Australia — Export Controls

Australia's export-control regime for military and dual-use items is governed primarily by the Defence Trade Controls Act 2012 (DTC Act), which received Royal Assent on 13 November 2012. Section 3 of the DTC Act provides that the Act "regulates dealings in items listed in Part 1 or 2 of the Defence and Strategic Goods List and in items covered by the Defense Trade Cooperation Treaty between Australia and the United States of America."

The Defence and Strategic Goods List (DSGL) is a legislative instrument made under the Customs Act 1901 and the DTC Act that specifies the goods, technology, and software regulated under Australian export-control laws. The DSGL is structured in two parts: Part 1 (Munitions List) covers military goods and technologies and non-military lethal goods and technologies, while Part 2 (Dual-Use List) covers dual-use goods and technologies. The DSGL is amended periodically to reflect changes in the control lists maintained by four multilateral export-control regimes of which Australia is a member: the Wassenaar Arrangement, the Missile Technology Control Regime, the Australia Group, and the Nuclear Suppliers Group. Within Part 2, items are further categorized into ten categories (0–9) with five subcategorizations: Systems/Equipment/Components; Test/Inspection/Production Equipment; Materials; Software; and Technology.

Core offences under the DTC Act prohibit, absent a permit or exemption, the following activities:

• Section 10: Supply of DSGL technology from a place in Australia to a place outside Australia, or publishing DSGL technology from a place in Australia with the intention of making it available to persons outside Australia
• Section 10A (effective 1 March 2025): Supply of DSGL technology at a place in Australia to a foreign person who is not an exempt foreign person
• Section 10B (effective 1 March 2025): Supply of DSGL goods or DSGL technology by a person outside Australia, where the goods or technology have been exported or supplied from Australia, and the person knows or is reckless as to whether the export or supply was from Australia
• Section 10C (effective 1 March 2025): Provision of DSGL services relating to Part 1 of the DSGL to a foreign person outside Australia

Sections 10A, 10B, and 10C were inserted by the Defence Trade Controls Amendment Act 2024, which received assent on 8 April 2024, commenced on 1 September 2024, and (pursuant to subsection 2(1) item 4 of the Amendment Act) brought the offence provisions into effect six months after commencement.

The DTC Act extends jurisdiction to "intangible" transfers—section 4 defines "supply" to include supply by electronic or other intangible means, and section 4 defines "publish" to include making available by electronic means or on the internet. Intangible supply includes transmission of DSGL technology by email, fax, telephone, video conferencing, or providing access to electronic files or presentations containing DSGL technology. The Act applies to industry, universities, and research sectors.

Permit authority and decision criteria: The Minister for Defence issues permits under Part 2 of the DTC Act. Section 33 of the DTC Act empowers the Minister to give directions to avoid prejudice to the security, defence, or international relations of Australia. Before issuing a permit under the DTC Act or the parallel Customs Act regime, the Minister must consider criteria set out in the DTC Act and the Defence Trade Controls Regulations 2013, including whether the export or supply would prejudice Australia's security, defence, or international relations.

Customs Act overlay for tangible exports: For physical exports of tangible goods, the Customs Act 1901—via Regulation 13E of the Customs (Prohibited Exports) Regulations 1958—prohibits the export from Australia of tangible military and dual-use goods and technology on the DSGL unless a permit is produced to a Collector of Customs before exportation. Section 112BA of the Customs Act functions as a catch-all provision: the Minister for Defence may give notice prohibiting a person from exporting goods (whether or not on the DSGL) to a particular place or particular person if the Minister suspects on reasonable grounds that the goods would or may be for a military end-use that would prejudice the security, defence, or international relations of Australia. Under section 112BC, the Minister must cause a statement to be tabled in each House of Parliament within 15 sitting days after giving a prohibition notice under section 112BA.

WMD Act: The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act) regulates goods, technology, or services that could be used in, or assist, a weapons of mass destruction program. The Minister for Defence may prohibit export or supply, or issue a permit for export or supply, if it aligns with Australia's international or treaty obligations or the national interest.

AUKUS reforms: The Defence Trade Controls Amendment Act 2024 introduced reforms including a national exemption for the United Kingdom and the United States from Australia's export-control permit requirements under the DTC Act. The reforms support the AUKUS framework by removing licensing requirements for most military goods and technology exported, re-exported, or transferred in-country to or within the three AUKUS partners, subject to conditions and exclusions set out in the Act and Defence Trade Legislation Amendment Regulations 2024.

Administrative review: Part 7 of the DTC Act provides for internal review by the Minister of reviewable decisions (section 64), followed by review by the Administrative Review Tribunal (section 65).

The Department of Defence administers the export-control regime through Defence Export Controls (DEC).

Source: Defence Trade Controls Act 2012 Source: Defence and Strategic Goods List 2024, F2024L01024 Source: Customs Act 1901 Source: Defence Trade Controls Amendment Act 2024, C2024A00021 Source: Department of Defence – Legislation

Australian export-control permits for DSGL goods and technology are issued by the Minister for Defence under Part 2 of the Defence Trade Controls Act 2012 or under Regulation 13E of the Customs (Prohibited Exports) Regulations 1958 for tangible exports. All permit applications are lodged through the My Australian Defence Exports (MADE) portal.

Client registration: A Defence Exports Control Client Reference Number (DCRN) is required when applying for permits. Applicants must register on the MADE portal to obtain a DCRN before submitting applications. The prior Defence Export Control System (DECS) registration process has been replaced by MADE.

Application types: The MADE portal provides separate application workflows for different categories of regulated activity. Applications are assessed by Defence Export Controls (DEC) on a case-by-case basis against specific legislative criteria. A permit is required only when an export, supply, brokering, or publishing activity is controlled under the DSGL and no exemption applies. DEC may issue different types of permit according to need and an assessment of the circumstances.

Assessment criteria: Under section 33 of the Defence Trade Controls Act 2012, the Minister (or delegate) assessing a permit application "must have regard to the criteria prescribed by the regulations for the purposes of this paragraph"—specifically section 8 of the Defence Trade Controls Regulation 2013—"and may have regard to any other matters that the Minister, delegate of the Minister or Secretary considers appropriate." The central question is whether the proposed export, supply, or provision would prejudice Australia's security, defence, or international relations.

If a delegate concludes that an activity would prejudice security, defence, or international relations, the delegate must refer the matter to the Minister to decide personally under subsections 73(7) and (8) of the Act. Applications that are considered sensitive may be referred to other areas within Defence or to other Australian Government agencies for consideration.

Supporting documentation: Applicants should ensure that all required information is supplied at the time of lodgement to facilitate timely assessment. Defence recommends providing technical specifications, brochures, product marketing material, end-user certificates, or other relevant documentation. Large supporting documents should be scanned in black and white or greyscale only. "Providing us with specifications, brochures, or other relevant marketing material for the goods you wish to export can help to prevent delays."

For Section 10A supplies of DSGL technology to foreign persons within Australia who are citizens of the Five Eyes alliance countries (Canada, New Zealand, the United Kingdom, and the United States of America), applicants "will no longer need to provide detailed information on proposed individual end users. It will be sufficient to provide the proposed end user's citizenship only."

Processing timeframes: "Other than in exceptional circumstances, the assessment time for routine applications is up to 15 working days, (commencing from the date a complete application, with all supporting documentation, is received). For applications requiring referral to other agencies, the assessment time is up to 35 working days and sometimes longer for highly complex applications." DEC publishes regular reports on performance against these targets. When an applicant submits an application, DEC sends an automated response advising that the application has been received. Applicants who do not receive the automated email within 48 hours should contact DEC at 1800 66 10 66 to follow up.

Group and project permits: Defence can simplify the export-approval process for groups working on a joint project or collaborative activity. Defence can accept an application from a single applicant applying on behalf of other applicants and issue similar permits to each of the individuals or organisations listed on the application. Only one person submits an application on behalf of all other parties who will require an export permit. Each of the parties named on the application will be issued with a separate permit. Organisations may also match permits to contracts to help manage export-control compliance; this may be useful for contracts with Defence as well as sustainment or warranty agreements. As part of the application, the expiry date, name/title of the contract, and documentary evidence of the contract will need to be provided.

Permit issuance and conditions: The permit will be emailed to the person submitting the application. "In some instances permissions and permits may be issued with conditions." DEC does not charge fees to assess applications or to provide permissions or permits.

Amendment and cancellation: DEC can amend permits once issued. Requests to amend permits must be made via email to DECO@defence.gov.au. DEC cannot remove information from an existing permit; if the permit holder wishes to reduce the scope of an existing permit, the permit holder should advise DEC that the existing permit should be cancelled and submit a new application.

Customs integration for tangible exports: For physical exports of tangible goods controlled under the DSGL, the exporter must complete an Australian Customs Export Declaration Notice (Form B957). An Australian Customs Export Declaration Notice can be obtained on the Australian Border Force website. The exporter will need the DEC permission number to complete the Export Declaration Notice.

Source: Department of Defence – Permits Source: Department of Defence – Applications and pre-notification Source: Department of Defence – Application Process Source: Defence Trade Controls Act 2012, section 33 Source: Defence Trade Controls Regulation 2013

Determining whether goods, software, or technology are controlled under the Defence and Strategic Goods List is the threshold export-control question for every Australian exporter. The Defence and Strategic Goods List 2024 (DSGL) is a legislative instrument made under paragraph 112(2A)(aa) of the Customs Act 1901 and the Defence Trade Controls Act 2012. It specifies military and dual-use items subject to export-control regulation in Australia and is divided into Part 1 (Munitions List) covering military goods, technologies, and non-military lethal goods (ML 901–910 for firearms and explosives), and Part 2 (Dual-Use List) covering items developed for commercial needs but potentially useful in military systems or WMD programs.

Part 2 structure: The Dual-Use List contains ten categories (0–9): Category 0 (Nuclear materials, facilities and equipment), Category 1 (Materials, chemicals, microorganisms 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), and Category 9 (Aerospace and Propulsion). Within each category, entries use a five-subcategory suffix structure: A (Systems/Equipment/Components), B (Test/Inspection/Production Equipment), C (Materials), D (Software), and E (Technology).

Reading the DSGL: The DSGL uses defined terms in quotation marks—section 12.17 of the DSGL provides that "terms in 'quotation marks' are defined terms (see Division 4—Definitions)." Words appearing without quotation marks take their ordinary dictionary meaning. The Notes, Technical Notes, and Nota Bene (N.B.) appearing throughout the DSGL "form an integral part of the control text" under section 3.2. Section 3.3 provides that "the object of the controls contained in the Defence and Strategic Goods List should not be defeated by the export of any non-controlled goods (including plant) containing one or more controlled components when the controlled component or components are the principal element of the goods and can feasibly be removed or used for other purposes." In judging whether a controlled component is the principal element, it is necessary to weigh quantity, value, technological know-how, and other special circumstances.

General Technology Note (GTN): Section 3.9 of the DSGL sets out the GTN, which governs classification of intangible technology. The GTN provides that (1) the export of "technology" which is "required" for the "development", "production" or "use" of goods controlled in Categories 1 to 9 is controlled according to the provisions of Categories 1 to 9; (2) "technology" "required" for the "development", "production" or "use" of goods under control remains under control even when applicable to non-controlled goods; (3) controls do not apply to "technology" which is the minimum necessary for the installation, operation, maintenance (checking) and repair of goods which are not controlled or whose export has been authorised (subject to specified exceptions); and (4) controls on "technology" transfer do not apply to information "in the public domain", to "basic scientific research" or to the minimum necessary information for patent applications.

Technology exemptions: The DSGL contains three standing exemptions for otherwise-controlled technology. Public domain (section 1-9 of the Explanatory Statement to F2024L01024): if technology is already available to the public—for example, in publications, product brochures, public blogs, websites, podcasts, or databases—it is not controlled. This exemption applies to all software and technology listed in the DSGL. Basic scientific research: section 27.13 of the Department of Defence guidance provides that basic or applied research conducted in circumstances where the results are intended for public disclosure (or would ordinarily be published or shared broadly) and are not subject to any restrictions on disclosure for purposes connected with the security or defence of Australia or any foreign country is exempt. This exemption does not apply to nuclear technology listed in Category 0. Patent applications: supply of DSGL technology for the purpose of seeking a patent in Australia or overseas—including lodging a patent application and supplying DSGL technology to a Patent Office, patent attorney, research collaborator, or patent review panel directly associated with lodging a patent application or the patent examination process—is exempt. Supply for a purpose not directly related to seeking a patent will generally require a permit.

Chemicals and CAS numbers: Section 3.5 of the DSGL provides that in some instances, chemicals are listed by name and CAS number, but the list applies to chemicals of the same structural formula (including hydrates, isotopically-labelled forms, or all possible stereoisomers) regardless of name or CAS number. CAS numbers are shown to assist in identifying a particular chemical or mixture, irrespective of nomenclature, but CAS numbers cannot be used as the sole basis for determining whether a chemical is controlled.

Self-help classification tool: Defence Export Controls provides a self-help tool accessible via the My Australian Defence Exports (MADE) portal that can clarify the control status of various goods, technology, or services. The Department of Defence recommends a step-by-step classification approach: (1) check whether the manufacturer can provide an Export Controls Classification Number (for example, ECN, ECCN, USML from the exporting jurisdiction)—if available, this classification number should have an equivalent DSGL control number under a similar category; (2) search the DSGL text using the control-F function in the legislation at legislation.gov.au to search for key words, keeping searches short and simple (for example, searching for "neural network" will yield no results, but searching for "neural" will find "neural computer"); (3) do not look for brand names—items in the DSGL are referred to by generic names; (4) search for relevant synonyms (the DSGL does not include all synonyms—for example, Unmanned Aerial Vehicles, Uncrewed Aerial Systems); and (5) note the terminology and acronyms used in the DSGL.

Catch-all provisions: Exports of non-controlled goods, services, software, or technology may still fall under export-control catch-all legislation. This can occur where there is a suspicion that they may be used for a military end-use or WMD program under section 112BA of the Customs Act 1901 or the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995. Where this possibility exists, exporters should contact Defence Export Controls for advice on the control status of their goods, technology, or services.

Formal classification assessment: Exporters uncertain about the classification of their items may submit an Application to Export Controlled Goods and Technology form to Defence Export Controls requesting a formal assessment of the status of goods, technology, or services. Defence Export Controls does not charge fees to assess applications or to provide permissions or permits.

Source: Defence and Strategic Goods List 2024, F2024L01024 Source: Explanatory Statement to Defence and Strategic Goods List 2024 Source: Department of Defence – Defence and Strategic Goods List Source: Department of Defence – The Defence and Strategic Goods List

Australia's export-control regime imposes criminal penalties for violations of the Defence Trade Controls Act 2012 (DTC Act) and the Customs Act 1901, alongside administrative enforcement mechanisms including voluntary disclosure, infringement notices, and permit revocation. Penalties are calibrated to the severity of the breach and the nature of the controlled item.

## Criminal offences and maximum penalties under the DTC Act

The DTC Act establishes criminal offences for unauthorised supply, publication, brokering, and provision of services relating to DSGL goods and technology. The principal offences carry a maximum penalty of imprisonment for 10 years or 2,500 penalty units, or both. This maximum penalty applies to offences under:

• Section 10: supply of DSGL technology from a place in Australia to a place outside Australia, or publishing DSGL technology from Australia with the intention of making it available to persons outside Australia, without a permit or in contravention of a permit condition or a Ministerial prohibition notice under section 14;
• Section 10A: supply of DSGL technology at a place in Australia to a foreign person who is not an exempt foreign person (the "deemed export" offence), without a permit or in contravention of a permit condition or prohibition notice;
• Section 10B: supply of DSGL goods or DSGL technology by a person outside Australia, where the goods or technology have been exported or supplied from Australia, and the person knows or is reckless as to whether the export or supply was from Australia;
• Section 10C: provision of DSGL services relating to Part 1 of the DSGL to a foreign person outside Australia.

Sections 10A, 10B, and 10C were inserted by the Defence Trade Controls Amendment Act 2024, which received assent on 8 April 2024. Pursuant to item 47 of Schedule 1 to the Amendment Act, sections 10A, 10B, and 10C apply to conduct occurring on or after "the start day," defined as the day after the end of the period of 6 months beginning on commencement (1 September 2024)—that is, 1 March 2025. A compliance transition period applied from 1 September 2024 to 1 March 2025; from 1 March 2025, the full penalty provisions for these new offences are in effect.

Penalty unit conversion: The Department of Defence states that as of 2025, "those prosecuted for new offences may face a penalty of up to 10 years imprisonment or a fine up to 2,500 penalty units ($782,500)." The dollar value of a penalty unit is set by section 4AA of the Crimes Act 1914 and is indexed annually on 1 July. The specific 2025 dollar amount cited by DEC ($782,500) implies a penalty unit value of $313.00, though the authoritative conversion is prescribed in the Crimes Act 1914 and updated by legislative instrument each financial year.

Permit condition breach: Breach of a condition on a permit issued under the DTC Act is an offence under section 13 of the DTC Act, carrying a penalty of 60 penalty units. Section 13(2) provides that an offence against subsection (1) is an offence of strict liability under section 6.1 of the Criminal Code.

False or misleading statements: Under section 136.1 of the Criminal Code Act 1995, any person who makes a false or misleading statement in an application for a permit or certificate commits an offence.

## Customs Act offences — tangible exports

For physical exports of tangible DSGL goods, the Customs Act 1901 and Regulation 13E of the Customs (Prohibited Exports) Regulations 1958 prohibit export without a permit. Exporting goods without the required permission is an offence under section 233BAB of the Customs Act 1901. The Department of Defence states that such an offence "can attract a penalty of up to A$450,000 and/or imprisonment for up to 10 years." Section 233BAB references penalties for strict-liability and fault offences in relation to prohibited exports; the maximum penalties are specified in the Customs Act for these offence types.

## Administrative enforcement tools

Voluntary disclosure: Defence Export Controls encourages voluntary disclosure if a person suspects non-compliance with export-control obligations. Defence states: "If there is a suspicion of non-compliance, a voluntary disclosure must be made." A voluntary disclosure may be made to DEC by email to DECO@defence.gov.au. Voluntary disclosure is a key element in Defence's proactive compliance approach and may influence the enforcement response.

Infringement notices and penalties: A breach of a permit under the three new permit types introduced by the Defence Trade Controls Amendment Act 2024 (sections 10A, 10B, 10C) can result in serious penalties, ranging from issuance of infringement notices through to criminal prosecution. Defence states: "Breaching export controls is a criminal offence that in certain circumstances may result in severe penalties (including prosecution) being applied."

Permit revocation and amendment: Under section 12 of the DTC Act, the Minister may vary or revoke a permit. Section 112B of the Customs Act 1901 provides for the invalidation of a licence, permission, or consent for false or misleading information. A permission may be revoked at the discretion of the Minister for Defence; in such event, the procedures outlined in section 112(2AB) of the Customs Act 1901 apply.

Ministerial prohibition notices: The Minister for Defence may issue prohibition notices under section 14 of the DTC Act prohibiting a person from supplying particular DSGL technology if the Minister reasonably believes the supply would prejudice Australia's security, defence, or international relations. Supply in contravention of a prohibition notice is itself a criminal offence under the relevant section of the DTC Act. Similarly, under section 112BA of the Customs Act 1901, the Minister may give notice prohibiting a person from exporting goods (whether or not on the DSGL) to a particular place or particular person if the Minister suspects on reasonable grounds that the goods would or may be for a military end-use that would prejudice the security, defence, or international relations of Australia. Under section 112BC, the Minister must cause a statement to be tabled in each House of Parliament within 15 sitting days after giving a prohibition notice under section 112BA.

## Record-keeping obligations

Exporters are required to maintain records for five years from the date of exportation under the Customs Act 1901. Permit holders should retain all documentation supporting permit applications, supporting documents provided to Defence Export Controls, and records of all actual exports or supplies made under a permit. Reporting conditions are frequently applied to export approvals covering multiple shipments; exporters are required to submit regular reports detailing the exports (including nil returns) made under the permission.

## Compliance principles and approach

Defence Export Controls administers the export-control regime under a proactive regulatory model. Defence states: "Defence promotes proactive regulation. This is done by providing education and tools that emphasise the benefits of compliance and ethical corporate behaviour." Defence recommends that regular, large-scale, or sensitive technology exporters implement an Export Control Compliance Program. Voluntary disclosure and self-reporting are encouraged to manage risk and demonstrate due diligence.

Sanctions overlay: Export activities may also be subject to United Nations Security Council sanctions or Australian Autonomous Sanctions administered by the Australian Sanctions Office (within the Department of Foreign Affairs and Trade). The Department of Defence notes: "Please note that an export may be subject to United Nations Security Council or Australian Autonomous Sanctions. More information on sanctions, including non-compliance with sanctions, is available on the Department of Foreign Affairs and Trade website." Non-compliance with sanctions is regulated separately from export controls.

Source: Department of Defence – Penalties and breaches Source: Defence Trade Controls Act 2012, sections 10, 10A, 10B, 10C, 13 Source: Defence Trade Controls Amendment Act 2024, Schedule 1 item 47 Source: Customs Act 1901, sections 112BA, 112BC, 233BAB Source: Department of Defence – Compliance

Australian export-control law imposes obligations on exporters to assess the risk that goods, technology, or services will be diverted to weapons-of-mass-destruction (WMD) programs or military end-uses that would prejudice Australia's security, defence, or international relations. These obligations arise from the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (WMD Act) and the Military End-Use (MEU) catch-all provision in section 112BA of the Customs Act 1901. Both operate independently of the Defence and Strategic Goods List and can prohibit exports of otherwise-uncontrolled items.

## WMD Act catch-all — belief or suspicion triggers liability

The WMD Act regulates any goods, technology, or provision of services that could be used in, or assist, a WMD program, even if not listed on the DSGL. Section 9 prohibits the supply of goods within or outside Australia if "the person believes or suspects that the goods will or may be used" in a WMD program. Section 10 prohibits export from Australia if the person believes or suspects such use. Section 11 prohibits provision of services if the person believes or suspects the services will or may assist a WMD program.

WMD program definition: Under section 3, a WMD program means "a plan or program for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons." This includes component development, production technology, precursor materials, and delivery systems—not just complete weapons.

Mental element: The offences turn on whether the exporter "believes or suspects" WMD use. The Department of Defence states that "the export of otherwise uncontrolled goods, where there are grounds for believing or suspecting they will or may be used in WMD, is a criminal offence." An exporter who learns facts giving rise to reasonable suspicion—for example, that the end-user is government-owned and the country is suspected by the international community of developing a covert chemical weapons program, or that the stated end-use is inconsistent with the customer's technical capacity—should submit an Application to Export Controlled Goods and Technology form to Defence Export Controls before proceeding. Defence guidance provides an illustration: an Australian company planning to export pumps to a government-owned chemical company in a country suspected of developing a covert chemical weapons program should submit an application even though the pumps are not regulated by the DSGL.

Jurisdiction: The WMD Act binds Australian citizens, persons normally resident in Australia, and bodies incorporated in Australia or an external Territory, whether doing business in Australia or overseas. It also binds foreigners doing business in Australia. The prohibitions apply to supply and provision of services both within and outside Australia.

Ministerial powers: Under section 14, the Minister for Defence may give notice prohibiting the supply or export of goods or provision of services if the Minister "reasonably believes" the activity will or may be used in, or assist, a WMD program. Under section 13, the Minister may issue a permit authorizing an otherwise-prohibited export or supply if it aligns with Australia's international or treaty obligations or the national interest.

## Military End-Use catch-all — section 112BA of the Customs Act

Section 112BA of the Customs Act 1901 authorizes the Minister for Defence to prohibit the export of tangible goods not listed on the DSGL if the Minister "suspects on reasonable grounds that, if a person were to export particular goods to a particular place or to a particular person, the goods would or may be for a military end-use that would prejudice the security, defence or international relations of Australia."

Military end-use definition: Subsection 112BA(4) provides that goods are or may be for a military end-use if the goods are or may be for use in 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. This definition extends beyond state militaries to non-state armed groups.

Prohibition notice: Under subsection 112BA(1), the Minister may give the exporter a notice prohibiting export to the particular place or particular person. The notice must set out the Minister's reasons, except any whose disclosure the Minister believes would prejudice Australia's security, defence, or international relations (subsections (2) and (3)). Exporting goods in contravention of a prohibition notice is an offence under subsection 112BA(5), punishable by imprisonment for 10 years or 2,500 penalty units, or both.

Border enforcement: The Australian Border Force screens cargo at the border using intelligence, targeting, and profiling techniques, and will refer exports to Defence Export Controls for assessment to determine whether goods are controlled by the WMD Act or may be for a military end-use. During the assessment, ABF may hold the goods pending DEC's assessment. If DEC assesses that the goods cannot be used in a WMD program or for the military end-use of concern, it will advise ABF, which then decides whether to release the goods for export.

## Due-diligence guidance — Defence Export Controls recommendations

Defence Export Controls states that "exporters should take reasonable steps to screen consignees, end users, and overseas collaborators to establish, as far as possible, that the goods, software or technology will be used for legitimate purposes. This could be done by checking that the goods, software or technology are consistent with the stated end-use and compatible with the recipient's business, and that no other red flags are raised."

Defence identifies that "identifying red flags early can help prevent the exported goods from falling into the wrong hands." While Defence does not publish an exhaustive list of red flags, the screening process should address:

• Stated end-use consistency: Does the technical specification match the customer's stated application?
• Customer business compatibility: Does the customer have the technical capacity, business history, and infrastructure to use the goods or technology for the stated purpose?
• Destination country risk: Is the destination a country developing or suspected of developing WMD, subject to sanctions, or whose foreign policies pose a risk of major disruption in global stability?
• Customer ownership and control: Is the end-user government-owned, state-controlled, or affiliated with a military, intelligence, or security service?

Export Control Compliance Program (ECCP): Defence recommends that organizations who regularly require permits implement an ECCP to follow best practice for compliance. An effective ECCP typically includes procedures for classification, screening, application management, recordkeeping, and training. Defence notes that an ECCP could designate an area of the organization to hold operational responsibility for export-control compliance.

Voluntary disclosure: Defence states that "if there is a suspicion of non-compliance, a voluntary disclosure must be made." Voluntary disclosure may be made to DEC by email to DECO@defence.gov.au. Voluntary disclosure is a key element in Defence's proactive compliance approach and may influence the enforcement response.

## Assessment criteria — regulation 8 of the Defence Trade Controls Regulation 2013

When assessing a permit application, Defence Export Controls must consider whether the proposed export, supply, or provision would prejudice Australia's security, defence, or international relations, having regard to criteria prescribed in regulation 8 of the Defence Trade Controls Regulation 2013. These criteria include:

• The risk that the DSGL goods or technology may go to or become available to a country that is developing, or is reasonably suspected of developing, WMD;
• The risk that the goods or technology may go to a country whose actions or foreign policies pose a risk of major disruption in global stability;
• The risk that the goods or technology may be used to commit or facilitate serious abuses of human rights;
• Whether the supply or publication may contribute to an existing threat to international peace and security or to political instability in a region;
• The risk that the goods or technology may go to a country upon which the UN Security Council or Australia has imposed a sanction.

Defence may refer sensitive applications to other areas within Defence or to other Australian Government agencies. If a delegate concludes that an activity would prejudice security, defence, or international relations, the delegate must refer the matter to the Minister to decide personally under subsections 73(7) and (8) of the Defence Trade Controls Act 2012.

## Parallel sanctions regime

Export activities may also be subject to United Nations Security Council sanctions or Australian Autonomous Sanctions administered by the Australian Sanctions Office within the Department of Foreign Affairs and Trade (DFAT). Sanctions restrict or prohibit exports of specified goods to particular countries or designated individuals and entities, and are implemented principally by the Charter of the United Nations Act 1945, the Autonomous Sanctions Act 2011, and the Customs Act 1901. Non-compliance with sanctions is a separate criminal offence from export-control violations under the DTC Act, WMD Act, or Customs Act. Exporters should check the DFAT Consolidated List of persons and entities subject to targeted financial sanctions as part of their screening process.

Source: Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 Source: Customs Act 1901 Source: Department of Defence – How does WMD legislation affect me? Source: Department of Defence – Best practice measures Source: Defence Trade Controls Regulation 2013