Australian Cyber Law Map

Defence Exports and Trade

19 December 2022 - 14:30 | Version 10 | JenniferWestmorland

Australia gives effect to its international defence exports and trade controls obligations via domestic legislation, namely the Defence Trade Controls Act 2012 (Cth) and associated regulations.

Australia's export control obligations are derived from a series of international agreements, including the Wassenaar Arrangement. These obligations are given effect in domestic legislation, namely by the Defence Trade Controls Act 2012 (Cth) and Defence and Strategic Goods List 2019 (Cth), the latter being divided into Part 1: Military goods and technologies, and Part 2: Dual-use goods and technologies.
The Defence Trade Controls Act 2012 (Cth) was amended in 2015 to, inter alia, limit the 'publication' of DSGL technology offence to only military goods and technology (Part 1 of the List) and not dual-use technology (Part 2).
- See Defence Trade Controls Amendment Act 2015 (Cth) and its Explanatory Memorandum.
In October 2018, the Government released the Report of the Independent Review of the Defence Trade Controls Act 2012 and its Initial Government Response to those recommendations.
The Wassenaar Arrangement is a highly relevant instrument to cyber security regulation.
- See Allens Hub for Technology Law and Innovation submission to DFAT's Public Consultation on International Cyber and Critical Technology Engagement Strategy (16 June 2020)

The Defence Trade Controls Act 2012 (Cth), which applies equally to industry and research sectors, is designed to control the transfer of defence and strategic goods technologies by regulating:
- the intangible supply of technology relating to defence and strategic goods, such as by electronic means; and
- publishing or brokering the supply of such goods and technology.
Central to the Act is the Defence and Strategic Goods List, which is divided into two parts:
- Part 1 contains controlled military goods and technologies
- Part 2 contains dual-use goods and technologies
Part 2 of the Act criminalises, without a permit:
- supplying (or arranging another person to supply) a DSGL technology (Part 1 or Part 2 of the List)
- publishing a DSGL technology (Part 1 of the List only) .
Under Part 3 of the Act, a person or body corporate may be approved as a member of the ‘Australian Community’ under the Defense Trade Cooperation Treaty, allowing authorised officers to monitor that person’s compliance with the Act.
Parts 4, 5 and 6 of the Act establish monitoring powers, information-gathering powers and record-keeping obligations affecting persons who hold permits under the Act or approvals as members of the Australian Community.

The Defence and Strategic Goods List 2019 (Cth) incorporates the structure and principles of the Wassenaar Arrangement:
- Part 1: Munitions
- Part 2: Dual-use goods and technologies
  - Category 0: Nuclear materials, facilities and equipment
  - Category 1: Materials, chemicals, microorganisms and toxins
  - Category 2: Materials processing
  - Category 3: Electronics
  - Category 4: Computers
  - Category 5: Telecommunications and information security
  - Category 6: Sensors and lasers
  - Category 7: Navigation and avionics
  - Category 8: Marine
  - Category 9: Aerospace and propulsion
  - Sensitive List of dual-use goods and technologies
  - Very Sensitive List of dual-use goods and technologies
Section 3.10 of the Defence and Strategic Goods List 2019 (Cth) provides that the DSGL does not control 'software' that may include commercially available software, open-source software and software updates.

Part 3 Div 4A of the Customs (Prohibited Exports) Regulations 1958 (Cth) complements the Defence Trade Controls Act 2012 (Cth) by prohibiting the exportation of goods on the DSGL or goods containing DSGL technology, subject to obtaining a licence or permission from the Minister for Defence.
Additionally, the Customs (Prohibited Exports) Regulations 1958 (Cth) regulate the exportation of: nuclear material; export-sanctioned goods to countries, individuals or entities under autonomous sanctions; arms and related matériel to specified countries; and counterfeit credit, debit and charge cards.