In 2024 significant changes to Australia’s export laws were made. The changes amended the Defence Trade Controls Act 2012 (Cth) (DTC Act).
Although the changes commenced on 1 September 2024, there was a transition period before offences under the new regime applied. The offence provisions commence on 1 March 2025. Impacted entities have been busy seeking permits and implementing measures to comply with the new regime.
Several new concepts have been added to the DTC Act that entities are needing to understand and apply to their activities. In particular, the changes will require entities to understand to a greater extent how subject-matter controlled under the Defence and Strategic Goods List (DSGL) is used and made available in their activities.
Some changes implement Australia’s commitments under AUKUS by removing the need to obtain a permit for supply of most DSGL controlled items from Australia to the UK and US to facilitate technology transfer between AUKUS partners. Certain registration and record-keeping requirements apply to use this “AUKUS licence-free environment”.
There have been a range of consequential changes to and new instruments issued pursuant to the DTC Act. Additionally, changes were made to the Customs (Prohibited Exports) Regulations 1948 (Cth) to address related requirements for tangible exports from Australia.
New offences
Commencing 1 March 2025 are three new criminal offences for engaging in certain conduct without a permit unless an exception applies. In brief, the new offences are:
- Deemed Export Offence: Supplying “DSGL technology” to a relevant “foreign person” within Australia. A supply by an entity of DSGL technology to its Australian-located foreign person officer or employee is capable of being a supply of DSGL technology within the scope of this offence. Key actions employers are needing to take in response to the deemed export offence are to (a) identify where they might be supplying DSGL technology in the course of the entity’s activities to its workforce in Australia; and (b) screen that workforce for citizenship and permanent residency against the list of authorised foreign countries for which no permit is required.
- Re-Supply Offence: Supplying a defined sub-set of DSGL goods or DSGL technology between places outside Australia to a relevant foreign person. The re-supply element arises because the offence is triggered where such DSGL goods or DSGL technology required an earlier permit to be exported or supplied from Australia to a place outside Australia.
- Services Offence: An Australian person providing certain types of assistance (including training) from outside Australia in relation to munitions goods or technology listed in Part 1 of the DSGL to relevant foreign persons. For example, if an entity wishes to send a subject matter expert from Australia to provide design advice on munitions technology to a foreign person in another country, a permit may now be needed to undertake those types of services.
Tips in navigating the new regime
Defence Export Controls (DEC), which administers the Australian export controls regime, has made numerous changes to its online permit application processes and information requirements for the new regime. Further changes to requirements are contemplated.
The new provisions contain some complexity. In particular this is due to the number of new definitions used and the numerous exception circumstances where no permit is required. The covered DSGL subject-matter and, to some extent, the exceptions for each offence differ. Even if an exception applies and no permit is needed, there still may be a requirement to register with DEC to be able to make use of the exception and / or keep records to demonstrate compliance (e.g., to make use of the “AUKUS licence-free environment”).
Entities need to ensure they give themselves sufficient time to navigate the changes and seek necessary permits or meet registration requirements before undertaking any newly regulated activities.
