The Defence Trade Control Act and You!

/ Bill McFarlane / Important Updates

Did you know that sending an email overseas may find you in breach of the Defence Trade Control Act 2012 and that you will be personally liable? Did you know that a penalty for such an act without a licence includes imprisonment?

Australia takes seriously its international counter proliferation obligations, using Australian export control laws to ensure Australia exports responsibly. Australia’s export control policies are in place to enable the export of defence and strategic goods where it is consistent with Australia’s national interests and international obligations.

The Defence Export Control Office (DECO) is the government entity that supervises these obligations as defined in a number of Acts and the one that is the subject of this article is the Defence Trade Controls Act 2012. The DECO web site, from which passages of this article are included, is http://www.defence.gov.au/DECO/Notices.asp#N2 .

The Defence Export Control Office (DECO) is responsible to the Minister for Defence for regulating the export of defence and strategic goods and technologies and importantly for you and the patent attorney profession this includes the export of information about controlled goods and technologies by way of electronic email.

The implementation date for the application of this Act is 17 May 2015, so you have plenty of time to set procedures in place in your working environment so that you, your staff or colleagues are not going to fall foul of this Act.

Thus, the inclusion of such information in an academic paper, patent specification or even an email containing such information, sent overseas or copied to someone, such as a fellow researcher or patent attorney overseas, is prohibited unless a license to do so is obtained before the act of export. It does not matter to where overseas the export of the information is made, so it does not matter that it may only be sent to someone in what most would consider an allied nation such as the United States of America.

Interestingly, an email containing the same information sent and received within Australia is not an export.

More specifically if you want to know whether the information is of the type that MUST be licensed before exportation, the first point of enquiry is the Defence and Strategic Goods List (DSGL) http://www.defence.gov.au/DECO/DSGL.asp .

This list contains all controlled items in relation to the arms control treaties and international export control regimes to which Australia is committed, and identifies specific Australian goods and technologies. The important issue is to realise that information that discloses certain technical details of these goods and technologies is information subject to the Defence Export Controls Act 2012.

The DSGL is made up of two parts.

Part One covers defence and related goods – these are goods and technologies designed or adapted for use by armed forces or goods that are inherently lethal.  These goods include:

  • military goods – goods or technology designed or adapted for military purposes; and
  • non-military lethal goods – equipment that is inherently lethal, incapacitating or destructive such as non-military firearms, non-military ammunition and commercial explosives and initiators.

Part Two covers strategic goods and technologies developed for commercial needs but may be used as part of a military program, for the development or production of a military system or weapons of mass destruction. This is also known as the Dual-Use List.

This document is 361 pages long and unless you are continually required to deal in such matters, it has been a welcome initiative of DECO to provide a web interface to assist concerned and responsible persons to check if their goods or technology fall within its ambit. Thus it is important for academics, their administrators, inventors and patent attorneys to make the check and determine if a planned export will require a licence or at least a further discussion with DECO to determine the circumstances. The web site is http://www.defence.gov.au/deco/ .

DECO has indicated that every effort will be made to assess enquiries and applications within a reasonable time frame, but clearly, the earlier before the planned or intended export you conduct a check or contact DECO the better. It will be unrealistic to expect DECO, to properly assess your situation within hours or days if the type of information is not clearly identifiable as being a restricted export or requires authorisation of an export licence.

Once formalised, the progress of individual cases is closely monitored and reported to the applicant. Applicants are consulted early in the application process and throughout the process and are provided the opportunity to present all relevant information that can assist in making an assessment of the application for a licence or indeed the necessity for a licence. Where it is determined that an application requires inter-agency consultation, applicants are provided with written advice explaining the process and that advising time frames may extend beyond 35 days.

The export control systems in place and the types of goods and technology are continually evolving and must be constantly monitored and updated by DECO into the DSGL. Australia’s export control policies and procedures are therefore regularly reviewed to take account of changes in our strategic circumstances. Thus it is the responsibility of you and your patent attorney to check and recheck the DGSL or enquire with DECO as required.

As stated above the implementation date for the application of this Act is 17 May 2015, so now is the time to create procedures for you your working environment so that you, your staff or colleagues are not going to fall foul of this Act. DECO is relying on education as the main instrument of encouragement to Australians and punitive measures will not be taken. However, DECO has indicated that repeat and intentional export of such information will be met with the full force of this very important law.