Export of Physical Goods Controlled Under the Defence and Strategic Goods List (DSGL)

Under the Customs Act 1901 and the Customs (Prohibited Exports) Regulations 1958, a permit is required to export controlled goods or technologies in physical form. This activity is referred to as tangible export. Tangible export activities that may require a permit include the export of any controlled goods that are sent or carried overseas for any purpose, including personal use, demonstration, repairs, or return to a manufacturer.

For example, a permit is required to take controlled technology (e.g., technical data relating to a controlled good) stored on a physical medium such as a USB stick, CD or laptop hard-drive, outside of Australia. This includes if these items are carried in your hand-held or checked luggage. 

 


Supply, Publication and Brokering of Technical Information and/or Software Controlled Under the DSGL

The Defence Trade Controls Act (DTCA) 2012, amended in April 2015, strengthened Australia’s existing export controls by adding controls for the intangible supply, publication and brokering of controlled software and technologies. These controls apply equally to the defence, industry, university and research sectors. A permit is required to undertake these export activities for controlled goods and technologies.

Intangible Supply Occurs when a person in Australia supplies or provides access to controlled technology to a person located outside of Australia by electronic means. This can include via email, fax, telephone, video conferencing, providing access to an electronic file or restricted access database, or via a presentation (including conference presentations).
Publication Includes journal articles, conference papers, blog posts, websites, uploading research to peer-to-peer networks, sharing research on social media outlets, etc. Publication controls apply to anyone in Australia, or an Australian citizen, resident or organisation located anywhere in the world.
Brokering Occurs when a person or organisation acts as an agent or intermediary in arranging the ‘supply’ of controlled goods, software or technology between two places located outside of Australia, provided that the person or organisation will receive money or a non-cash benefit, or advance their political, religious or ideological cause for arranging the supply.

 


Summary of Permit Requirements under the DTCA

The Defence Export Controls (DEC) agency have a list of scenarios on their website that provide practical examples of when an export permit is or is not required.

A summary of permit requirements under the DTCA is provided below:

 


Exemptions to Export Controls

Under the amended DTCA, there are a number of exemptions where a permit is not required for the supply, publication and brokering of dual-use technologies. These exemptions only apply to dual-use goods and technologies as listed in Part 2 of the DSGL. Dual-use technologies are defined as those that may be used or adapted for use in a military program or that may contribute to the development or production of chemical, biological or nuclear weapons systems, and do not include any items or technologies listed in Part 1 of the DSGL.

  • Controls on intangible supply and publication do not apply to ‘basic scientific research’, defined in the DSGL as being:

    “…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 Act.
  • Controls do not apply to information that is already ‘in the public domain’, defined in the DSGL as being:

    "... 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").

    Please note: if access to the controlled technology is restricted to particular users or groups, it is not considered to be ‘in the public domain’ - for example, a conference paper where access is restricted to conference delegates, or a website or database with a login and password given to select members or organisations. In contrast, a publication with access requiring payment (e.g. a journal article available for purchase from a publisher’s website) is considered to be ‘in the public domain’."
  • Approval is not required to publish dual-use DSGL technology. However, the Minister for Defence may issue a notice prohibiting publication of certain dual-use technologies, if the publication would prejudice Australia’s security or international obligations.
  • Some pre-publication supplies of controlled dual-use technology are exempt from requiring a permit (e.g. sending a draft manuscript to an overseas co-author).
  • Most (but not all) supply via oral communication of controlled technology is exempt from requiring a permit. Examples of non-exempt verbal supply include orally providing a username and password to allow a person to access controlled technology via a restricted online database.
  • Approval is not required to supply the minimum necessary information required for patent applications (excluding military nuclear technology). This exemption applies to the supply of DSGL technology where it is done for the purpose of seeking a patent in Australia or overseas.
  • Equipment specially designed for medical end-use that incorporates an item controlled in Part 2 of the DSGL is not controlled.

For further information about how export control affects individual researchers, please refer to the information provided on Introduction to Export and Defence Trade Control.