Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026

EXPLANATORY STATEMENT

Issued by authority of the Minister for Defence

Defence Trade Controls Act 2012

Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026

The Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026 (the instrument) is made under section 5AA of the Defence Trade Controls Act 2012 (DTC Act). The instrument commences on the day after the instrument is registered and is a legislative instrument for the purposes of the Legislation Act 2003 (Legislation Act).

Purpose

The purpose of the instrument is to amend the Defence Trade Controls (Australian Military Sales Program item) Determination 2024 to remove ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ as Australian Military Sales Program (AMSP) items which are specified DSGL goods or DSGL technology.

Under section 5AA of the DTC Act, the Minister may, by legislative instrument, determine that specified DSGL goods or DSGL technology is an AMSP item. The effect of DSGL goods or DSGL technology being an AMSP item is that those goods or technologies are subject to different export controls regulatory requirements. Specifically, DSGL goods, DSGL technology and DSGL services that is an AMSP item are subject to different regulatory requirements under the DTC Act and the Customs (Prohibited Exports) Regulations 1958 (Customs PE Regulations). Subsections 5C(1B) and (2B) of the DTC Act set out exemptions to the permitting requirements that apply under the Act. While subregulation 13EA(5C) of the Customs PE Regulations sets out an exception to the permitting requirements that apply under the customs framework. These exemptions or exceptions may be relied on if the supply or export of the DSGL goods or DSGL technology or provision of DSGL services (the ‘supply’) is in accordance with an agreement or arrangement between Australia and one or more foreign countries, including an agreement, arrangement or understanding between a Minister and an official or authority of one or more foreign countries.

AMSP items are intended to include Australia’s sovereign DSGL goods and DSGL technologies. Defence conducted a review of the ‘E-7A Wedgetail AEW&C aircraft’ and the ‘MQ-28A Ghost Bat UAV’ and assessed that inclusion on the AMSP is not required. Accordingly, removing the ‘E-7A Wedgetail AEW&C aircraft’ and the ‘MQ-28A Ghost Bat UAV’ from the AMSP is the most appropriate regulatory step to minimise unnecessary administrative burden.

All future exports, supplies and provision of services related to the capabilities, will be ineligible to utilise the exemptions and exceptions provisions in the DTC Act and Customs PE Regulations that are available for AMSP items. Further, exports of any components, or supplies of any software or technology specially designed for those capabilities, will no longer be able to rely on those exemption and exception provisions.

The standard permitting requirements under the DTC Act and the Customs PE Regulations must be followed after the instrument commences, unless other exemptions or exceptions apply for exports or supplies of those capabilities and related components, software and technology.

Details of the instrument

Details of the instrument are set out in Attachment A.

Consultation

Before the Defence Trade Controls (Australian Military Sales Program item) Determination 2024 was made, the Department of Defence (Defence) established two working groups which contributed to co-designing the instrument with Defence through a regular process of consultation. Defence also consulted internally across the Department, as well as relevant external stakeholders in defence industry on the development of that instrument. A full Impact Analysis was also prepared as part of the Defence Trade Controls Amendment Act 2024, which considered the measures progressed as part of the determination.

For the Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026, Defence consulted the instrument with the relevant external stakeholder in defence industry, Boeing Defence Australia. As the amendment involves the removal of two capabilities, for which Boeing Defence Australia is Defence’s industry partner, wider consultation across defence industry was not appropriate, as the removal does not affect parties external to Defence and Boeing Defence Australia. Defence also consulted the Department of Home Affairs and the Department of the Prime Minister and Cabinet, who did not raise any concerns. No other agencies are affected by this determination. The outcome of this consultation process was that Defence was able to ensure that the scope, structure and content of the instrument was sufficiently fit-for-purpose. Broader consultation was not undertaken because the instrument does not affect individual persons. This consultation is appropriate and reasonably practicable in relation to the instrument.

Parliamentary scrutiny

The instrument is subject to disallowance under section 42 of the Legislation Act. The instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is included at Attachment B.

The instrument was made by the Honourable Richard Marles MP, Minister for Defence, in accordance with the requirements of section 5AA of the DTC Act.

Attachment A

Details of the Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026

Section 1 Name

1.       Section 1 provides that the name of the instrument is the Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026 (the instrument).

Section 2 Commencement

1.       Section 2 provides that the instrument commences on the day after the instrument is registered.

Section 3 Authority

1.       Section 3 provides that the instrument is made under section 5AA of the Defence Trade Controls Act 2012 (DTC Act).

Section 4 Schedule

1.       Section 4 provides that each instrument specified in the schedule to the instrument is amended or repealed as set out in the applicable items in the schedule, and any other item in the schedule has effect according to its terms. The schedule amends the Defence Trade Controls (Australian Military Sales Program item) Determination 2024.

Schedule

Defence Trade Controls (Australian Military Sales Program item) Determination 2024

Item 1  Section 4 (definition of AEW&C)

1.       Item 1 repeals the definition of AEW&C. As item 4 removes ‘E-7A Wedgetail AEW&C aircraft’ as a specified Australian Military Sales Program (AMSP) item, the definition for ‘AEW&C’ is no longer required.

Item 2  Section 4 (definition of aircraft)

1.       Item 2 repeals the definition of aircraft. As item 4 removes ‘E-7A Wedgetail AEW&C aircraft’ as a specified AMSP item, the definition for ‘aircraft’ is no longer required.

Item 3  Section 4 (definition of UAV)

1.       Item 3 repeals the definition of UAV. As item 4 removes ‘MQ-28A Ghost Bat UAV’ as a specified AMSP item, the definition for ‘UAV’ is no longer required.

Item 4  Section 5

1.       Item 4 updates section 5 of the instrument to remove the ‘E-7A Wedgetail AEW&C aircraft’ and ‘MQ-28A Ghost Bat UAV’ as specified AMSP items. The amendment also updates the way the instrument is drafted to ensure correct provision units of instruments are used.
2.       To achieve this, item 4 substitutes the text of section 5 to use subsections, instead of paragraphs, which also means the table that specified those capabilities, is now at subsection 5(2), rather than paragraph 5(1)(a). Consequential changes ensure cross-referencing remains correct.
3.   New subsection 5(1), provides that section 5 specifies DSGL goods or DSGL technology that is an AMSP item.
4.   New subsection 5(2) provides that DSGL goods or DSGL technology specified in an item of column 1 of the table that are covered by the DSGL Reference Number in column 2 is an AMSP item. There are three capabilities mentioned in the table:

• Ghost Shark Extra-Large Autonomous Undersea Vehicle (item 1, DSGL Reference Number ML9.);
• Active Electronically Scanned Array (item 2, DSGL Reference Number ML5.); and
• Jindalee Operational Radar Network high-frequency-over-the-horizon-radar (item 3, DSGL Reference Number ML5.).

1.   The effect of capabilities being specified as AMSP items is that different regulatory settings apply to them under the DTC Act and the Customs (Prohibited Exports) Regulations 1958 (Customs PE Regulations). Specifically, subsections 5C(1B) and (2B) of the DTC Act and subregulation 13EA(5C) of the Customs PE Regulations provide exemptions from the permitting requirements of the DTC Act and Customs PE Regulations for the export, supply or provision of DSGL services in relation to AMSP items covered by a government-to-government agreement or arrangement.
2.   The overall effect of subsection 5(2) is to remove the ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ as specified AMSP items in the Defence Trade Controls (Australian Military Sales Program item) Determination 2024, while continuing to specify the remaining capabilities as AMSP items.
3.   Removing the ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ capability from the AMSP item list has the effect of making all future exports and supplies of DSGL goods and technology, and provision of DSGL services, subject to the standard export requirements under the DTC Act and Customs PE Regulations, unless other exemptions apply.
4.   New subsection 5(3) replaces paragraph 5(1)(b), and does not make any substantive changes.
5.   New subsection 5(4) replaces paragraph 5(1)(c), and does not make any substantive changes.
6.   New subsection 5(5) replaces paragraph 5(1)(d), and does not make any substantive changes.
7.   However, what constitutes an AMSP item under subsections 5(3) to (5) may be affected by the removal of ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ from the table in new subsection 5(2). This is because those subsections specify things that have been specially designed for capabilities mentioned in the table. Any things specially designed for ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ are no longer AMSP items.

Attachment B

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Trade Controls (Australian Military Sales Program item) Amendment Determination 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Instrument

The purpose of the instrument is to amend the Defence Trade Controls (Australian Military Sales Program item) Determination 2024 to remove ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ as Australian Military Sales Program (AMSP) items which are specified DSGL goods or DSGL technology.

Under section 5AA of the DTC Act, the Minister may, by legislative instrument, determine that specified DSGL goods or DSGL technology is an AMSP item. The effect of DSGL goods or DSGL technology being an AMSP item is that those goods or technologies are subject to different export controls regulatory requirements. Specifically, DSGL goods, DSGL technology and DSGL services that is an AMSP item are subject to different regulatory requirements under the DTC Act and the Customs (Prohibited Exports) Regulations 1958 (Customs PE Regulations). Subsections 5C(1B) and (2B) of the DTC Act set out exemptions to the permitting requirements that apply under the Act. While subregulation 13EA(5C) of the Customs PE Regulations sets out an exception to the permitting requirements that apply under the customs framework. These exemptions or exceptions may be relied on if the supply or export of the DSGL goods or DSGL technology or provision of DSGL services (the ‘supply’) is in accordance with an agreement or arrangement between Australia and one or more foreign countries, including an agreement, arrangement or understanding between a Minister and an official or authority of one or more foreign countries.

AMSP items are intended to include Australia’s sovereign DSGL goods and DSGL technologies (see paragraph 37 of the revised explanatory memorandum for the Defence Trade Controls Amendment Bill 2024). The removal of the ‘MQ-28A Ghost Bat UAV’ and the ‘E-7A Wedgetail AEW&C aircraft’ reflect that they do not fit in this category and supply would be better regulated outside of the exemptions and exceptions afforded to AMSP items

All future exports, supplies and provision of services related to the capabilities, will be ineligible to utilise the exemptions and exceptions provisions in the DTC Act and Customs PE Regulations that are available for AMSP items. Further, exports of any components, or supplies of any software or technology specially designed for those capabilities, will no longer be able to rely on those exemption and exception provisions.

The standard permitting requirements under the DTC Act and the Customs PE Regulations must be followed after the instrument commences, unless other exemptions or exceptions apply for exports or supplies of those capabilities and related components, software and technology.

Human rights implications

This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms. This is because the primary effect of the instrument is to remove ‘MQ-28A Ghost Bat UAV’ and ‘E-7A Wedgetail AEW&C aircraft’ as specified AMSP items in the Defence Trade Controls (Australian Military Sales Program item) Determination 2024. The removal of these items from the AMSP item list does not change the Government oversight of transfers of this technology, and all other procedures will continue to take place consistent with Australia’s existing military sales framework.

Conclusion

The Disallowable Legislative Instrument is compatible with human rights, as it does not raise any human rights issues.