What are export control laws?
The Australian Government aims to ensure that the export of defence and dual-use goods, software and technologies is coherent with Australia’s national interests and international obligations.
Australia’s policy is to promote the export of Australian defence and dual-use goods where it is in-line with our national interests. Consistency with national interests is ensured through Australia’s export control system which is implemented by Defence Export Controls (DEC), an organisational unit within the Department of Defence. The Australian Government has implemented a number of national legislation and regulations and international arrangements which, together, form Australia’s export control system.
DEC is the agency accountable to the Minister for Defence for controlling the export of Australian goods, software and technologies. Goods and technologies are categorised as either ‘defence’ or ‘dual-use’.
- ‘Defence’ goods, software and technologies are items created or modified for military purposes or are ‘inherently lethal, incapacitating or destructive’.
- ‘Dual-use’ goods, software and technologies are items created for commercial purposes but may be used or modified for use in military programs or in the creation of weapons of mass destruction (WMD).
Defence and dual-use items are ‘controlled’ items either under the following:
- ‘Defence and Strategic Goods List’;
- Military End-Use provisions (section 112BA) of the Customs Act 1901 (AUS); and
- Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (AUS) (‘WMD Act’).
The application of these laws and regulations, as well as other important instruments are discussed below:
The DSGL is the list which enumerates the goods, software and technology which, unless an exemption applies, is controlled and therefore requires a permit when exporting, supplying, brokering or publishing.
Exemptions to technology apply if the technology is, for example, ‘in the public domain’, constitutes ‘basic scientific research’, or is the minimum necessary information for patent applications.
You may find the definitions of the terms in bold under the key concepts and definitions for export control section of this article.
The Military End-Use provisions (section 112BA) (MEU) of the Customs Act 1901 (AUS) acts as a ‘catch-all’ mechanism by including controls on the export of goods or technology that may contribute to a military end-use and which are not already caught by the DSGL.
The MEU provision allows for the prohibition of exports where it is suspected that the export may be for a military end-use which would ‘prejudice the security, defence or international relations of Australia.’ See here for more information.
You may find the definitions of the terms in bold under the key concepts and definitions for export control section of this article.
The Customs Act 1901 (AUS) forms the main legislative framework for controls on the export of tangible defence and dual-use goods and technologies. Controls are implemented through Customs (Prohibited Exports) Regulations 1958, Regulation 13E. More information can be found here.
The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (AUS) is an Act to control any goods, technologies and services that are believed or suspected to possibly be used in a weapons of mass destruction program. This is implemented in addition to controls under the DSGL and also acts as a ‘catch-all’ mechanism for goods, technologies and services which might not already be regulated. More information may be found here.
The Defence Trade Control Act 2012 (AUS) is an Act to strengthen Australia’s export controls in relation to technology which can be used in conventional weapons and weapons of mass destruction. The Act aims to stop this technology from being diverted into the wrong hands by putting in place measures which regulate the intangible supply of DGSL controlled technology and the brokering of DSGL controlled goods and technology.
You may find the definitions of the terms in bold under the key concepts and definitions for export control section of this article.
Sanctions restrict or prohibit exports of goods to some countries, persons and organisations. They are administered by the Department of Foreign Affairs and Trade (DFAT) through the operation of the Charter of the United Nations Act 1945 (AUS), the Autonomous Sanctions Act 2011 (AUS) and the Customs Act 1901 (AUS). See here for more information.
IMPORTANT TO KNOW:
The Defence and Strategic Goods List will be a key document to review when determining whether your goods, software or technology are ‘controlled’ thereby requiring a permit to export.
More information regarding the DSGL list can be found under ‘Defence and Strategic Goods List‘ section of this article.
Key concepts and definitions for export control
All items listed in the Defence and Strategic Goods List (DSGL) are ‘controlled’ and must not be exported, supplied, published or brokered from Australia unless you have a permit or exemptions apply.
Any moveable property of any type without limiting the generality of the expression. This includes documents, vessels and aircraft.
Software means a collection of one or more “programs” or “microprograms” fixed in any tangible medium of expression.
Technology means specific information necessary for the “development”, “production” or “use” of a product. This information takes the form of ‘technical data’ (blueprints, plans, models, diagrams, design specifications, manuals and instructions, etc. written or recorded on a device) or ‘technical assistance’ (training, skills, working knowledge, consulting services, etc.)
Export refers to when controlled goods or technology is sent from Australia to any place outside of Australia.
When users located outside Australia are provided with controlled technology, or given access to controlled technology.
When controlled technology is made accessible in the public domain.
Brokering occurs when one person or organisation acts as an ‘agent’ (a person/organisation who acts for another person/organisation to arrange a supply of goods or technology) or ‘intermediary’ (person/organisation who acts between a number of parties to facilitate the supply of the goods or technology for one or more of the parties) between two or more persons or organisations.
Goods or DSGL technology is or may be for a military end-use if the goods or DSGL technology is or may be for use in relation to operations, exercises or other activities conducted by an armed force or an armed group, whether or not the armed force or armed group forms part of the armed forces of the government of a foreign country. (Section 15, Defence Trade Controls Act 2012 (AUS); Section 112BA, Customs Act 1901 (AUS))
Where software or technology is made available without restriction for public access (Note: a paywall is not a ‘restriction’).
Basic scientific research means 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.
Spacecraft means active and passive satellites and space probes.
Spacecraft bus is equipment that provides the support infrastructure of the “spacecraft” and location for the “spacecraft payload”.
Spacecraft payload is equipment, attached to the “spacecraft bus”, designed to perform a mission in space (e.g., communications, observation, science, etc.).
This refers to products designed, manufactured, or qualified through successful testing, for operation at altitudes greater than 100 km above the surface of the Earth.
Note: A determination that a specific item is “space-qualified” by virtue of testing does not mean that other items in the same production run or model series are “space-qualified” if not individually tested.
For a more comprehensive list of definitions, see here.
International Regimes and Agreements
Australia is party to a number of international regimes and agreements which reflect Australia’s broad national interests in ensuring the consistency of exports and restricting the risk of adverse diversion of goods, technology and software. The international regimes and agreements discussed in this section sit ‘above’ Australia’s national legal and regulatory export control framework, because the national framework is the domestic implementation of these international regimes and agreements.
Key international regimes and agreements are listed below:
- Wassenaar Arrangement
- Australia Group
- Nuclear Suppliers Group
- Missile Technology Control Regime
- United Nations Conventional Arms Register
- United Nations Security Council Resolution 1540
- United Nations Security Council Resolution 1673
- The Treaty on the Non-Proliferation of Nuclear Weapons
- The Zangger Committee
- The Chemical Weapons Convention
- The Biological and Toxin Weapons Convention
- The Arms Trade Treaty
For a detailed explanation of these agreements and regimes, refer to the Regimes and Agreements page of the Defence Export Controls website.
Defence and Strategic Goods List (DSGL)
The DSGL is the list which enumerates the goods, software and technology which, unless an exemption applies, requires a permit when exporting, supplying, brokering or publishing.
Exemptions to technology apply if the technology is, for example, ‘in the public domain’, constitutes ‘basic scientific research’, or is the minimum necessary information for patent applications.
You may find the definitions of the terms in bold under the key concepts and definitions for export control section of this article.
The DSGL is organised into two parts:
Part 1 – Munitions List contains defence items. Relevant controls for military goods (or goods with a military end-use), software and technology are established under this Part.
Part 2– Dual-use items contains items which may be used for commercial purposes, but could also be used in defence systems or contribute in the development of weapons of mass destruction
Part 2 is further split into 9 categories of dual-use items. Most (but not all) technology associated with space activities will be listed under ‘Category 9’ of the DSGL. The categories are:
- Category 0 – Nuclear Materials
- Category 1 – Materials, Chemical, Micro-organisms and Toxins
- Category 2 – Materials Processing
- Category 3 – Electronics
- Category 4 – Computers
- Category 5 – Telecommunications and Information Security
- Category 6 – Sensors and Lasers
- Category 7 – Navigation and Avionics
- Category 8 – Marine
- Category 9 – Aerospace and Propulsion
Are your goods, software or technology ‘controlled’ under the DSGL?
To check whether your goods and technology are controlled under the DSGL, use the Online DSGL Tool. If you are still unsure, you can make a formal ‘Application for a DSGL Assessment‘.
Note that this is only for seeking advice, and does not provide you with approval to export DSGL goods or supply technology.
If you want approval to export goods or supply technology listed in the DSGL, then you will need to fill out an Application to Export or Supply Controlled Goods and Technology. Other permits are listed under ‘Applying for an export permit’.
Applying for an Export Permit
If you wish to export, supply, publish or broker goods, technologies, software or any other items controlled under the Defence and Strategic Goods List, then you will require a permit from Defence Export Controls (DEC).
No fees from DEC:
DEC does not issue a fee for export permissions, assessments or advice.
Important to know:
Before applying for any permit, you must register as a DEC client. If you are not registered as a DEC client, you will be unable to make an application to export your items.
In the first instance, it is recommended that you use the Online DSGL Tool to conduct your own assessment to establish whether or not you will require a permit from DEC to export, supply, publish or broker goods, software or technology controlled on the DSGL. If you are still unsure of whether your goods, technology or software is controlled, it is recommended that you submit an Application for DGSL Assessment. DEC will return to you with official advice, however, this is not to be taken as the issuing of a permit. You will need to apply for one of the following permits separately:
AUSGELs (Australian General Export Licences)
Apply for an Australian General Export Licence (AUSGEL) to obtain a broad license to export or supply to permitted destinations a pre-approved list of goods, software and technology. These licenses may be valid for 5 or more years. For a comprehensive list of AUSGELs, the application process and compliance requirements, please see here.
Compliance with intended purpose and DEC conditions:
DEC will only issue a licence to you if they are confident that you will comply with the intended purpose of the licence and any conditions attached to it.
Conditions attached to licences typically relate to ‘reporting’ requirements. A reporting condition will generally specify:
- the approved form on which the reports are to be submitted,
- the information that must be reported,
- the dates by which the reports are to be submitted, and
- where to submit the completed report forms.
If you fail to comply with any condition attached to your licence, the Minister of Defence may revoke your permission to export.
important to know:
If you contravene a condition or requirement attached to an export licence, your licence will be revoked and you may be liable for a penalty of AUD$18,000.
Application to Export Controlled Goods and Technology
Make an Application to Export Controlled Goods and Technology for an approval to export or supply goods and technology that are controlled under the DSGL, or for a permit to supply goods and services for use in a weapons of mass destruction program, or for an in-principle assessment. For more information, including a list of requirements for a successful application, please see here.
Other applications
For all other applications, including applications for brokering and importing, please see the Application Forms page of the Defence Export Control website.
important to know:
If you are exporting controlled goods, you must get permission from DEC first, and you must provide details of that permission to the Australian Border Force (ABF) in an Export Declaration Notice. If you do not, regardless of the value of the goods, the goods may be classified as “Prohibited Exports” and be liable for seizure by the ABF. Information on making an ABF declaration is available from the ABF website.
How does DEC assess my application for an export permit?
DEC assesses the exportability of defence and dual-use goods using five broad criteria:
- International obligations
- Human rights
- Regional security
- National security
- Foreign policy considerations
These criteria include an assessment of, for example, the risk that your goods or technology, through its export, supply or publication, may:
- become available to a country that Australia or the Security Council of the United Nations has imposed a sanction;
- be used by a country in a way that is inconsistent with Australia’s obligations or commitments;
- be used to commit or facilitate the commission of serious human rights abuses;
- damage Australia’s relations with other countries or a particular region
For a more comprehensive list of the assessment criteria, please visit the Defence Export Controls website.
Your Rights
If you wish to review a decision made in relation to your application for a permit, it is recommended that you contact DEC directly. It is important to know that you are able to seek a range of review mechanisms depending on your specific circumstances. These may include:
- Internal review within the Department of Defence
- External merits review through the Administrative Appeals Tribunal
- Judicial review
More information on your rights to review decisions made in relation to your export permit application, and the export controls assessment process may be found here.
USE CASE: Tendering for an overseas military contract
ANGELS Aerospace is a registered Defence Export Control client, wishing to tender for an overseas military contract. The contract requires ANGELS Aerospace to export bespoke military technology. The CEO is certain that ANGELS Aerospace will win the tender, however, she is unsure whether export of the technology will be permitted by Australian Defence Export Controls (DEC).
The CEO contacted DEC directly and was pleased to find that DEC can conduct an ‘in-principle assessment’ which will allow her to determine in advance the likely outcome of her export permit application.
The CEO submitted to DEC an Application to Export Controlled Goods and Technology form. On this form, the CEO flagged that she was only after an ‘in-principle’ assessment and provided as much information as she could about ANGELS Aerospace, the technology intended for export, the tender, and the end user. DEC considered all the information provided by the CEO, and also undertook an assessment of international security factors at the time of her application. DEC issued preliminary advice that the CEO’s future application for an export permit would likely be accepted by DEC.
DEC also advised the CEO that the in-principle approval does not give permission to export and that she will be required to apply for an official export permit when she is ready to send the technology, even if it is just a sample. DEC also emphasised that preliminary advice is always subject to change. The in-principle approval is based only on the information provided by the CEO and on the security factors which existed at the time of assessment.
USE CASE: Providing space consulting services overseas
ANGELS Aerospace has expertise in the design and creation of advanced propulsion system technology and has been approached by a company based overseas to provide consulting services for the manufacture of their system. An employee of ANGELS Aerospace is required to take his laptop overseas and a USB containing files for the design and creation of the ANGELS Aerospace propulsion system.
As a first step, ANGELS Aerospace needs to identify whether the technology used to provide their services to the overseas company triggers export control thresholds. This requires ANGELS Aerospace to check the Defence and Strategic Goods List (DSGL) to see if its technology is listed and therefore controlled. Using the Online DSGL Tool, ANGELS Aerospace conduct a quick self-assessment and find that the technology is likely controlled under Part 2, Category 9 ‘Aerospace and Propulsion’ of the DSGL. ANGELS Aerospace also seeks an official assessment by DEC which confirms that their technology is indeed controlled under the DSGL requiring a permit to supply it from Australia to the overseas company.
Compliance with foreign export control regimes
Separate and in addition to complying with Australian export control laws, you may need to comply with the export control regimes of the foreign countries that you interact with over the course of conducting business.
If you intend to export, import, retransfer (change end use or end user), or transit through a foreign country, a controlled item, or engage in a controlled activity, an authorisation from that country may be required. What activities and items are controlled will depend upon the specific country’s export control regime.
For example, the United States controls the export, import and use of defence and dual-use goods and services both within its borders and extra-territorially (this is the same for Australia, too). If you wish to deal with US sourced items or services, or export them from or import them to Australia, you will need to comply with both Australian and US export control regimes.
The US International Traffic in Arms Regulations (ITAR) are a complex set of export controls for defence goods and services. The US Munitions List (USML) is a document akin to the Australian DSGL in that it lists items and services which are controlled by US ITAR. For example, the USML includes information on rockets, space launch vehicles and satellites that are regulated by ITAR and managed by the US Department of State, Directorate of Defense and Trade Controls (DDTC). If you intend to deal with these items or related services listed in the USML or to export or import them to or from the US, it is important that you consult ITAR as you will require an ITAR authorisation and be required to comply with strict regulations.
If you wish to deal with US dual-use goods and services or export or import dual-use items to or from the US, then you will need to consult the US Commerce Control List (CCL). This list is regulated by the Export Administration Regulations (EAR) and managed by the US Department of Commerce, Bureau of Industry and Security. The CCL lists controlled dual-use items, which are enumerated under 9 categories, include the following:
- Category 6 – Sensors and Lasers
- Category 7 – Navigation and Avionics
- Category 9 – Aerospace and Propulsion
For example, under category 9, aerospace and propulsion, space launch vehicles, spacecraft and spacecraft buses are all listed under items that are controlled (see here, page 3). All items and activities listed under the CCL require EAR authorisations.
Contacts for ITAR
Seek advice about ITAR compliance If you are dealing with US goods and services or exporting or supplying to the US.
For advice related to industry, contact the Centre for Defence Industry Capability (CDIC):
- Email: cdic@business.gov.au
Phone: 13 28 46
Website: www.business.gov.au/centre-for-defence-industry-capability
For advice related to defence, contact the Directorate of Materiel Exports Control:
- Directorate of Materiel Exports Control
Email: materiel.exports@defence.gov.au
Useful links for ITAR:
- US Export Control
- ITAR Authorisations
- Bureau of Industry and Security
- Commerce Control List (CCL)
- Directorate of Defense Trade Controls
- Export Administration Regulations (EAR)
- International Traffic in Arms Regulations (ITAR)
- Nuclear Regulatory Commission
- United States Department of Energy
- United States Munitions List (USML)
What to do next
Establish a relationship with DEC
- The DEC team is considered to be extremely helpful and proactive by many Australian space entrepreneurs. Establishing a relationship with DEC is highly recommended for any space entrepreneur wishing to export or supply their goods, software or technology.
Use the Online DSGL Tool and other useful resources
- Take advantage of the many helpful self-assessment tools and useful resources such as the Online DSGL Tool. Through this tool, DEC has provided a number of short questionnaires which can help you to save time and establish whether or not you require a permit to export with ease.
- DEC also provides useful sector-specific guides which may be of interest to you or cross over into your space activities. DEC has not published a guide specific to the space sector, however, you are able to contact DEC directly regarding all your space-sector specific questions.
Frequently Asked Questions
Remember, ‘controlled’ goods are listed in the Defence and Strategic Goods List (DSGL). You may check to see whether the goods, software or technology you wish to export are controlled by conducting your own assessment through the online DSGL tool. You may also seek a formal assessment through Australian Defence Export Control (DEC) by submitting an Application to Export Controlled Goods and Technology Form.
Advise DEC that your application is urgent.
If your application is not sensitive, DEC will attempt to process your application faster than the typical 15 working day timeframe. However, a faster turn-over cannot always be guaranteed.
It depends on whether your export application is ‘sensitive’ or non-sensitive’:
- For non-sensitive export permit applications, DEC will attempt to issue your permit as quickly as possible. The time frame for processing is up to 15 working days.
- For sensitive export applications, DEC will need to consult with other government agencies leading to a longer processing time of up to 35 working days, or longer depending on how sensitive the application is.
You might not be able export certain goods, technology or software to countries which have been sanctioned through the regimes Australia has implemented: the United Nations Security Council (UNSC) sanctions regimes and Australian autonomous sanctions regimes.
Defence Export Control does not provide a specific list of countries that you may not export to, however, the Department of Foreign Affairs and Trade (DFAT) has information on their website which may assist you.
Sanctions change regularly, so it is important that you frequently consult the DFAT website before exporting your goods. You can make enquiries and applications related to sanctions via the DFAT Online Sanctions Administration System (OSAS).