Compliance Framework
Compliance Driver
Defence Trade Controls Act 2012 (Cth)
Classification
Level 3
Centrally managed, local area(s) requirement.
Associated Legislation
Associated Standards
None
Associated Codes
None
Associated Information
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Administrative Information
Administrative Body
Defence Export Control Office (DECO)
Administrative Name
Administrative Address
Mailing Address
Department of Defence
R1-1-A037 PO Box 7901
CANBERRA BC ACT
Australia, 2610
Administrative Phone
1800 661 066
+61 2 626 67222
Administrative Email
exportcontrols@defence.gov.au
Administrative Website
http://www.defence.gov.au/ExportControls
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General Introduction
VC Compliance Delegate
Chris Armstrong, Deputy Vice-Chancellor Research
Compliance Coordinator
Bonnie Mayes, Research Governance and Compliance Officer
Business Units Impacted
Overview
The Defence Trade Control Act 2012 (the Act) is part of Australia’s export control measure which aims to stop goods and technology that can be used in chemical, biological and nuclear weapons, or military goods and technologies, from being transferred to individuals, states or groups of proliferation concern. As a member of international export control regimes (Wassenaar Arrangement), Australia is part of a global effort to regulate the export of items listed by these regimes, which have military or WMD applications.
Australia regulates the physical export of military and dual-use items listed by the international regimes, under Regulation 13E of the Customs (Prohibited Exports) Regulations 1958. However, there were significant gaps that have been closed by the Defence Trade Control Act 2012 (DTC Act). For example:
• If an Australian organisation physically exports a controlled virus, a licence is required under Regulation 13E (in addition to any biosafety obligations). However, if they email instructions on how to produce or enhance that virus, no permit is required, and the Australian Government has no visibility or control over the electronic export of this information, including whether it is potentially destined for a biological weapons program. The export of sensitive information in electronic or other non-physical form is referred to as intangible supply. As well as emails, other examples of intangible supply include supply via the internet and social media etc.
• If an Australian or a person in Australia were to arrange for weapons to be sent from one destination outside Australia to another destination outside Australia, no brokering permit is required, and the Australian Government has no visibility or control over this brokering activity, including whether it is potentially destined for uses that may abuse human rights.
The three main activities regulated by the DTC Act are:
• The intangible supply (transmission by non-physical means) of controlled technology from a person in Australia to a person outside Australia;
• Publishing controlled military technology; and
• Brokering controlled military goods and technology.
The Act separately implements the Defence Trade Cooperation Treaty between Australia and the United States of America.
UNE Representatives should contact the Compliance Coordinator (being the Export Controls Compliance Officer) above.Compliance Obligations
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Australian Community member under the Defense Trade Cooperation Treaty
Description
Section 28: If approved as a member of the Australian Community under the Defense Trade Cooperation Treaty, the University must comply with all conditions of that approval.
Section 31: If an approved Australian Community member, do not supply US Defence Articles or provide related defence services to persons or places outside the framework of the Defense Trade Cooperation Treaty without authorisation.
Section 32: If an approved Australian Community member, do not deal with certain US Defence Articles that are exempt from the Treaty without a specific licence or authorisation from the US Government or a notice from the Minister.
Section 33: If an approved Australian Community member, comply with any direction from the Minister not to supply goods or provide services to a specified member of the United States Community.
Section 34: If the University's approval as an Australian Community member is suspended or cancelled, it must comply with any Ministerial direction regarding the handling of US Defence Articles in its possession.
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include imprisonment for 10 years or 2,500 penalty units, or both.
Breach Impact Non-Financial:
Injunctions (s.70); Cancellation or suspension of approval (s.29, s.30).
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
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Comply with Minister issued notices about supply and publishing
Description
Section 14:
Comply with any notice issued by the Minister that prohibits or places conditions on the supply of DSGL goods/technology or the provision of DSGL services.
Do not publish technology that is listed in Part 1 (military items) of the DSGL to the public without a valid approval, unless it is already lawfully in the public domain.
Comply with any notice issued by the Minister that prohibits or places conditions on the publication of specified DSGL technology.
Comply with any interim notice issued by the Secretary of the Department that prohibits the publication of specified DSGL technology.
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include imprisonment for 10 years or 2,500 penalty units, or both.
Breach Impact Non-Financial:
Investigation, improvement and prohibition notices
Supervisory intervention orders
Court Orders
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
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Comply with permit conditions
Description
Section 18:
Comply with all conditions specified in a permit authorising the arrangement of supplies (brokering) of DSGL goods or technology (permit issued under s.16).
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include 60 penalty units for a body corporate.
Breach Impact Non-Financial:
Injunctions (s.70); Revocation of permit (s.11, s.16).
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
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Comply with requirements during a monitoring visit by and authorised officer
Description
Section 43: During a monitoring visit by an authorised officer, personnel must answer questions and produce documents relevant to compliance with the Act when required.
Section 48: Provide all reasonable facilities and assistance to an authorised officer and any person assisting them for the effective exercise of their monitoring powers on University premises.
Section 49: Do not tamper with, interfere with, or destroy any item that has been secured by an authorised officer during a monitoring visit.
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include up to 150 penalty units ($49,500) - Fine imposed by a court in lieu of imprisonment.
Criminal fine for the organisation; Imprisonment of up to 6 months for individuals involved.
Breach Impact Non-Financial:
Injunctions.
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
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Controlled Goods, Services & Technology
Description
Where research is related to goods, services or technologies that are controlled under the Defence and Strategic Goods List, Researchers are obligated to obtain the necessary permit/s***, in consultation with Research Services and the Compliance Coordinator/Responsible Manager (being the Export Controls Compliance Officer) below.
Researchers must give consideration to the impact of the requirements of the Defence Trade Controls Act 2012 at times of:
1. Publication
2. Electronic correspondence
3. Collaboration with external parties
*** Permits are required for the:
- supply of controlled military technology
- supply of controlled dual-use technology
- brokering of controlled military technology for a WMD or military end-use
Approval by the Minister for Defence is required when publishing controlled military technology. The Minister may also issue a notice to prohibit a dual-use publication or brokering activity if they reasonably believe that it would prejudice Australia’s security or international obligations.
Impacts
An offence is committed when a person does not do the following not in accordance with a permit or approval:
(a) supply DSGL technology;
(b) arrange for other persons to supply goods in the Defence and Strategic Goods List or to supply DSGL technology;
(c) publish DSGL technology in Part 1 of that list.
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include imprisonment for 10 years or 2,500 penalty units, or both.
Offence provisions will come into force at the end of the agreed transition period.
Breach Impact Financial:
Primary offences with Penalty of imprisonment for 10 years or 2,500 penalty units, or both:
section 10 Offence—supply of DSGL technology from in Australia to outside Australia
section 10A Offence—supply of DSGL technology in Australia to foreign person
section 10B Offence—certain supplies of DSGL goods or DSGL technology from outside Australia
section 10C Offence—provision of DSGL services outside Australian
Breach Impact Non-Financial:
Investigation, improvement and prohibition notices
Supervisory intervention orders
Court Orders
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
None
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
UNE Research Services - National Policies and Guidelines
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Retain, produce and provide records and documents as required
Description
Section 52: Comply with a notice from the Secretary of the Department to provide information or produce documents relevant to the operation of the Act.
Section 58: Keep and retain records for a period of 5 years for activities conducted under a permit, activities conducted as an approved Australian Community member, and other specified supplies of DSGL items.
Section 59: Produce specified records to the Secretary within the period required by a notice
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include up to 150 penalty units ($49,500) - Fine imposed by a court in lieu of imprisonment.
Failing to keep or retain records for the required 5-year period is a strict liability offence.
Breach Impact Non-Financial:
Injunctions (s.70)
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
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Supply of DGSL technology or services
Description
Section 10 and 13: Do not supply technology listed on the Defence and Strategic Goods List (DSGL) from a location in Australia to a person or place outside Australia without a valid permit.
Do not supply DSGL technology within Australia to a foreign person (an individual or entity that is not Australian) without a valid permit.
Do not supply certain DSGL goods or technology from one foreign country to another (or within a foreign country) if the items were originally sourced from Australia, without a valid permit.
Do not provide services (e.g., training, assistance, repair) related to military items on the DSGL to a foreign person outside Australia without a valid permit.
Comply with all conditions specified in a permit authorising the supply of DSGL technology or the provision of DSGL services (permit issued under s.11).
Section 15: Do not arrange for another person to supply DSGL goods or technology (i.e., act as a broker) from one foreign country to another without a valid permit.
Impacts
Chapter 2 of the Criminal Code applies to all offences against this Act, and penalties include imprisonment for 10 years or 2,500 penalty units, or both.
Breach Impact Non-Financial:
Investigation, improvement and prohibition notices
Supervisory intervention orders
Court Orders
Executive Liability: Indirect. While not explicitly stated in the Act, directors and officers have a common law duty to exercise reasonable care and diligence in their roles. This duty extends to ensuring compliance with all applicable laws, including the Defence Trade Controls Act 2012.
Criminal Penalty/Offence: Yes.
Responsible Manager
Chris Armstrong, Deputy Vice-Chancellor Research
Coordinating Officer
Bonnie Mayes, Research Governance and Compliance Officer
Coordinating Unit
Research Services
Oversight Committee/Group
Foreign Interference and Collaboration Committee
Business Units Impacted
Obligation Framework
Associated Legislation
Associated Standard
None
Associated Code
None
Associated Information
Management Tools
Rule
Code of Conduct for Research Rule
Collaborative Research Rule
Research UNE Deposit, Collection and Access Rule
Policy
Knowledge Assets and Intellectual Property Policy
Open Access to UNE Research Publications and Data Policy
Research Data Management Policy
Terms of Reference (Vice-Chancellor approved) - Foreign Interference and Collaboration Committee
Protocol
None
Procedure
Open Access to UNE Research Publications and Data Procedures
Guideline
None
Other Websites
Compliance Overview