Article 3(3) US Defence Article means goods: (a) acquired by, and delivered to, the Government of Australia as mentioned in Article 3(3) of the Defense Trade Cooperation Treaty; and (b) that are listed in Part 1 of the Defense Trade Cooperation Munitions List at the time of that delivery; and (c) that are not listed in Part 2 of the Defense Trade Cooperation Munitions List at the time of that delivery. (5) Goods incorporating an Article 3(3) US Defence Article within the meaning of subsection (4) are also an Article 3(3) US Defence Article. (6) The modification of an Article 3(3) US Defence Article in any way does not affect the status of the goods concerned as an Article 3(3) US Defence Article. Original goods (7) Original goods means goods that are: (a) an Article 3(1) US Defence Article within the meaning of subsection (1); or (b) an Article 3(3) US Defence Article within the meaning of subsection (4). Incorporated goods (8) Incorporated goods means goods that are: (a) an Article 3(1) US Defence Article within the meaning of subsection (2); or (b) an Article 3(3) US Defence Article within the meaning of subsection (5). Note: See also section 35 (about transition to the Defense Trade Cooperation Treaty). 5A Arranging for persons to supply goods or DSGL technology For the purposes of this Act, a person (the broker) arranges for another person to supply goods or DSGL technology if and only if: (a) the broker acts as an agent of a person, or acts as an intermediary between 2 or more persons, in relation to the supply; and (b) either: (i) the broker receives, or is to receive, any money or non‑cash benefit for so acting; or (ii) the broker so acts for the purpose of advancing a political, religious or ideological cause. 5AA Australian Military Sales Program items The Minister may, by legislative instrument, determine that specified DSGL goods or DSGL technology is an Australian Military Sales Program item. 5B Constitutional supplies and constitutional DSGL services Constitutional supplies (1) A supply of DSGL goods or DSGL technology is a constitutional supply if: (a) the supply is made by, or on behalf of, or to: (i) a constitutional corporation; or (ii) a body corporate that is incorporated in a Territory; or (iii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or (b) the supply is made by, or on behalf of, or to: (i) the government of a foreign country or of part of a foreign country; or (ii) an authority of the government of a foreign country; or (iii) an authority of the government of part of a foreign country; or (c) the supply is made by or to an alien (within the meaning of paragraph 51(xix) of the Constitution); or (d) the supply occurs wholly or partly outside Australia; or (e) the supply is made in the course of constitutional trade or commerce; or (f) the supply occurs wholly or partly within a Territory; or (g) the supply is made by way of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution). Constitutional DSGL services (2) DSGL services are constitutional DSGL services if: (a) the DSGL services are provided by, or on behalf of, or to: (i) a constitutional corporation; or (ii) a body corporate that is incorporated in a Territory; or (iii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or (b) the DSGL services are provided by, or on behalf of, or to: (i) the government of a foreign country or of part of a foreign country; or (ii) an authority of the government of a foreign country; or (iii) an authority of the government of part of a foreign country; or (c) the DSGL services are provided by or to an alien (within the meaning of paragraph 51(xix) of the Constitution); or (d) the DSGL services are provided wholly or partly outside Australia; or (e) the DSGL services are provided in the course of constitutional trade or commerce; or (f) the DSGL services are provided wholly or partly within a Territory; or (g) the DSGL services are provided by way of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution). Definitions (3) In this section: constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional trade or commerce means trade or commerce: (a) between Australia and places outside Australia; or (b) among the States; or (c) within a Territory, between a State and a Territory or between 2 Territories. 5C Relevant supplies and relevant DSGL services Relevant supplies (1) A supply of DSGL goods or DSGL technology is a relevant supply unless: (a) the supply is covered by subsection (1A), (1B) or (1C); and (b) any requirements prescribed by the regulations for the purposes of this paragraph that apply in relation to the supply are satisfied. (1A) This subsection covers a supply of DSGL goods or DSGL technology if: (a) the supply is to any of the following: (i) an Australian person; (ii) a citizen or permanent resident of the United Kingdom or United States of America; (iii) a body corporate incorporated by or under a law of the United Kingdom or United States of America, or of part of either of those countries; (iv) the Government of the United Kingdom or United States of America, or the government of part of either of those countries; (v) an authority of the Government of the United Kingdom or United States of America, or the government of part of either of those countries; and (b) either: (i) the supply is to, or occurs wholly at, a place in Australia, the United Kingdom or the United States of America; or (ii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, the person to whom the access is provided is in Australia, the United Kingdom or the United States of America; and (c) the DSGL goods or DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) excluded by a determination in force under subsection (3). (1B) This subsection covers a supply of DSGL goods or DSGL technology if: (a) the DSGL goods or DSGL technology is: (i) an Australian Military Sales Program item; or (ii) any other DSGL goods or DSGL technology not excluded by a determination in force under subsection (3); and (b) the supply is made in accordance with an agreement or arrangement between Australia and one or more foreign countries, including an agreement, arrangement or understanding between a Minister and an official or authority of one or more foreign countries. (1C) This subsection covers a supply of DSGL technology if: (a) the supply is to any of the following: (i) a citizen or permanent resident of a foreign country that is specified in an instrument under subsection 15(4A); (ii) a body corporate incorporated by or under a law of a foreign country that is specified in an instrument under that subsection, or of part of such a country; (iii) the government of a foreign country that is specified in an instrument under that subsection, or of part of such a country; (iv) an authority of the government of a foreign country that is specified in an instrument under that subsection, or the government of part of such a country; and (b) any of the following applies: (i) the place from which the supply is made and the place to which the supply is made are both in Australia; (ii) the supply occurs wholly at a place in Australia; (iii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, both the person providing the access and the person to whom the access is provided are in Australia; and (c) the DSGL goods or DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) excluded by a determination in force under subsection (3). Relevant DSGL services (2) DSGL services are relevant DSGL services unless: (a) the provision of the DSGL services is covered by subsection (2A) or (2B); and (b) any requirements prescribed by the regulations for the purposes of this paragraph that apply in relation to the provision of the DSGL services are satisfied. (2A) This subsection covers the provision of DSGL services if: (a) the DSGL services are provided to any of the following: (i) an Australian person; (ii) a citizen or permanent resident of Canada, New Zealand, the United Kingdom or the United States of America; (iii) a body corporate incorporated by or under a law of Canada, New Zealand, the United Kingdom or the United States of America, or of part of such a country; (iv) the Government of Canada, New Zealand, the United Kingdom or the United States of America, or the government of part of such a country; (v) an authority of the Government of Canada, New Zealand, the United Kingdom or the United States of America, or the government of part of such a country; and (b) the DSGL services are received at a place in Australia, Canada, New Zealand, the United Kingdom or the United States of America; and (c) the DSGL goods or DSGL technology to which the DSGL services relate is not: (i) an Australian Military Sales Program item; or (ii) excluded by a determination in force under subsection (3). (2B) This subsection covers the provision of DSGL services if: (a) the DSGL goods or DSGL technology to which the DSGL services relate is: (i) an Australian Military Sales Program item; or (ii) any other DSGL goods or DSGL technology not excluded by a determination in force under subsection (3); and (b) the DSGL services are provided in accordance with an agreement or arrangement between Australia and one or more foreign countries, including an agreement, arrangement or understanding between a Minister and an official or authority of one or more foreign countries. Excluded DSGL goods or DSGL technology (3) The Minister may, by legislative instrument, determine that specified DSGL goods or DSGL technology is excluded for the purposes of subsections (1A), (1B), (1C), (2A) and (2B). Definitions (4) In this section: place includes: (a) a vehicle, vessel or aircraft; and (b) an area of water; and (c) a fixed or floating structure or installation of any kind. 6 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. 7 Extension to external Territories This Act extends to every external Territory. 8 Extension to things outside Australia Except so far as the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia. 9 Severability—additional effect of Act (1) Without limiting its effect apart from this section, this Act also has the effect it would have if its application were limited to: (a) giving effect to: (i) the Defense Trade Cooperation Treaty; or (ii) any international obligation of Australia arising otherwise than under the Defense Trade Cooperation Treaty; or (b) matters external to Australia; or (c) matters of international concern; or (d) the defence of Australia; or (e) things done, or omitted to be done, by constitutional corporations; or (f) things done, or omitted to be done, in the course of constitutional trade or commerce; or (g) things done using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or (h) things done by, or in relation to, aliens (within the meaning of paragraph 51(xix) of the Constitution). (2) In this section: constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. constitutional trade or commerce means trade or commerce: (a) between Australia and places outside Australia; or (b) among the States; or (c) within a Territory, between a State and a Territory or between 2 Territories. Part 2—Dealings in items in the Defence and Strategic Goods List Division 1A—Simplified outline of this Part 9A Simplified outline of this Part There are offences for persons who do the following not in accordance with a permit or approval: (a) supply DSGL goods or DSGL technology; (b) provide DSGL services outside Australia; (c) arrange for other persons to supply DSGL goods or to supply DSGL technology; (d) publish DSGL technology in Part 1 of the Defence and Strategic Goods List. The offences regarding supplies deal with the following: (a) supplies of DSGL technology from a person in Australia to a person outside Australia; (b) supplies of DSGL technology from a person in Australia to a foreign person; (c) supplies of DSGL goods that were, or DSGL technology that was, previously exported or supplied from Australia, from a foreign country to another foreign country or within the same foreign country. Certain activities involving persons with a specified connection to Australia, the United Kingdom or the United States of America, and in some cases certain other countries, or activities involving arrangements between countries, are excluded from being covered by the offences. The Minister may issue notices prohibiting persons from doing the following on grounds relating to the security, defence or international relations of Australia: (a) supplying DSGL technology; (b) publishing DSGL technology; (c) arranging for other persons to supply DSGL goods or to supply DSGL technology. The Secretary may issue interim prohibition notices for publishing DSGL technology. There are offences for contravening a notice issued by the Minister or Secretary. Chapter 2 of the Criminal Code applies to all offences against this Act. Registered brokers are able to obtain permits to arrange for other persons to supply DSGL goods or to supply DSGL technology. There is a process for becoming a registered broker. Division 1—Primary offences 10 Offence—supply of DSGL technology from in Australia to outside Australia (1) A person (the supplier) commits an offence if: (a) the supplier supplies DSGL technology to another person; and (b) either: (i) the supply is from a place in Australia to a place outside Australia; or (ii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, the supplier is in Australia and the other person is outside Australia; and (ba) the supply is a constitutional supply; and (bb) the supply is a relevant supply; and (c) either: (i) the supplier does not hold a permit under section 11 authorising the supply; or (ii) the supply contravenes a condition of a permit that the supplier holds under section 11; and (d) there is no notice in force under subsection 14(1) in relation to the supplier and the supply. Penalty: Imprisonment for 10 years or 2,500 penalty units, or both. Absolute liability (1A) Absolute liability applies to paragraph (1)(ba). Application to supplies to employees etc. (1B) For the purposes of subsection (1), if the supplier is not an individual and supplies DSGL technology to an officer or employee of the supplier, the supply is taken to be a supply by the supplier to another person (that other person being the officer or employee). Exceptions (2) Subsection (1) does not apply if: (a) the supply is of DSGL technology in relation to original goods; and (b) the supply is by an Australian Community member or by a member of the United States Community; and (c) the supply is to an Australian Community member or a member of the United States Community; and (d) the supply is for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and (e) at the time of the supply, the original goods are listed in Part 1 of the Defense Trade Cooperation Munitions List; and (f) at the time of the supply, the original goods are not listed in Part 2 of the Defense Trade Cooperation Munitions List. Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. (3) Subsection (1) does not apply if: (a) the DSGL technology is supplied by or on behalf of a person or body to an officer or employee of the person or body; and (b) the officer or employee is: (i) an Australian citizen or permanent resident of Australia; or (ii) a citizen or permanent resident of a foreign country that is specified in an instrument under subsection 15(4A); and (c) the supply occurs in the course of the officer or employee's duties as an officer or employee. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. (3A) Subsection (1) does not apply if: (a) the DSGL technology is supplied by or to a person who is a member of the Australian Defence Force, an APS employee, an employee of ASIO, an employee of ASIS, an employee of ASD, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and (b) the supply occurs in the course of the person's duties as such a person; and (c) the DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (3A): see subsection 13.3(3) of the Criminal Code. (3B) Subsection (1) does not apply if: (a) the DSGL technology is supplied to a person who holds a covered security clearance; and (b) the DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (3B): see subsection 13.3(3) of the Criminal Code. (4) Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code. Definition (6) In this section: place includes: (a) a vehicle, vessel or aircraft; and (b) an area of water; and (c) a fixed or floating structure or installation of any kind. 10A Offence—supply of DSGL technology in Australia to foreign person (1) A person (the supplier) commits an offence if: (a) the supplier supplies DSGL technology to another person; and (b) the other person is a foreign person; and (c) the supply is a constitutional supply; and (d) the supply is a relevant supply; and (e) any of the following applies: (i) the place from which the supply is made and the place to which the supply is made are both in Australia; (ii) the supply occurs wholly at a place in Australia; (iii) if the supply is the provision of access to DSGL technology—at the time of the provision of access, both the supplier and the other person are in Australia; and (f) either: (i) the supplier does not hold a permit under section 11 authorising the supply; or (ii) the supply contravenes a condition of a permit that the supplier holds under section 11; and (g) there is no notice in force under subsection 14(1) in relation to the supplier and the supply. Penalty: Imprisonment for 10 years or 2,500 penalty units, or both. Absolute liability (2) Absolute liability applies to paragraph (1)(c). Application to supplies to employees etc. (3) For the purposes of subsection (1), if the supplier is not an individual and supplies DSGL technology to an officer or employee of the supplier, the supply is taken to be a supply by the supplier to another person (that other person being the officer or employee). Exceptions (4) Subsection (1) does not apply if: (a) the supply is of DSGL technology in relation to original goods; and (b) the supply is by an Australian Community member or by a member of the United States Community; and (c) the supply is to an Australian Community member or a member of the United States Community; and (d) the supply is for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and (e) at the time of the supply, the original goods are listed in Part 1 of the Defense Trade Cooperation Munitions List; and (f) at the time of the supply, the original goods are not listed in Part 2 of the Defense Trade Cooperation Munitions List. Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code. (6) Subsection (1) does not apply if: (a) the DSGL technology is supplied by or to a person who is a member of the Australian Defence Force, an APS employee, an employee of ASIO, an employee of ASIS, an employee of ASD, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and (b) the supply occurs in the course of the person's duties as such a person; and (c) the DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code. (7) Subsection (1) does not apply if: (a) the DSGL technology is supplied to a person who holds a covered security clearance; and (b) the DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3) of the Criminal Code. (7A) Subsection (1) does not apply if: (a) the DSGL technology is supplied to a person who is producing, or is to produce, one or more components of DSGL goods; and (b) the supply is made in connection with the production of the components; and (c) any requirements prescribed by the regulations for the purposes of this paragraph are satisfied. Note: A defendant bears an evidential burden in relation to the matter in subsection (7A): see subsection 13.3(3) of the Criminal Code. (8) Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (8): see subsection 13.3(3) of the Criminal Code. Definitions (9) In this section: place includes: (a) a vehicle, vessel or aircraft; and (b) an area of water; and (c) a fixed or floating structure or installation of any kind. 10B Offence—certain supplies of DSGL goods or DSGL technology from outside Australia (1) A person (the supplier) commits an offence if: (a) the supplier supplies (the current supply) DSGL goods, other than firearms, or DSGL technology to another person; and (aa) the DSGL goods or DSGL technology is within the scope of: (i) Part 1 of the Defence and Strategic Goods List; or (ii) the Sensitive List of Dual‑use Goods and Technologies in Part 2 of the Defence and Strategic Goods List; or (iii) the Very Sensitive List of Dual‑use Goods and Technologies in Part 2 of the Defence and Strategic Goods List; and (b) the current supply is a constitutional supply; and (c) the current supply is a relevant supply; and (d) any of the following applies: (i) the current supply occurs wholly at a place outside Australia; (ii) the current supply is from a place outside Australia and is to a place outside Australia; (iii) if the current supply is the provision of access to DSGL technology—at the time of the provision of access, the supplier is outside Australia and the other person is outside Australia; and (e) the supplier obtained the DSGL goods or DSGL technology as a direct or indirect result of the export or supply (the earlier export or supply) of the DSGL goods or DSGL technology: (i) from a place in Australia to a place outside Australia; or (ii) if the earlier export or supply was the provision of access to DSGL technology—in circumstances where, at the time of the provision of access, the person providing access was in Australia and the person to whom access was provided was outside Australia; and (f) either of the following (whether or not obtained) was required in relation to the earlier export or supply: (i) permission (however described) under regulations made under the Customs Act 1901; (ii) a permit given under section 11 of this Act; and (g) either: (i) the supplier does not hold a permit under section 11 authorising the current supply; or (ii) the current supply contravenes a condition of a permit that the supplier holds under section 11; and (h) there is no notice in force under subsection 14(1) in relation to the supplier and the current supply. Penalty: Imprisonment for 10 years or 2,500 penalty units, or both. Application to supplies to employees etc. (2) For the purposes of subsection (1), if the supplier is not an individual and supplies DSGL goods or DSGL technology to an officer or employee of the supplier, the supply is taken to be a supply by the supplier to another person (that other person being the officer or employee). Absolute and strict liability (3) Absolute liability applies to paragraph (1)(b). (4) Strict liability applies to paragraph (1)(f). Exceptions (5) Subsection (1) does not apply if: (a) the current supply is of: (i) goods that are an Article 3(1) US Defence Article; or (ii) goods that are an Article 3(3) US Defence Article; or (iii) DSGL technology in relation to original goods; and (b) the current supply is by an Australian Community member or by a member of the United States Community; and (c) the current supply is to an Australian Community member or a member of the United States Community; and (d) the current supply is for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and (e) at the time of the current supply, the following are listed in Part 1 of the Defense Trade Cooperation Munitions List: (i) if the supply is of original goods or DSGL technology in relation to original goods—the original goods; (ii) if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods; and (f) at the time of the current supply, the following are not listed in Part 2 of the Defense Trade Cooperation Munitions List: (i) if the supply is of original goods or DSGL technology in relation to original goods—the original goods; (ii) if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods. Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code. (6) Subsection (1) does not apply if, in relation to the current supply: (a) the DSGL goods or DSGL technology is supplied by or on behalf of a person or body to an officer or employee of the person or body; and (b) the officer or employee is: (i) an Australian citizen or permanent resident of Australia; or (ii) a citizen or permanent resident of a foreign country that is specified in an instrument under subsection 15(4A); and (c) the supply occurs in the course of the officer or employee's duties as an officer or employee. Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code. (7) Subsection (1) does not apply if, in relation to the current supply: (a) the DSGL goods or DSGL technology is supplied by or to a person who is a member of the Australian Defence Force, an APS employee, an employee of ASIO, an employee of ASIS, an employee of ASD, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and (b) the supply occurs in the course of the person's duties as such a person; and (c) the DSGL goods or DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3) of the Criminal Code. (8) Subsection (1) does not apply if, in relation to the current supply: (a) the DSGL goods or DSGL technology is supplied to a person who holds a covered security clearance; and (b) the DSGL goods or DSGL technology is not: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (8): see subsection 13.3(3) of the Criminal Code. (8A) Subsection (1) does not apply if the earlier export or supply, the current supply or any intervening supply of the DSGL goods or DSGL technology is to the person who originally produced the DSGL goods or DSGL technology. Note: A defendant bears an evidential burden in relation to the matter in subsection (8A): see subsection 13.3(3) of the Criminal Code. (8B) Subsection (1) does not apply if: (a) the DSGL goods or DSGL technology is within the scope of: (i) the Sensitive List of Dual‑use Goods and Technologies in Part 2 of the Defence and Strategic Goods List; or (ii) the Very Sensitive List of Dual‑use Goods and Technologies in Part 2 of the Defence and Strategic Goods List; and (b) any of the following applies: (i) the current supply occurs wholly at a place in a foreign country that is specified in an instrument under subsection 15(4A); (ii) the current supply is from or to a place in a foreign country that is specified in an instrument under subsection 15(4A); (iii) if the current supply is the provision of access to DSGL technology—at the time of the provision of access, the supplier or the other person mentioned in paragraph (1)(a) is in a foreign country that is specified in an instrument under subsection 15(4A). Note: A defendant bears an evidential burden in relation to the matter in subsection (8B): see subsection 13.3(3) of the Criminal Code. (8C) Subsection (1) does not apply if a period prescribed by the regulations for the purposes of this subsection, in relation to DSGL goods or DSGL technology of that kind, has elapsed since the day the earlier export or supply was made. Note: A defendant bears an evidential burden in relation to the matter in subsection (8C): see subsection 13.3(3) of the Criminal Code. (8D) Subsection (1) does not apply if: (a) the earlier export or supply was made in accordance with a permission or permit mentioned in paragraph (1)(f); and (b) the permission or permit was granted before the commencement of this section. Note: A defendant bears an evidential burden in relation to the matter in subsection (8D): see subsection 13.3(3) of the Criminal Code. (9) Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (9): see subsection 13.3(3) of the Criminal Code. Geographical jurisdiction (10) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1) of this section. Definitions (11) In this section: place includes: (a) a vehicle, vessel or aircraft; and (b) an area of water; and (c) a fixed or floating structure or installation of any kind. 10C Offence—provision of DSGL services outside Australia (1) A person (the provider) commits an offence if: (a) the provider provides DSGL services to another person; and (b) the other person is a foreign person; and (c) the DSGL services are constitutional DSGL services; and (d) the DSGL services are relevant DSGL services; and (e) the provider is an Australian person; and (ea) the provider provides the DSGL services at or from a place outside Australia; and (eb) the other person receives the DSGL services at a place outside Australia; and (f) either: (i) the provider does not hold a permit under section 11 authorising the provision of the DSGL services; or (ii) the provision of the DSGL services contravenes a condition of a permit that the provider holds under section 11; and (g) there is no notice in force under subsection 14(1) in relation to the provider and the provision of the DSGL services. Penalty: Imprisonment for 10 years or 2,500 penalty units, or both. Absolute liability (2) Absolute liability applies to paragraph (1)(c). Exceptions (2A) Subsection (1) does not apply if: (a) the DSGL services are provided by a person in circumstances where a foreign work authorisation (within the meaning of Part IXAA of the Defence Act 1903) that is in force authorises the person to perform work for, or on behalf of: (i) a military organisation (within the meaning of that Part) of a foreign country; or (ii) a government body (within the meaning of that Part) of a foreign country; and (b) the person provides the DSGL services in the course of performing the work authorised by the foreign work authorisation. Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code. (2B) Subsection (1) does not apply if: (a) the DSGL services are provided by a person in circumstances where a foreign work authorisation (within the meaning of Part IXAA of the Defence Act 1903) that is in force authorises the person to provide training to: (i) a military organisation (within the meaning of that Part) of a foreign country; or (ii) a government body (within the meaning of that Part) of a foreign country; and (b) the DSGL services provided solely consist of the training that is authorised by the foreign work authorisation. Note: A defendant bears an evidential burden in relation to the matter in subsection (2B): see subsection 13.3(3) of the Criminal Code. (3) Subsection (1) does not apply if: (a) the DSGL services are provided in relation to: (i) goods that are an Article 3(1) US Defence Article; or (ii) goods that are an Article 3(3) US Defence Article; or (iii) DSGL technology in relation to original goods; and (b) the DSGL services are provided by an Australian Community member or by a member of the United States Community; and (c) the DSGL services are provided to an Australian Community member or a member of the United States Community; and (d) the DSGL services are for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and (e) at the time of the provision of the DSGL services, the following are listed in Part 1 of the Defense Trade Cooperation Munitions List: (i) if the DSGL services are provided in relation to original goods or DSGL technology in relation to original goods—the original goods; (ii) if the DSGL services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods; and (f) at the time of the provision of the DSGL services, the following are not listed in Part 2 of the Defense Trade Cooperation Munitions List: (i) if the DSGL services are provided in relation to original goods or DSGL technology in relation to original goods—the original goods; (ii) if the DSGL services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. (4) Subsection (1) does not apply if: (a) the DSGL services are provided by or on behalf of a person or body to an officer or employee of the person or body; and (b) the officer or employee is a citizen or permanent resident of a foreign country that is specified in an instrument under subsection 15(4A); and (c) the provision of the DSGL services occurs in the course of the officer or employee's duties as an officer or employee. Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code. (5) Subsection (1) does not apply if: (a) the DSGL services are provided in support of a lawful supply of DSGL goods or DSGL technology; and (b) the DSGL services solely consist of training with respect to, or the performance of, maintenance relating to the DSGL goods or DSGL technology; and (c) the maintenance covered by the training, or which is performed, is limited to inspection, testing, calibration or repair (including overhaul, reconditioning and one‑to‑one replacement of any defective items, parts or components); and (d) the maintenance covered by the training, or which is performed, does not include any modification, enhancement, upgrade or other form of alteration or improvement that: (i) enhances the performance or capability of the DSGL goods or DSGL technology; and (ii) is not only an alteration or improvement in relation to the reliability or maintainability of the DSGL goods or DSGL technology. Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code. (6) Subsection (1) does not apply if: (a) the DSGL services are provided by or to a person who is a member of the Australian Defence Force, an APS employee, an employee of ASIO, an employee of ASIS, an employee of ASD, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and (b) the provision of the DSGL services occurs in the course of the person's duties as such a person; and (c) the DSGL services are not provided in relation to DSGL goods or DSGL technology that is: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code. (7) Subsection (1) does not apply if: (a) the DSGL services are provided to a person who holds a covered security clearance; and (b) the DSGL services are not provided in relation to DSGL goods or DSGL technology that is: (i) an Australian Military Sales Program item; or (ii) specified in a determination in force under subsection 5C(3); or (iii) prescribed by the regulations for the purposes of this subparagraph. Note: A defendan