Defence Trade Controls Act 2012 - Foreign Country List

Overview

The Foreign Country List was enacted as a legislative instrument under section 15(4A) of the Defence Trade Controls Act 2012, by the Minister for Defence. This instrument was created to address the need for streamlined export control processes by recognising the reliable export control regulations of certain foreign countries. The Foreign Country List identifies countries that are members of major international export control regimes and whose export control regulations are deemed reliable by the Australian Government. This list allows for a legislative exemption from the main brokering offences stipulated in the Defence Trade Controls Act 2012, enabling brokering of Defence and Strategic Goods List items without the necessity of obtaining a permit. This exemption aims to eliminate the redundancy of dual regulatory layers, facilitating smoother transactions while maintaining robust export control standards. The preparation of the Foreign Country List was carried out by the Defence Export Control Office in consultation with the Department of Foreign Affairs and Trade.

Scope and Application

The Foreign Country List, as a legislative instrument under the Defence Trade Controls Act 2012, is designed to streamline the process of brokering goods and technology listed in the Defence and Strategic Goods List (DSGL) by creating an exemption from the permit requirement for certain brokering activities. This list applies to brokers who are located in Australia and are arranging the supply of DSGL goods or technology from or within a country listed on the Foreign Country List, as well as to Australian nationals conducting brokering activities while physically present in a country on the list. The list is intended to facilitate trade by recognising the reliable export control systems of these countries, which are members of major international export control regimes such as the Wassenaar Arrangement, Nuclear Suppliers Group, Missile Technology Regime, and Australia Group. This exemption aims to avoid the imposition of redundant regulatory layers while ensuring that trade in strategic goods and technology remains tightly controlled. The creation of the list involved consultation between the Defence Export Control Office and the Department of Foreign Affairs and Trade.

Key Provisions

The Foreign Country List, established under section 15(4A) of the Defence Trade Controls Act 2012, outlines countries whose export control systems are deemed reliable by the Australian Government. Countries on this list must be members of four major international export control regimes: the Wassenaar Arrangement, Nuclear Suppliers Group, Missile Technology Regime, and the Australia Group (s15(4A)). This list allows for a legislative exemption from the main brokering offences outlined in section 15 of the Defence Trade Controls Act 2012, permitting the brokering of goods and technology listed in the Defence and Strategic Goods List (DSGL) without requiring a permit under section 16 of the same Act. This exemption is intended to streamline regulatory processes by removing what is referred to as a "double layer of regulation." The exemption applies to brokers operating within Australia who arrange for the supply of DSGL goods or technology from a country on the Foreign Country List, as well as to Australians conducting brokering activities while physically located in one of these countries. The Act imposes specific obligations on parties governed by it. Brokers who benefit from the legislative exemption must ensure that they are either operating within Australia and arranging for DSGL goods or technology to be supplied from a country listed on the Foreign Country List, or that they are Australians conducting brokering activities in one of these countries. Additionally, the Act requires that these brokers maintain compliance with all other applicable export control regulations and procedures. The Defence Export Control Office, in consultation with the Department of Foreign Affairs and Trade, prepares and updates the Foreign Country List to ensure that only countries with reliable export control systems are included. Breaches of the Defence Trade Controls Act 2012 can result in both civil and criminal penalties. Under section 23 of the Act, individuals or entities found to be in breach of the Act can be subject to civil penalties, which can include fines up to the maximum statutory limits. For serious violations, the Act also provides for criminal penalties. Section 24 stipulates that an individual can be fined up to 120,000 penalty units or imprisoned for up to five years, or both, for contravening the Act. For a body corporate, the fines can reach up to 600,000 penalty units, as outlined in section 24A. These penalties underscore the seriousness with which the Australian Government views compliance with its export control regulations.