Defence Trade Controls Amendment Act 2024

Overview

The Defence Trade Controls Amendment Act 2024 was enacted by the Parliament of Australia to enhance the regulatory framework governing the export and supply of defence and strategic goods and technology. This amendment primarily targets the Defence Trade Controls Act 2012, aiming to tighten controls over the export and supply of sensitive defence-related items to ensure they do not compromise Australia's security or international relations. By introducing stricter definitions and conditions for the supply and service of Defence and Strategic Goods List (DSGL) items, the Act seeks to prevent unauthorised transfers of technology and goods that could potentially be used against Australia's interests. The policy objective is to maintain a robust export control regime that aligns with Australia's national security and foreign policy objectives, ensuring that the export and supply of defence and strategic goods and technology are conducted in a manner that safeguards Australia's strategic advantages.

Scope and Application

The Defence Trade Controls Amendment Act 2024 is a Commonwealth legislation that amends the Defence Trade Controls Act 2012, which regulates the export and supply of defence and strategic goods and services that are critical to Australia's national security. The Act applies to persons and entities that are involved in the supply or provision of defence and strategic goods and services (DSGL goods and DSGL technology) or defence and strategic goods list (DSGL) services, within or outside Australia, to foreign persons or entities, or in certain circumstances, to Australian persons or entities. The Act also applies to Australian persons or entities that supply or provide DSGL goods or DSGL technology to foreign persons or entities outside Australia, if the goods or technology were obtained as a result of an earlier export or supply from Australia. The Act does not apply to fundamental research activities, or to DSGL goods or DSGL technology that are excluded by a legislative instrument made by the Minister. The Act extends or restricts its application through subordinate instruments, such as legislative instruments, permits, notices, and regulations, which may specify conditions, exemptions, or thresholds for certain activities or goods. The Act establishes several offences for unauthorised supplies or provisions of DSGL goods or DSGL technology or DSGL services, with penalties of imprisonment for up to 10 years or fines of up to 2,500 penalty units, or both. The Act also imposes absolute or strict liability for some of the offences, meaning that the supplier or provider does not need to have intended or known about the contravention. The Act provides several exceptions to the offences, such as for supplies or provisions that are made in the course of official duties, or for persons who hold certain security clearances, or for certain activities that are authorised by international agreements or arrangements.

Key Provisions

• The Defence Trade Controls Amendment Act 2024 (Act) amends the Defence Trade Controls Act 2012 (2012 Act) to strengthen controls over the export and supply of defence and strategic goods and technology (DSGL goods and DSGL technology) and services (DSGL services) that are of strategic importance to Australia. The main amendments introduced by the Act include the expansion of the definition of DSGL technology, the introduction of new categories of supplies and services, and the establishment of new offences and penalties for breaches.
• The Act modifies the definition of DSGL technology (Section 4(1) of the 2012 Act) to include technology within the scope of the Defence and Strategic Goods List (DSGL) that has not been produced in the course of or for the purposes of fundamental research. It further defines DSGL services as the provision of assistance, including training, related to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarisation, destruction, processing, or use of DSGL goods or DSGL technology within the scope of Part 1 of the DSGL.
• The Act introduces the concept of "Australian Military Sales Program items" (Section 5AA of the 2012 Act), which are DSGL goods or DSGL technology specified by the Minister in a legislative instrument. Additionally, it introduces the terms "constitutional supply" and "constitutional DSGL services" (Section 5B of the 2012 Act), which refer to supplies or services made or provided in specific circumstances involving constitutional corporations, foreign governments, or aliens.
• The Act also introduces the concepts of "relevant supply" and "relevant DSGL services" (Section 5C of the 2012 Act), which cover supplies or services that are not explicitly exempted by the Act. These concepts include detailed provisions for exemptions and exclusions, allowing the Minister to specify certain DSGL goods or DSGL technology as excluded for the purposes of these definitions.
• Entities and individuals governed by the Act must comply with the new definitions and provisions, ensuring that any supply or provision of DSGL goods, DSGL technology, or DSGL services is conducted in accordance with the Act. This includes obtaining necessary permits from the Minister and adhering to any conditions imposed on those permits. Failure to comply with these requirements can result in criminal and civil penalties.
• The Act establishes new offences for the unauthorised supply of DSGL technology from Australia to foreign persons (Section 10A of the 2012 Act), the supply of DSGL goods or DSGL technology from outside Australia (Section 10B of the 2012 Act), and the provision of DSGL services outside Australia (Section 10C of the 2012 Act). Each of these offences carries a maximum penalty of 10 years imprisonment or 2,500 penalty units, or both. Absolute or strict liability may apply to certain elements of these offences, and there are exceptions for activities involving Australian, UK, US, and certain other nationals, or activities conducted under specific agreements or arrangements.
• The Act also allows the Minister to issue notices prohibiting certain activities if the Minister reasonably believes that the activities would prejudice Australia's security, defence, or international relations (Section 14 of the 2012 Act). Engaging in activities that contravene such a notice is an offence that carries a penalty of up to 10 years imprisonment or 2,500 penalty units, or both.
• In summary, the Defence Trade Controls Amendment Act 2024 enhances the regulatory framework governing the export and supply of DSGL goods, DSGL technology, and DSGL services by introducing new definitions, categories, and offences, and by imposing stringent penalties for non-compliance.

Legal classification tags

Area of Law

International Trade Law

International Law

Defence & Security Law

Instrument

Act

Concepts

Definitions & Interpretation

Commencement Provisions

Repeal & Amendment

Transitional Provisions

Offence Provisions

Licensing & Registration

Enforcement Powers

Regulatory Standards