Federal Register of Legislation - Australian Government

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A Bill for an Act to regulate dealings in certain goods, services and technologies, and for related purposes
Administered by: Defence
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Registered 07 Nov 2011
Introduced HR 02 Nov 2011

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Defence Trade Controls Bill 2011

 

No.      , 2011

 

(Defence)

 

 

 

A Bill for an Act to regulate dealings in certain goods, services and technologies, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Simplified outline................................................................................ 3

4............ Definitions.......................................................................................... 3

5............ US Defence Articles........................................................................... 7

6............ Crown to be bound............................................................................. 8

7............ Extension to external Territories.......................................................... 8

8............ Extension to things outside Australia.................................................. 8

9............ Severability—additional effect of Act................................................. 8

Part 2—Dealings in items in the Defence and Strategic Goods List     10

Division 1—Primary offences                                                                                10

10.......... Offences—supplies and provision of defence services in relation to the Defence and Strategic Goods List            10

11.......... Permits for purposes of section 10.................................................... 13

12.......... Changing permit conditions.............................................................. 15

13.......... Breaching permit conditions.............................................................. 16

14.......... Notice prohibiting activities............................................................... 16

Division 2—Brokering offences                                                                            19

15.......... Offence—arranging supplies and provision of defence services in relation to the Defence and Strategic Goods List.......................................................................................................... 19

16.......... Permits for purposes of section 15.................................................... 21

17.......... Changing permit conditions.............................................................. 23

18.......... Breaching permit conditions.............................................................. 23

Division 3—Registered brokers                                                                            25

19.......... Applying to be a registered broker.................................................... 25

20.......... Registering brokers........................................................................... 25

21.......... Renewing registration....................................................................... 27

22.......... Changing registration conditions....................................................... 29

23.......... Cancelling the registration of a broker............................................... 30

24.......... Register of Brokers........................................................................... 31

25.......... Extended meaning of conviction....................................................... 31

Part 3—Defense Trade Cooperation Treaty                                                       32

Division 1—Preliminary                                                                                            32

26.......... Simplified outline.............................................................................. 32

Division 2—Membership of the Australian Community                          33

27.......... Approval of bodies corporate as members of the Australian Community                33

28.......... Approval conditions.......................................................................... 35

29.......... Suspending an approval.................................................................... 38

30.......... Cancelling an approval...................................................................... 39

Division 3—Main offences                                                                                       41

31.......... US Defence Articles listed in the Defense Trade Cooperation Munitions List         41

32.......... US Defence Articles exempt from the scope of the Defense Trade Cooperation Treaty           47

Division 4—Ministerial directions                                                                       51

33.......... Ministerial directions—avoiding prejudice to the security, defence or international relations of Australia               51

34.......... Ministerial directions—suspension or cancellation of approvals....... 53

Division 5—Other matters                                                                                       55

35.......... Transition to the Defense Trade Cooperation Treaty......................... 55

36.......... Defense Trade Cooperation Munitions List...................................... 56

Part 4—Monitoring powers                                                                                           57

Division 1—Preliminary                                                                                            57

37.......... Simplified outline.............................................................................. 57

38.......... No limit on section 71....................................................................... 57

Division 2—Appointment of authorised officers and issue of identity cards       58

39.......... Appointment of authorised officers................................................... 58

40.......... Identity cards..................................................................................... 58

Division 3—Powers of authorised officers                                                      60

41.......... Authorised officer may enter premises.............................................. 60

42.......... Monitoring powers of authorised officers......................................... 60

43.......... Authorised officer may require person to answer questions or produce documents 62

44.......... Self‑incrimination.............................................................................. 63

Division 4—Obligations of authorised officers                                             64

45.......... Announcement before entry.............................................................. 64

46.......... Occupier to be informed of rights and responsibilities...................... 64

Division 5—Occupier’s rights and responsibilities                                     65

47.......... Occupier entitled to observe search................................................... 65

48.......... Occupier to provide authorised officer with facilities and assistance. 65

Division 6—Other matters                                                                                       66

49.......... Tampering etc. with things secured................................................... 66

50.......... Persons assisting authorised officers................................................ 66

51.......... Compensation for damage to electronic equipment........................... 66

Part 5—Information‑gathering powers                                                                  68

52.......... Secretary may obtain information and documents............................. 68

53.......... Copying documents—compensation................................................. 69

54.......... Secretary may inspect and copy original documents......................... 69

55.......... Secretary may retain copies of documents......................................... 69

56.......... Secretary may retain original documents........................................... 69

57.......... Self‑incrimination.............................................................................. 70

Part 6—Record‑keeping                                                                                                  71

58.......... Making and retaining records............................................................ 71

59.......... Production of records........................................................................ 72

60.......... Secretary may inspect and copy records............................................ 73

61.......... Secretary may retain records............................................................. 73

62.......... Self‑incrimination.............................................................................. 73

Part 7—Review of decisions                                                                                          75

63.......... Reviewable decisions........................................................................ 75

64.......... Internal review by Minister of reviewable decisions......................... 76

65.......... Review by the Administrative Appeals Tribunal............................... 77

Part 8—Other matters                                                                                                       78

66.......... Applications under Part 2 or 3.......................................................... 78

67.......... Notices, permits and approvals under this Act.................................. 78

68.......... Disclosure of reasons for decisions.................................................. 78

69.......... Disclosure of information and documents......................................... 79

70.......... Injunctions........................................................................................ 81

71.......... Forfeiture.......................................................................................... 82

72.......... Evidential certificates by Minister..................................................... 84

73.......... Delegation by Minister...................................................................... 84

74.......... Delegation by Secretary.................................................................... 86

75.......... Regulations....................................................................................... 87

 


A Bill for an Act to regulate dealings in certain goods, services and technologies, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Defence Trade Controls Act 2011.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 75

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) the day on which the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation done at Sydney on 5 September 2007 enters into force.

However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.

The Minister must announce by notice in the Gazette the day on which the Treaty enters into force.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Simplified outline

                   The following is a simplified outline of this Act:

•      This Act regulates dealings in items listed in the Defence and Strategic Goods List (the DSGL) and in items covered by the Defense Trade Cooperation Treaty between Australia and the United States of America.

•      Part 2 creates offences for persons who:

               (a)     engage in dealings relating to goods or technology listed in the DSGL; or

              (b)     arrange for other persons to engage in dealings relating to goods or technology listed in the DSGL.

•      Part 3 contains provisions implementing the Defense Trade Cooperation Treaty between Australia and the United States of America.

•      Part 4 deals with monitoring compliance with Parts 3 and 6.

•      Part 5 contains information‑gathering powers.

•      Part 6 deals with record‑keeping obligations.

•      Part 7 deals with review of decisions.

•      Part 8 deals with various other matters (such as injunctions, forfeiture of things and delegations).

4  Definitions

             (1)  In this Act:

Article 3(1) US Defence Article has the meaning given by section 5.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Article 3(3) US Defence Article has the meaning given by section 5.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Australia, when used in a geographical sense, includes the external Territories.

Australian Community facility means a facility covered by Article 4(1)(a) of the Defense Trade Cooperation Treaty.

Australian Community member means:

                     (a)  a body corporate that holds an approval under section 27; or

                     (b)  a person covered by Article 4(1)(b) of the Defense Trade Cooperation Treaty; or

                     (c)  a person:

                              (i)  who is employed, or is engaged under a contract for services, by a body corporate that holds an approval under section 27; and

                             (ii)  who satisfies the requirements prescribed by the regulations for the purposes of this subparagraph.

Australian person means:

                     (a)  the Commonwealth, a State or a Territory or an authority of the Commonwealth, a State or a Territory; or

                     (b)  an individual who is an Australian citizen; or

                     (c)  an individual who is, within the meaning of the Migration Act 1958, the holder of a permanent visa; or

                     (d)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

authorised officer means a person appointed as an authorised officer under section 39.

Defence and Strategic Goods List means the document:

                     (a)  formulated by the Minister, and published, as mentioned in paragraph 112(2A)(aa) of the Customs Act 1901; and

                     (b)  known as the Defence and Strategic Goods List;

as amended by the Minister and in force from time to time.

defence services, in relation to goods or in relation to technology relating to goods, means the giving of assistance (including training) in relation to the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarisation, destruction, processing or use of the goods or technology.

Defense Trade Cooperation Munitions List means the document made under section 36, as amended by the Minister and in force from time to time.

Defense Trade Cooperation Treaty means the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation done at Sydney on 5 September 2007, as amended from time to time.

Note:          In 2011, the text of the Treaty was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

foreign person means a person who is not an Australian person.

goods has the same meaning as in the Customs Act 1901.

Implementing Arrangements means the Implementing Arrangements (having effect from time to time) referred to in Article 14 of the Defense Trade Cooperation Treaty.

Note:          In 2011, the text of the Implementing Arrangements was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

incorporated goods has the meaning given by section 5.

manager of a body corporate means an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of the body’s affairs.

member of the United States Community means a person or body covered by Article 5(1) or (2) of the Defense Trade Cooperation Treaty.

monitoring powers has the meaning given by section 42.

offence against this Act includes the following:

                     (a)  an offence against section 6 of the Crimes Act 1914 that relates to this Act;

                     (b)  an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to this Act;

                     (c)  an offence that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code and that relates to this Act.

original goods has the meaning given by section 5.

person assisting an authorised officer has the meaning given by section 50.

premises includes the following:

                     (a)  a structure, building, caravan, vehicle, vessel or aircraft;

                     (b)  a place (whether or not enclosed or built on);

                     (c)  a part of a thing referred to in paragraph (a) or (b).

registered broker means a person in respect of whom a registration is in force under Division 3 of Part 2.

Secretary means the Secretary of the Department.

supply includes supply by way of sale, exchange, gift, lease, hire or hire‑purchase.

technology relating to goods means:

                     (a)  information relating to the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of the goods (including information in the form of blueprints, drawings, photographs, plans, instructions, specifications, algorithms or documentation); or

                     (b)  software relating to the goods;

other than information specified in an instrument under subsection (2).

             (2)  The Minister may, by legislative instrument, specify information for the purposes of the definition of technology in subsection (1).

5  US Defence Articles

Article 3(1) US Defence Article

             (1)  Article 3(1) US Defence Article means goods:

                     (a)  the initial movement of which is from a member of the United States Community to an Australian Community member, or to an Australian Community facility, for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and

                     (b)  listed in Part 1 of the Defense Trade Cooperation Munitions List immediately before the start of that movement.

             (2)  Goods incorporating an Article 3(1) US Defence Article within the meaning of subsection (1) are also an Article 3(1) US Defence Article.

             (3)  The modification of an Article 3(1) US Defence Article in any way does not affect the status of the goods concerned as an Article 3(1) US Defence Article.

Article 3(3) US Defence Article

             (4)  Article 3(3) US Defence Article means goods:

                     (a)  acquired by, and delivered to, the Government of Australia as mentioned in Article 3(3) of the Defense Trade Cooperation Treaty; and

                     (b)  listed in Part 1 of the Defense Trade Cooperation Munitions List at the time of that delivery.

             (5)  Goods incorporating an Article 3(3) US Defence Article within the meaning of subsection (4) are also an Article 3(3) US Defence Article.

             (6)  The modification of an Article 3(3) US Defence Article in any way does not affect the status of the goods concerned as an Article 3(3) US Defence Article.

Original goods

             (7)  Original goods means goods that are:

                     (a)  an Article 3(1) US Defence Article within the meaning of subsection (1); or

                     (b)  an Article 3(3) US Defence Article within the meaning of subsection (4).

Incorporated goods

             (8)  Incorporated goods means goods that are:

                     (a)  an Article 3(1) US Defence Article within the meaning of subsection (2); or

                     (b)  an Article 3(3) US Defence Article within the meaning of subsection (5).

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

6  Crown to be bound

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.

7  Extension to external Territories

                   This Act extends to every external Territory.

8  Extension to things outside Australia

                   Except so far as the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.

9  Severability—additional effect of Act

             (1)  Without limiting its effect apart from this section, this Act also has the effect it would have if its application were limited to:

                     (a)  giving effect to:

                              (i)  the Defense Trade Cooperation Treaty; or

                             (ii)  any international obligation of Australia arising otherwise than under the Defense Trade Cooperation Treaty; or

                     (b)  matters external to Australia; or

                     (c)  matters of international concern; or

                     (d)  the defence of Australia; or

                     (e)  things done, or omitted to be done, by constitutional corporations; or

                      (f)  things done, or omitted to be done, in the course of constitutional trade or commerce; or

                     (g)  things done using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or

                     (h)  things done by, or in relation to, aliens (within the meaning of paragraph 51(xix) of the Constitution).

             (2)  In this section:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

                     (a)  between Australia and places outside Australia; or

                     (b)  among the States; or

                     (c)  within a Territory, between a State and a Territory or between 2 Territories.


 

Part 2Dealings in items in the Defence and Strategic Goods List

Division 1Primary offences

10  Offences—supplies and provision of defence services in relation to the Defence and Strategic Goods List

Supplies

             (1)  A person (the supplier) commits an offence if:

                     (a)  the supplier supplies to another person technology relating to goods, where the technology is listed in the Defence and Strategic Goods List; and

                     (b)  either:

                              (i)  the supply is from a place in Australia to a place outside Australia, the supplier is a foreign person and the other person is a foreign person; or

                             (ii)  the supplier is an Australian person and the other person is a foreign person; and

                     (c)  either:

                              (i)  the supplier does not hold a permit under section 11 authorising the supply of the technology; or

                             (ii)  the supply of the technology contravenes a condition of a permit that the supplier holds under section 11; and

                     (d)  there is no notice in force under subsection 14(1) in relation to the supplier and the supply.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Provision of defence services

             (2)  A person (the provider) commits an offence if:

                     (a)  either:

                              (i)  the provider provides defence services to another person in relation to goods, where the goods are listed in the Defence and Strategic Goods List; or

                             (ii)  the provider provides defence services to another person in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List; and

                     (b)  either:

                              (i)  the defence services are received at a place outside Australia, the provider is an Australian person and the other person is a foreign person; or

                             (ii)  the defence services are received at a place in Australia and the other person is a foreign person; and

                     (c)  either:

                              (i)  the provider does not hold a permit under section 11 authorising the provision of the defence services; or

                             (ii)  the provision of the defence services contravenes a condition of a permit that the provider holds under section 11; and

                     (d)  there is no notice in force under subsection 14(1) in relation to the provider and the provision of the defence services.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Exceptions—Defense Trade Cooperation Treaty

             (3)  Subsection (1) does not apply if:

                     (a)  the supply is of technology relating to original goods; and

                     (b)  the supply is by an Australian Community member or by a member of the United States Community; and

                     (c)  the supply is to an Australian Community member or a member of the United States Community; and

                     (d)  the supply is for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and

                     (e)  at the time of the supply, the original goods are listed in Part 1 of the Defense Trade Cooperation Munitions List.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

             (4)  Subsection (2) does not apply if:

                     (a)  the defence services are provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the defence services are provided in relation to technology relating to original goods; and

                     (b)  the defence services are provided by an Australian Community member or by a member of the United States Community; and

                     (c)  the defence services are provided to an Australian Community member or a member of the United States Community; and

                     (d)  the defence services are for an activity referred to in Article 3(1)(a), (b), (c) or (d) of the Defense Trade Cooperation Treaty; and

                     (e)  at the time of the provision of the defence services, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the defence services are provided in relation to original goods or in relation to technology relating to original goods—the original goods;

                             (ii)  if the defence services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

Exceptions—Australian Defence Force members, APS employees and members of the police

             (5)  Subsection (1) does not apply if:

                     (a)  the technology is supplied by a person who is a member of the Australian Defence Force, an APS employee, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and

                     (b)  he or she supplies the technology in the course of his or her duties as such a person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code.

             (6)  Subsection (2) does not apply if:

                     (a)  the defence services are provided by a person who is a member of the Australian Defence Force, an APS employee, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and

                     (b)  he or she provides the defence services in the course of his or her duties as such a person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.

Exception—regulations

             (7)  Subsection (1) or (2) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3) of the Criminal Code.

Geographical jurisdiction

             (8)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) or (2).

Definition

             (9)  In this section:

place includes:

                     (a)  a vehicle, vessel or aircraft; and

                     (b)  an area of water; and

                     (c)  a fixed or floating structure or installation of any kind.

11  Permits for purposes of section 10

             (1)  A person may apply to the Minister for a permit under this section to do an activity that is:

                     (a)  the supply to another person of technology relating to goods, where the technology is listed in the Defence and Strategic Goods List; or

                     (b)  the provision of defence services to another person in relation to goods, where the goods are listed in the Defence and Strategic Goods List; or

                     (c)  the provision of defence services to another person in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List.

Note:          Section 66 sets out application requirements.

             (2)  An application under subsection (1) may:

                     (a)  cover more than one activity; and

                     (b)  cover a particular activity for a period described in the application.

Example 1: For paragraph (a)—a person applies for a permit to supply company A technology relating to particular goods and to provide defence services to company B in relation to other goods.

Example 2: For paragraph (b)—a person applies for a permit to supply company A technology relating to particular goods for a 3‑year period.

Minister’s decision

             (3)  If a person makes an application under subsection (1) in accordance with section 66, the Minister must decide whether or not to give the person a permit to do each activity covered by the application.

             (4)  The Minister may give the person a permit to do a specified activity if the Minister is satisfied that the activity would not prejudice the security, defence or international relations of Australia.

Note:          Section 67 deals with giving permits under this Act.

             (5)  A permit given by the Minister may:

                     (a)  cover more than one activity; and

                     (b)  cover a specified activity for a period specified in, or worked out in accordance with, the permit.

             (6)  If the Minister refuses to give the person a permit for an activity covered by the application, the Minister must give the person notice of the refusal and the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Permit conditions

             (7)  A permit given to a person is subject to any conditions specified in the permit.

Note:          Section 12 deals with changing permit conditions.

Revoking a permit

             (8)  The Minister may, by writing, revoke a permit given to a person under this section.

             (9)  However, the Minister may revoke the permit only if the Minister is satisfied that any activity covered by the permit would prejudice the security, defence or international relations of Australia.

           (10)  The Minister must give the person notice of the revocation and the reasons for the revocation. The revocation takes effect at the time the person receives the notice.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

12  Changing permit conditions

Imposing new conditions

             (1)  After giving a person a permit under section 11, the Minister may impose a new permit condition by giving the person notice of the condition. The notice must include the reasons for imposing the new condition.

Removing or varying conditions

             (2)  The Minister may remove or vary a condition of the permit by giving the person notice of the removal or variation. For a variation of a condition, the notice must include the reasons for the variation.

When new conditions or variations take effect

             (3)  The imposition of a new permit condition under subsection (1), or the variation of a permit condition under subsection (2), takes effect at the time specified in the notice, which must be at least 7 days after the day on which the notice is given.

             (4)  However, the notice may specify that the new permit condition or the variation takes effect at the time the person receives the notice if the Minister is satisfied that the new permit condition or variation needs to take effect then for reasons of urgency.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

13  Breaching permit conditions

             (1)  A person commits an offence if:

                     (a)  the person is the holder of a permit under section 11; and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches a condition of the permit.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

14  Notice prohibiting activities

             (1)  If the Minister believes or suspects that, if a person were to do one of the following activities in any circumstances or in particular circumstances:

                     (a)  supply to another person technology relating to goods, where the technology is listed in the Defence and Strategic Goods List;

                     (b)  provide defence services to another person in relation to goods, where the goods are listed in the Defence and Strategic Goods List;

                     (c)  provide defence services to another person in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List;

the activity would prejudice the security, defence or international relations of Australia, the Minister may give the person a notice:

                     (d)  prohibiting the person from doing the activity; or

                     (e)  prohibiting the person from doing the activity unless conditions specified in the notice are complied with.

Note:          Section 67 deals with giving notices under this Act.

             (2)  A notice given to a person under subsection (1) must set out the Minister’s reasons for giving the notice.

Note:          Section 68 deals with disclosing reasons for decisions.

Period notice in force

             (3)  A notice given to a person under subsection (1) comes into force at the time the person receives the notice. This subsection is subject to subsection (5).

             (4)  A notice given to a person under subsection (1) remains in force for the period specified in, or worked out in accordance with, the notice (which must not be more than 12 months), unless revoked earlier.

Later notices

             (5)  A notice may be given to a person under subsection (1) while an earlier notice given to the person under subsection (1) is in force. The later notice may be expressed to come into force at the time the earlier notice ceases to be in force.

             (6)  Subsection (5) does not prevent a notice being given to a person under subsection (1) after an earlier notice given to the person under subsection (1) ceases to be in force.

Notice not a legislative instrument

             (7)  A notice under subsection (1) is not a legislative instrument.

Revoking a notice

             (8)  The Minister may, by writing, revoke a notice given to a person under subsection (1).

             (9)  The Minister must give the person notice of the revocation. The revocation takes effect at the time the person receives the notice.

Note:          Section 67 deals with giving notices under this Act.

Offence

           (10)  A person commits an offence if:

                     (a)  the person does one of the following activities:

                              (i)  supplies technology relating to goods, where the technology is listed in the Defence and Strategic Goods List;

                             (ii)  provides defence services in relation to goods, where the goods are listed in the Defence and Strategic Goods List;

                            (iii)  provides defence services in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List; and

                     (b)  the activity contravenes a notice, or a condition specified in a notice, that is in force under subsection (1); and

                     (c)  the person knows of the contravention.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

           (11)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (10).


 

Division 2Brokering offences

15  Offence—arranging supplies and provision of defence services in relation to the Defence and Strategic Goods List

             (1)  A person (the first person) commits an offence if:

                     (a)  one of the following applies:

                              (i)  the first person arranges for another person to supply goods, where the goods are listed in the Defence and Strategic Goods List and the supply is, or is to be, from a place outside Australia to another place outside Australia;

                             (ii)  the first person arranges for another person to supply technology relating to goods, where the technology is listed in the Defence and Strategic Goods List and the supply is, or is to be, from a place outside Australia to another place outside Australia;

                            (iii)  the first person arranges for another person to provide defence services in relation to goods, where the goods are listed in the Defence and Strategic Goods List and the defence services are, or are to be, received at a place outside Australia;

                            (iv)  the first person arranges for another person to provide defence services in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List and the defence services are, or are to be, received at a place outside Australia; and

                     (b)  either:

                              (i)  the first person does not hold a permit under section 16 authorising the arrangement; or

                             (ii)  the arrangement contravenes a condition of a permit that the first person holds under section 16.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Exceptions

             (2)  Subsection (1) does not apply if:

                     (a)  the first person is a member of the Australian Defence Force, an APS employee, a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; and

                     (b)  he or she does the arranging in the course of his or her duties as such a person.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.

             (3)  Subsection (1) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

             (4)  Subsection (1) does not apply if:

                     (a)  the first person arranges for another person to supply goods, or to supply technology relating to goods, where the supply is, or is to be, from a place in a foreign country to another place in that country; and

                     (b)  that country is a Participating State for the purposes of the Wassenaar Arrangement.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

Geographical jurisdiction

             (5)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

Definitions

             (6)  In this section:

place includes:

                     (a)  a vehicle, vessel or aircraft; and

                     (b)  an area of water; and

                     (c)  a fixed or floating structure or installation of any kind.

Wassenaar Arrangement means the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual‑Use Goods and Technologies, adopted in Vienna, Austria, on 11 and 12 July 1996, as amended from time to time.

16  Permits for purposes of section 15

             (1)  A registered broker may apply to the Minister for a permit under this section to:

                     (a)  arrange for another person to supply goods, where the goods are listed in the Defence and Strategic Goods List; or

                     (b)  arrange for another person to supply technology relating to goods, where the technology is listed in the Defence and Strategic Goods List; or

                     (c)  arrange for another person to provide defence services in relation to goods, where the goods are listed in the Defence and Strategic Goods List; or

                     (d)  arrange for another person to provide defence services in relation to technology relating to goods, where the technology is listed in the Defence and Strategic Goods List.

Note:          Section 66 sets out application requirements.

             (2)  An application under subsection (1) may:

                     (a)  be for more than one arrangement; and

                     (b)  be for a particular arrangement, where the activity covered by the arrangement is for a period described in the application.

Example 1: For paragraph (a)—a registered broker applies for a permit to arrange for company A to supply goods and to arrange for company B to supply technology relating to goods.

Example 2: For paragraph (b)—a registered broker applies for a permit to arrange for company A to supply goods for a 3‑year period.

Minister’s decision

             (3)  If a registered broker makes an application under subsection (1) in accordance with section 66, the Minister must decide whether or not to give the broker a permit for each arrangement covered by the application.

             (4)  The Minister may give the broker a permit for a specified arrangement if the Minister is satisfied that the activity covered by the arrangement would not prejudice the security, defence or international relations of Australia.

Note:          Section 67 deals with giving permits under this Act.

             (5)  A permit given by the Minister may:

                     (a)  be for more than one arrangement; and

                     (b)  be for a specified arrangement, where the activity covered by the arrangement is for a period specified in, or worked out in accordance with, the permit.

             (6)  If the Minister refuses to give the broker a permit for an arrangement covered by the application, the Minister must give the broker notice of the refusal and the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Permit conditions

             (7)  A permit given to a registered broker is subject to any conditions specified in the permit.

Note:          Section 17 deals with changing permit conditions.

Revoking a permit

             (8)  The Minister may, by writing, revoke a permit given to a registered broker under this section.

Note:          See also subsection 23(3) (about automatic revocation of a permit under this section upon cancellation of the broker’s registration).

             (9)  However, the Minister may revoke the permit only if the Minister is satisfied that any activity covered by an arrangement authorised by the permit would prejudice the security, defence or international relations of Australia.

           (10)  The Minister must give the broker notice of the revocation and the reasons for the revocation. The revocation takes effect at the time the broker receives the notice.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

17  Changing permit conditions

Imposing new conditions

             (1)  After giving a registered broker a permit under section 16, the Minister may impose a new permit condition by giving the broker notice of the condition. The notice must include the reasons for imposing the new condition.

Removing or varying conditions

             (2)  The Minister may remove or vary a condition of the permit by giving the broker notice of the removal or variation. For a variation of a condition, the notice must include the reasons for the variation.

When new conditions or variations take effect

             (3)  The imposition of a new permit condition under subsection (1), or the variation of a permit condition under subsection (2), takes effect at the time specified in the notice, which must be at least 7 days after the day on which the notice is given.

             (4)  However, the notice may specify that the new permit condition or the variation takes effect at the time the broker receives the notice if the Minister is satisfied that the new permit condition or variation needs to take effect then for reasons of urgency.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

18  Breaching permit conditions

             (1)  A registered broker commits an offence if:

                     (a)  the broker is the holder of a permit under section 16; and

                     (b)  the broker does an act or omits to do an act; and

                     (c)  the act or omission breaches a condition of the permit.

Penalty:  60 penalty units.

             (2)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).


 

Division 3Registered brokers

19  Applying to be a registered broker

                   A person may apply to the Minister to be registered as a broker under this Division.

Note 1:       Section 66 sets out application requirements.

Note 2:       Only a registered broker is able to obtain a permit under Division 2. A person may commit an offence under that Division for engaging in certain conduct without a permit.

20  Registering brokers

Minister’s decision

             (1)  If a person makes an application under section 19 in accordance with section 66, the Minister must decide whether or not to register the person as a broker under this Division.

             (2)  The Minister must, in writing, register the person as a broker under this Division if the Minister is satisfied that the person is a fit and proper person.

             (3)  In determining whether the person is a fit and proper person, the Minister must have regard to:

                     (a)  any conviction of the person of an offence against a law of the Commonwealth, a State, a Territory or a foreign country punishable by imprisonment for 12 months or longer, if that offence was committed within the 10 years immediately before the application for registration; and

                     (b)  if the person has been previously registered under this Division—whether the person breached a condition of that registration or whether that registration was cancelled; and

                     (c)  if the person has been given a permit under this Part—whether the person has breached a condition of that permit; and

                     (d)  the financial position of the person; and

                     (e)  whether the application for registration contains information that is false or misleading; and

                      (f)  if the person is a body corporate—the following matters in relation to a manager of the body corporate:

                              (i)  any conviction of the manager of an offence covered by paragraph (a);

                             (ii)  the financial position of the manager.

The Minister may have regard to any other matters that the Minister considers appropriate.

             (4)  If the Minister is not satisfied that the person is a fit and proper person, the Minister must refuse to register the person as a broker under this Division.

Notice of decision

             (5)  The Minister must give the person notice of the Minister’s decision on the application. For a decision refusing registration, the notice must set out the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Period of registration

             (6)  If the Minister registers the person as a broker under this Division, the Minister must specify in the notice under subsection (5) the day on which the registration begins. The registration is for a period of 5 years, unless cancelled earlier.

Note:          Section 21 deals with renewing registration and section 23 deals with cancelling registration.

Conditions of registration

             (7)  A registered broker’s registration is subject to any conditions specified in the notice under subsection (5).

Note:          Section 22 deals with changing conditions of registration.

21  Renewing registration

Application for renewal

             (1)  A registered broker may apply to the Minister to renew the person’s registration (the current registration).

Note:          Section 66 sets out application requirements.

             (2)  An application under subsection (1) must be made at least 3 months but not more than 6 months before the current registration is due to end.

Minister’s decision

             (3)  If a person makes an application under subsection (1) in accordance with subsection (2) and section 66, the Minister must decide whether or not to renew the person’s current registration.

             (4)  The Minister must, in writing, renew the person’s current registration if the Minister is satisfied that the person is a fit and proper person.

             (5)  In determining whether a person is a fit and proper person, the Minister must have regard to:

                     (a)  any conviction of the person of an offence against a law of the Commonwealth, a State, a Territory or a foreign country punishable by imprisonment for 12 months or longer, if that offence was committed within the 10 years immediately before the application for renewal; and

                     (b)  whether the person has breached a condition of the current registration; and

                     (c)  if the person has been given a permit under this Part—whether the person has breached a condition of that permit; and

                     (d)  the financial position of the person; and

                     (e)  whether the application for renewal contains information that is false or misleading; and

                      (f)  if the person is a body corporate—the following matters in relation to a manager of the body corporate:

                              (i)  any conviction of the manager of an offence covered by paragraph (a);

                             (ii)  the financial position of the manager.

The Minister may have regard to any other matters that the Minister considers appropriate.

             (6)  If the Minister is not satisfied that the person is a fit and proper person, the Minister must refuse to renew the person’s current registration.

Notice of decision

             (7)  The Minister must give the person notice of the Minister’s decision on the application. For a decision refusing renewal, the notice must set out the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Minister renews registration before expiry of registration

             (8)  If the Minister renews the person’s current registration before the end of the period of that registration and that registration is not cancelled before the end of that period:

                     (a)  that registration is renewed for a period of 5 years beginning on the day after the last day of the current registration, unless cancelled earlier; and

                     (b)  that registration is renewed subject to the conditions applying to the current registration immediately before the renewal begins.

Note:          Section 23 deals with cancelling registration and section 22 deals with changing conditions of registration.

Minister does not renew registration before expiry of registration

             (9)  If the Minister has not made a decision on the application before the end of the last day (the expiry day) of the current registration:

                     (a)  that registration is taken to continue after the expiry day until the person receives notice of the Minister’s decision on the application, unless the registration is cancelled earlier; and

                     (b)  if the Minister renews the person’s current registration:

                              (i)  that registration is renewed for a period of 5 years beginning on the day after the expiry day, unless cancelled earlier; and

                             (ii)  the conditions applying to the current registration immediately before the Minister’s decision continue to apply after the Minister’s decision.

Note:          Section 23 deals with cancelling registration and section 22 deals with changing conditions of registration.

Example:    An individual’s registration is due to end on 31 October (the expiry day). On 1 June the individual applies to renew the registration. The Minister has not decided the application by the end of 31 October.

                   The registration continues automatically past 31 October until the Minister decides the application. The conditions applying to the registration at the end of 31 October will continue to apply after 31 October and these may be changed under section 22.

                   On 1 December the Minister renews the individual’s registration. The registration is renewed for a period of 5 years beginning on 1 November.

                   The conditions applying to the registration immediately before the Minister’s decision on 1 December will continue to apply after that decision.

Registration may be renewed more than once

           (10)  A registered broker’s registration may be renewed more than once under this section.

22  Changing registration conditions

Imposing new conditions

             (1)  After registering a person as a broker under this Division, the Minister may impose a new condition on the broker’s registration by giving the broker notice of the condition. The notice must include the reasons for imposing the new condition.

Removing or varying conditions

             (2)  The Minister may remove or vary a condition of a registered broker’s registration by giving the broker notice of the removal or variation. For a variation of a condition, the notice must include the reasons for the variation.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

23  Cancelling the registration of a broker

             (1)  The Minister may, by writing, cancel the registration of a registered broker:

                     (a)  if the Minister is satisfied that the broker has breached a condition of the registration; or

                     (b)  if the Minister is satisfied that the broker has breached a condition of a permit given to the broker under this Part; or

                     (c)  if the broker is convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country punishable by imprisonment for 12 months or longer; or

                     (d)  if the Minister is satisfied that the broker’s application under section 19 for the registration, or an application by the broker under subsection 21(1) to renew the registration, contained information that was false or misleading; or

                     (e)  in any other circumstances that the Minister considers appropriate.

             (2)  The Minister must give the broker notice of the cancellation and the reasons for the cancellation. The cancellation takes effect at the time the broker receives the notice.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Automatic revocation of permits

             (3)  If the Minister cancels a person’s registration as a registered broker, any permit held by the person under section 16 is taken to be revoked at the time that cancellation takes effect.

24  Register of Brokers

             (1)  The Secretary is to maintain a register, to be known as the Register of Brokers, in which the Secretary includes the following details for each registered broker:

                     (a)  the name of the broker;

                     (b)  the day on which the broker’s registration is due to end;

                     (c)  a statement as to whether the broker’s registration is subject to conditions.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Department’s website.

             (4)  The Register is not a legislative instrument.

25  Extended meaning of conviction

                   A reference in this Division to a person convicted of an offence includes a reference to a person in respect of whom an order has been made relating to the offence under:

                     (a)  section 19B of the Crimes Act 1914; or

                     (b)  a corresponding provision of a law of a State, a Territory or a foreign country.

Note:          Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.


 

Part 3Defense Trade Cooperation Treaty

Division 1Preliminary

26  Simplified outline

                   The following is a simplified outline of this Part:

•      This Part implements the Defense Trade Cooperation Treaty between Australia and the United States of America.

•      There is a process for approving bodies corporate as members of the Australian Community referred to in Article 4(1)(c) of the Treaty and for suspending or cancelling approvals.

•      There are offences relating to Article 3(1) US Defence Articles and Article 3(3) US Defence Articles.

•      There are provisions dealing with the transition to the Treaty.


 

Division 2Membership of the Australian Community

27  Approval of bodies corporate as members of the Australian Community

             (1)  A person who is a body corporate may apply to the Minister for approval as a member of the Australian Community referred to in Article 4(1)(c) of the Defense Trade Cooperation Treaty.

Note 1:       Section 66 sets out application requirements.

Note 2:       The offences in section 10 (about supplies and provision of defence services relating to the Defence and Strategic Goods List) may not apply to the holder of an approval.

Minister’s decision

             (2)  If a person makes an application under subsection (1) in accordance with section 66, the Minister must, in writing, approve, or refuse to approve, the person as a member of the Australian Community.

             (3)  In deciding whether to approve the person as a member of the Australian Community, the Minister must have regard to:

                     (a)  whether the person has access to a facility that is included, or that is capable of being included, on a list, managed by the Department, of facilities accredited for storing and handling classified information and material; and

                     (b)  any conviction of the person of:

                              (i)  an offence against this Act or the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995; or

                             (ii)  an offence against the Customs Act 1901 or regulations made under that Act; or

                            (iii)  an offence against the Arms Export Control Act of the United States of America (22 United States Code, Chapter 39) or the International Traffic in Arms Regulations (22 Code of Federal Regulations, Parts 120‑130) made under that Act;

                            if that offence was committed within the 10 years immediately before the application for approval; and

                     (c)  whether the person’s holding of such an approval would prejudice the security, defence or international relations of Australia; and

                     (d)  whether the application for approval contains information that is false or misleading; and

                     (e)  the extent of any foreign ownership or control (whether direct or indirect) of the body corporate; and

                      (f)  the following matters in relation to a manager of the body corporate:

                              (i)  any conviction of the manager of an offence covered by paragraph (b);

                             (ii)  whether the manager is an Australian citizen.

The Minister may have regard to any other matters that the Minister considers appropriate.

             (4)  The Minister must not approve the person as a member of the Australian Community unless the Minister is satisfied that the Government of the United States of America has agreed in writing to the approval being given.

             (5)  If the Minister approves the person as a member of the Australian Community, the Minister must give the person the approval.

Note 1:       Section 67 deals with giving approvals under this Act.

Note 2:       Section 28 deals with approval conditions.

             (6)  If the Minister refuses to approve the person as a member of the Australian Community, the Minister must give the person notice of the refusal and the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

When approval begins

             (7)  If the Minister approves the person as a member of the Australian Community, the Minister must specify in the approval the day on which the approval begins.

Extended meaning of conviction

             (8)  A reference in this section to a person convicted of an offence includes a reference to a person in respect of whom an order has been made relating to the offence under:

                     (a)  section 19B of the Crimes Act 1914; or

                     (b)  a corresponding provision of a law of the United States of America.

Note:          Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.

Approval not a legislative instrument

             (9)  An approval under this section is not a legislative instrument.

28  Approval conditions

Conditions of an approval

             (1)  An approval given to a person under section 27 is subject to:

                     (a)  any conditions specified in the approval; and

                     (b)  a condition that the person must allow an authorised officer, in accordance with section 41, to enter any premises referred to in that section for the purpose of finding out whether the person has complied with this Part or Part 6 or another condition of the approval; and

Note:       Part 4 sets out the monitoring powers that an authorised officer may exercise in relation to those premises.

                     (c)  any conditions prescribed by the regulations in relation to:

                              (i)  access to Article 3(1) US Defence Articles or Article 3(3) US Defence Articles in the person’s possession, custody or control; or

                             (ii)  access to technology relating to original goods, being technology in the person’s possession, custody or control; and

                     (d)  any conditions prescribed by the regulations in relation to:

                              (i)  investigating or reporting the loss, theft or destruction of Article 3(1) US Defence Articles or Article 3(3) US Defence Articles in the person’s possession, custody or control; or

                             (ii)  investigating or reporting the loss, theft or destruction of technology relating to original goods, being technology in the person’s possession, custody or control; and

                     (e)  any conditions prescribed by the regulations in relation to:

                              (i)  the marking, handling or storing of Article 3(1) US Defence Articles or Article 3(3) US Defence Articles in the person’s possession, custody or control; or

                             (ii)  the marking, handling or storing of technology relating to original goods, being technology in the person’s possession, custody or control; and

                      (f)  in relation to defence services provided by the person in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or to technology relating to original goods—any conditions prescribed by the regulations in relation to the provision, by the person to the recipient of the services, of documentation:

                              (i)  for defence services provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article—identifying the goods; or

                             (ii)  for defence services provided in relation to technology relating to original goods—identifying the technology and the goods; and

                     (g)  any conditions prescribed by the regulations in relation to the person giving reports relating to the person’s compliance with this Act and the regulations; and

                     (h)  any conditions prescribed by the regulations in relation to Australian Defence Articles (within the meaning of the regulations) in the person’s possession, custody or control.

Changing approval conditions

             (2)  After giving the approval, the Minister may impose a new approval condition by giving the person notice of the condition. The notice must include the reasons for imposing the new condition.

             (3)  The Minister may remove or vary a condition of the approval imposed under paragraph (1)(a) or subsection (2) by giving the person notice of the removal or variation. For a variation of a condition, the notice must include the reasons for the variation.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Ordinary offence

             (4)  A person commits an offence if:

                     (a)  the person is the holder of an approval under section 27; and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches a condition of the approval; and

                     (d)  the condition is one covered by paragraph (1)(c), (d), (e) or (f) of this section.

Penalty:  600 penalty units.

Strict liability offence

             (5)  A person commits an offence if:

                     (a)  the person is the holder of an approval under section 27; and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches a condition of the approval.

Penalty:  300 penalty units.

             (6)  An offence against subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Geographical jurisdiction

             (7)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (4) or (5).

Notice not a legislative instrument

             (8)  A notice under subsection (2) or (3) is not a legislative instrument.

29  Suspending an approval

             (1)  The Minister may, by writing, suspend an approval given to a person under section 27:

                     (a)  if the Minister reasonably believes that the person has contravened a provision of this Act; or

                     (b)  if the Minister reasonably believes that the person has breached a condition of the approval; or

                     (c)  if the Minister is satisfied that the person’s holding of the approval prejudices the security, defence or international relations of Australia; or

                     (d)  if the Minister is satisfied that the person’s application under section 27 for the approval contained information that was false or misleading; or

                     (e)  if the Minister is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which the Minister gave the approval; or

                      (f)  in any other circumstances prescribed by the regulations for the purposes of this paragraph.

             (2)  The Minister must give the person notice of the suspension and the reasons for the suspension. The suspension takes effect at the time the person receives the notice.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

             (3)  The Minister must specify in the notice under subsection (2):

                     (a)  a period of suspension (which must not be more than 60 days); or

                     (b)  one or more conditions for the lifting of the suspension.

Lifting of suspension

             (4)  If 2 or more conditions are specified for the lifting of the suspension, one of them may be that a specified period of suspension has ended (which must not be more than 60 days).

             (5)  If:

                     (a)  the Minister specifies one or more conditions for the lifting of the suspension; and

                     (b)  the Minister is satisfied that those conditions have been met;

the Minister may, by notice given to the person, lift the suspension. The suspension is lifted at the time the person receives the notice.

Note:          Section 67 deals with giving notices under this Act.

Effect of suspension

             (6)  Subject to subsection (7), the holder of an approval under section 27 that is suspended under this section is taken not to hold the approval at any time while the suspension has effect.

             (7)  If an approval given to a body corporate under section 27 is suspended under this section:

                     (a)  for the purposes of the application of sections 28, 31, 32 and 33, Part 4 and subsection 58(3) to the body corporate—the body corporate is taken to continue to hold the approval while the suspension has effect; and

                     (b)  for the purposes of the application of sections 31, 32 and 33 to a person referred to in paragraph (c) of the definition of Australian Community member in subsection 4(1)—the body corporate is taken to continue to hold the approval while the suspension has effect.

             (8)  An approval under section 27 may be cancelled under section 30 even while it is suspended under this section.

Non‑legislative instruments

             (9)  The following are not legislative instruments:

                     (a)  a suspension under this section;

                     (b)  a notice under subsection (5).

30  Cancelling an approval

             (1)  The Minister may, by writing, cancel an approval given to a person under section 27:

                     (a)  if the Minister reasonably believes that the person has contravened a provision of this Act; or

                     (b)  if the Minister reasonably believes that the person has breached a condition of the approval; or

                     (c)  if the Minister is satisfied that the person’s holding of the approval prejudices the security, defence or international relations of Australia; or

                     (d)  if the Minister is satisfied that the person’s application under section 27 for the approval contained information that was false or misleading; or

                     (e)  if the person requests the Minister, in writing, to cancel the approval; or

                      (f)  if the Minister is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which the Minister gave the approval; or

                     (g)  in any other circumstances prescribed by the regulations for the purposes of this paragraph.

             (2)  The Minister must give the person notice of the cancellation and the reasons for the cancellation. The cancellation takes effect at the time the person receives the notice.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

             (3)  A cancellation under this section is not a legislative instrument.


 

Division 3Main offences

31  US Defence Articles listed in the Defense Trade Cooperation Munitions List

Dealings outside Australia and the USA

             (1)  An Australian Community member (the supplier) commits an offence if:

                     (a)  the supplier supplies goods, or supplies technology relating to goods, where the supply is to a place that is outside Australia and is outside the United States of America; and

                     (b)  the supply is of goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the supply is of technology relating to original goods; and

                     (c)  there is no notice in force under subsection (8) in relation to the supplier and the supply; and

                     (d)  at the time of the supply, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the supply is of original goods or is of technology relating to original goods—the original goods;

                             (ii)  if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

             (2)  An Australian Community member (the provider) commits an offence if:

                     (a)  the provider provides defence services in relation to goods or in relation to technology relating to goods, where the defence services are received at a place that is outside Australia and is outside the United States of America; and

                     (b)  the defence services are provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the defence services are provided in relation to technology relating to original goods; and

                     (c)  there is no notice in force under subsection (8) in relation to the provider and the provision of the defence services; and

                     (d)  at the time of the provision of the defence services, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the defence services are provided in relation to original goods or in relation to technology relating to original goods—the original goods;

                             (ii)  if the defence services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Dealings in Australia or the USA outside the Treaty framework

             (3)  An Australian Community member (the supplier) commits an offence if:

                     (a)  the supplier supplies goods, or supplies technology relating to goods, where the supply is to a place in Australia or in the United States of America; and

                     (b)  the supply is of goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the supply is of technology relating to original goods; and

                     (c)  the supply is to none of the following:

                              (i)  the Commonwealth;

                             (ii)  an Australian Community member;

                            (iii)  an Australian Community facility;

                            (iv)  a member of the United States Community; and

                     (d)  there is no notice in force under subsection (8) in relation to the supplier and the supply; and

                     (e)  at the time of the supply, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the supply is of original goods or is of technology relating to original goods—the original goods;

                             (ii)  if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

             (4)  An Australian Community member (the provider) commits an offence if:

                     (a)  the provider provides defence services in relation to goods or in relation to technology relating to goods, where the defence services are received at a place in Australia or in the United States of America; and

                     (b)  the defence services are provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the defence services are provided in relation to technology relating to original goods; and

                     (c)  the provision of the defence services is to none of the following:

                              (i)  the Commonwealth;

                             (ii)  an Australian Community member;

                            (iii)  a member of the United States Community; and

                     (d)  there is no notice in force under subsection (8) in relation to the provider and the provision of the defence services; and

                     (e)  at the time of the provision of the defence services, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the defence services are provided in relation to original goods or in relation to technology relating to original goods—the original goods;

                             (ii)  if the defence services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Dealings in Australia or the USA within the Treaty framework

             (5)  An Australian Community member (the supplier) commits an offence if:

                     (a)  the supplier supplies goods, or supplies technology relating to goods, where the supply is to:

                              (i)  a place in Australia or in the United States of America; and

                             (ii)  the Commonwealth, an Australian Community member, an Australian Community facility or a member of the United States Community; and

                     (b)  the supply is of goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the supply is of technology relating to original goods; and

                     (c)  neither of the following apply:

                              (i)  the supply is for an activity referred to in Article 3(1)(a), (b) or (c) of the Defense Trade Cooperation Treaty, being an activity that is publicly identified in accordance with paragraph (5) of Section 2 of the Implementing Arrangements;

                             (ii)  the supply is for an activity referred to in Article 3(1)(d) of the Defense Trade Cooperation Treaty, being an activity that is open to participation by Australian Community members as mentioned in paragraph (1)(b) of Section 3 of the Implementing Arrangements; and

                     (d)  there is no notice in force under subsection (8) in relation to the supplier and the supply; and

                     (e)  at the time of the supply, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the supply is of original goods or is of technology relating to original goods—the original goods;

                             (ii)  if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

             (6)  An Australian Community member (the provider) commits an offence if:

                     (a)  the provider provides defence services in relation to goods or in relation to technology relating to goods, where the defence services are received:

                              (i)  at a place in Australia or in the United States of America; and

                             (ii)  by the Commonwealth, an Australian Community member or a member of the United States Community; and

                     (b)  the defence services are provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the defence services are provided in relation to technology relating to original goods; and

                     (c)  neither of the following apply:

                              (i)  the defence services are for an activity referred to in Article 3(1)(a), (b) or (c) of the Defense Trade Cooperation Treaty, being an activity that is publicly identified in accordance with paragraph (5) of Section 2 of the Implementing Arrangements;

                             (ii)  the defence services are for an activity referred to in Article 3(1)(d) of the Defense Trade Cooperation Treaty, being an activity that is open to participation by Australian Community members as mentioned in paragraph (1)(b) of Section 3 of the Implementing Arrangements; and

                     (d)  there is no notice in force under subsection (8) in relation to the provider and the provision of the defence services; and

                     (e)  at the time of the provision of the defence services, the following is listed in Part 1 of the Defense Trade Cooperation Munitions List:

                              (i)  if the defence services are provided in relation to original goods or in relation to technology relating to original goods—the original goods;

                             (ii)  if the defence services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Exception—regulations

             (7)  Subsection (1), (2), (3), (4), (5) or (6) does not apply in the circumstances prescribed by the regulations for the purposes of this subsection.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7): see subsection 13.3(3) of the Criminal Code.

Notice approving supply or provision of defence services

             (8)  The Minister may, by notice given to an Australian Community member, approve one or more supplies, or approve the provision of one or more defence services, specified in the notice.

Note:          Section 67 deals with giving notices under this Act.

Geographical jurisdiction

             (9)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against this section.

Notice not a legislative instrument

           (10)  A notice under subsection (8) is not a legislative instrument.

Definition

           (11)  In this section:

place includes:

                     (a)  a vehicle, vessel or aircraft; and

                     (b)  an area of water; and

                     (c)  a fixed or floating structure or installation of any kind.

32  US Defence Articles exempt from the scope of the Defense Trade Cooperation Treaty

Dealings in US Defence Articles prior to authorisation

             (1)  An Australian Community member commits an offence if:

                     (a)  the member supplies goods or supplies technology relating to goods; and

                     (b)  the supply is of goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the supply is of technology relating to original goods; and

                     (c)  at the time of the supply, the following is listed in Part 2 of the Defense Trade Cooperation Munitions List:

                              (i)  if the supply is of original goods or is of technology relating to original goods—the original goods;

                             (ii)  if the supply is of incorporated goods—any of the original goods incorporated in the incorporated goods; and

                     (d)  at the time of the supply, there is neither a licence or other authorisation granted by the Government of the United States of America, nor a notice under subsection (4), in force in relation to the Australian Community member and in relation to:

                              (i)  if the supply is of original goods—the original goods; or

                             (ii)  if the supply is of incorporated goods—each of the original goods incorporated in the incorporated goods and listed as described in subparagraph (c)(ii); or

                            (iii)  if the supply is of technology relating to original goods—the technology.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

             (2)  An Australian Community member commits an offence if:

                     (a)  the member provides defence services in relation to goods or in relation to technology relating to goods; and

                     (b)  the defence services are provided in relation to goods that are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the defence services are provided in relation to technology relating to original goods; and

                     (c)  at the time of the provision of the defence services, the following is listed in Part 2 of the Defense Trade Cooperation Munitions List:

                              (i)  if the defence services are provided in relation to original goods or in relation to technology relating to original goods—the original goods;

                             (ii)  if the defence services are provided in relation to incorporated goods—any of the original goods incorporated in the incorporated goods; and

                     (d)  at the time of the provision of the defence services, there is neither a licence or other authorisation granted by the Government of the United States of America, nor a notice under subsection (4), in force in relation to the Australian Community member and in relation to:

                              (i)  if the defence service are provided in relation to original goods—the original goods; or

                             (ii)  if the defence services are provided in relation to incorporated goods—each of the original goods incorporated in the incorporated goods and listed as described in subparagraph (c)(ii); or

                            (iii)  if the defence services are provided in relation to technology relating to original goods—the technology.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Control of US Defence Articles after authorisation

             (3)  An Australian Community member commits an offence if:

                     (a)  the member has goods, or technology relating to goods, in the member’s possession, custody or control; and

                     (b)  the goods in the member’s possession, custody or control are an Article 3(1) US Defence Article or an Article 3(3) US Defence Article or the technology in the member’s possession, custody or control is technology relating to original goods; and

                     (c)  the following is listed in Part 2 of the Defense Trade Cooperation Munitions List:

                              (i)  if the goods in the member’s possession, custody or control are original goods or the technology in the member’s possession, custody or control is technology relating to original goods—the original goods;

                             (ii)  if the goods in the member’s possession, custody or control are incorporated goods—any of the original goods incorporated in the incorporated goods; and

                     (d)  a notice under subsection (4) is in force in relation to the Australian Community member and in relation to:

                              (i)  if the goods in the member’s possession, custody or control are original goods—the original goods; or

                             (ii)  if the goods in the member’s possession, custody or control are incorporated goods—any of the original goods incorporated in the incorporated goods; or

                            (iii)  if the technology in the member’s possession, custody or control is technology relating to original goods—the technology; and

                     (e)  the Australian Community member contravenes a condition specified in the notice.

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Note:          See also section 35 (about transition to the Defense Trade Cooperation Treaty).

Notices

             (4)  The Minister may give an Australian Community member a notice in relation to:

                     (a)  specified goods; or

                     (b)  specified technology relating to specified goods.

The notice may specify one or more conditions that apply in relation to the Australian Community member and the goods referred to in paragraph (a) or the technology referred to in paragraph (b).

Note:          Section 67 deals with giving notices under this Act.

Geographical jurisdiction

             (5)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against this section.

Notice not a legislative instrument

             (6)  A notice under subsection (4) is not a legislative instrument.


 

Division 4Ministerial directions

33  Ministerial directions—avoiding prejudice to the security, defence or international relations of Australia

             (1)  The Minister may, by writing, direct all Australian Community members not to:

                     (a)  supply to a specified member of the United States Community goods listed in the Defence and Strategic Goods List, or technology relating to such goods, that are neither an Article 3(1) US Defence Article nor an Article 3(3) US Defence Article; and

                     (b)  provide to a specified member of the United States Community defence services in relation to goods listed in the Defence and Strategic Goods List, or in relation to technology relating to such goods, that are neither an Article 3(1) US Defence Article nor an Article 3(3) US Defence Article.

             (2)  The Minister may give a direction under subsection (1) only if the Minister is satisfied that it is necessary to do so in order to avoid prejudice to the security, defence or international relations of Australia.

Revocation

             (3)  The Minister may, by writing, revoke a direction under subsection (1).

Notice to approval holders

             (4)  The Minister must give each person who holds an approval under section 27 notice of the following:

                     (a)  a direction under subsection (1);

                     (b)  a revocation under subsection (3).

Note:          Section 67 deals with giving notices under this Act.

Publication

             (5)  The Minister must publish the following on the Department’s website:

                     (a)  a direction under subsection (1);

                     (b)  a revocation under subsection (3).

Offence

             (6)  An Australian Community member commits an offence if:

                     (a)  the member supplies goods or technology relating to goods or provides defence services in relation to goods or in relation to technology relating to goods; and

                     (b)  the supply, or the provision of the defence services, contravenes a direction that is in force under subsection (1); and

                     (c)  the member knows of the contravention; and

                     (d)  there is no notice in force under subsection (7) in relation to the member and the supply or the provision of the defence services (as the case may be).

Penalty:  Imprisonment for 10 years or 2,500 penalty units, or both.

Notice approving supply or provision of defence services

             (7)  The Minister may, by notice given to an Australian Community member, approve one or more supplies, or approve the provision of one or more defence services, specified in the notice.

Note:          Section 67 deals with giving notices under this Act.

Geographical jurisdiction

             (8)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (6).

Non‑legislative instruments

             (9)  The following are not legislative instruments:

                     (a)  a direction under subsection (1);

                     (b)  a notice under subsection (7).

34  Ministerial directions—suspension or cancellation of approvals

Suspension of approvals

             (1)  If under Division 2 the Minister suspends an approval given to a person under section 27, the Minister may give the person a notice directing the person to:

                     (a)  take specified action; or

                     (b)  refrain from taking specified action;

in relation to either or both of the following:

                     (c)  Article 3(1) US Defence Articles or Article 3(3) US Defence Articles in the person’s possession, custody or control at the time the suspension takes effect;

                     (d)  technology relating to original goods, being technology in the person’s possession, custody or control at the time the suspension takes effect.

Note:          Section 67 deals with giving notices under this Act.

             (2)  A notice given to a person under subsection (1) comes into force at the time the person receives the notice.

             (3)  A notice given to a person under subsection (1) ceases to be in force once the suspension ceases to have effect.

Cancellation of approvals

             (4)  If under Division 2 the Minister cancels an approval given to a person under section 27, the Minister may give the person a notice directing the person to:

                     (a)  take specified action; or

                     (b)  refrain from taking specified action;

in relation to either or both of the following:

                     (c)  Article 3(1) US Defence Articles or Article 3(3) US Defence Articles in the person’s possession, custody or control at the time the cancellation takes effect;

                     (d)  technology relating to original goods, being technology in the person’s possession, custody or control at the time the cancellation takes effect.

Note:          Section 67 deals with giving notices under this Act.

             (5)  A notice given to a person under subsection (4) comes into force at the time the person receives the notice.

             (6)  The Minister may, by writing, revoke a notice given to a person under subsection (4).

             (7)  The Minister must give the person notice of the revocation. The revocation takes effect at the time the person receives the notice.

Note:          Section 67 deals with giving notices under this Act.

Offence

             (8)  A person commits an offence if:

                     (a)  a notice given to the person under subsection (1) or (4) is in force; and

                     (b)  the person fails to comply with the notice.

Penalty:  12,500 penalty units.

             (9)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (8).

Notice not a legislative instrument

           (10)  A notice under subsection (1) or (4) is not a legislative instrument.


 

Division 5Other matters

35  Transition to the Defense Trade Cooperation Treaty

             (1)  This section applies if:

                     (a)  a person who is an Australian Community member received (at any time before or after the person became an Australian Community member) goods (the transition goods), or technology (the transition technology) relating to goods, from a member of the United States Community; and

                     (b)  the member of the United States Community provided the goods or technology under a licence or other authorisation granted by the Government of the United States of America; and

                     (c)  the person applies to the Minister for a notice under subsection (2).

Note:          Section 66 sets out application requirements.

Approving transition to Treaty

             (2)  If a person makes an application under subsection (1) in accordance with section 66 and the Minister is satisfied that the requirements prescribed by the regulations for the purposes of this subsection are satisfied in relation to the person, the Minister may give the person a notice specifying one or more of the following:

                     (a)  the transition goods are taken to be an Article 3(1) US Defence Article within the meaning of subsection 5(1);

                     (b)  the transition goods are taken to be an Article 3(3) US Defence Article within the meaning of subsection 5(4);

                     (c)  the transition technology is taken to be technology relating to an Article 3(1) US Defence Article within the meaning of subsection 5(1);

                     (d)  the transition technology is taken to be technology relating to an Article 3(3) US Defence Article within the meaning of subsection 5(4).

Note 1:       Goods incorporating transition goods are also an Article 3(1) US Defence Article or an Article 3(3) US Defence Article: see subsections 5(2) and (5).

Note 2:       Section 67 deals with giving notices under this Act.

             (3)  A notice given to a person under subsection (2) comes into force at the time the person receives the notice.

             (4)  A notice under subsection (2) has effect according to its terms.

Refusing to approve transition to Treaty

             (5)  If the Minister refuses to give the person a notice under subsection (2), the Minister must give the person notice of the refusal and the reasons for the refusal.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Notice not a legislative instrument

             (6)  A notice under subsection (2) is not a legislative instrument.

36  Defense Trade Cooperation Munitions List

             (1)  The Minister must make a document to be known as the Defense Trade Cooperation Munitions List.

             (2)  The document must contain 2 Parts.

             (3)  Part 1 is to contain a list of goods that are within the scope of the Defense Trade Cooperation Treaty. The goods listed in Part 1 must be either or both of the following:

                     (a)  goods listed in the Defence and Strategic Goods List;

                     (b)  goods listed in the United States Munitions List referred to in Article 1(1)(n) of the Defense Trade Cooperation Treaty.

             (4)  Part 2 is to contain a list of goods that are exempt from the scope of the Defense Trade Cooperation Treaty.

             (5)  The document made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the document.


 

Part 4Monitoring powers

Division 1Preliminary

37  Simplified outline

                   The following is a simplified outline of this Part:

•      If a person holds an approval under section 27, an authorised officer may enter certain premises at any reasonable time of day for the purpose of finding out whether the person has complied with Part 3 or 6 or a condition of the approval.

•      The authorised officer must give the person at least 24 hours’ notice of the officer’s intention to enter the premises.

•      An authorised officer who enters premises may exercise monitoring powers. The authorised officer may be assisted by other persons if that assistance is necessary and reasonable.

38  No limit on section 71

                   This Part does not limit section 71 (forfeiture).


 

Division 2Appointment of authorised officers and issue of identity cards

39  Appointment of authorised officers

             (1)  The Secretary may, in writing, appoint any of the following persons as an authorised officer for the purposes of this Part:

                     (a)  a member of the Australian Defence Force who holds the rank of warrant officer or a higher rank;

                     (b)  an APS employee who holds an APS 6 position, or an equivalent or higher position, in the Department.

             (2)  The Secretary must not appoint a person as an authorised officer unless the Secretary is satisfied that the person has suitable qualifications and experience to properly exercise the powers of an authorised officer.

             (3)  An authorised officer must, in performing functions or exercising powers as an authorised officer, comply with any directions of the Secretary.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

40  Identity cards

             (1)  The Secretary must issue an identity card to an authorised officer.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain the information prescribed by the regulations; and

                     (c)  contain a recent photograph of the authorised officer.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised officer; and

                     (c)  the person does not, within 7 days of so ceasing, return the identity card to the Secretary.

Penalty:  5 penalty units.

Note:          Section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to an offence against subsection (3).

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code.

Authorised officer must carry card

             (6)  An authorised officer must carry his or her identity card at all times when performing functions or exercising powers as an authorised officer.


 

Division 3Powers of authorised officers

41  Authorised officer may enter premises

             (1)  If a person holds an approval under section 27, then, for the purpose of finding out whether the person has complied with Part 3 or 6 or a condition of the approval, an authorised officer may:

                     (a)  enter the following premises at any reasonable time of day:

                              (i)  any premises the person specified in the application for approval as premises at which Article 3(1) US Defence Articles or Article 3(3) US Defence Articles may be kept;

                             (ii)  any premises the person subsequently informs the Minister in writing are premises at which Article 3(1) US Defence Articles or Article 3(3) US Defence Articles are being, or may be, kept;

                            (iii)  any premises in Australia used, wholly or partly, by the person for the purposes of business operations of the person, except premises used as a place of residence; and

                     (b)  exercise the monitoring powers set out in section 42.

             (2)  However, an authorised officer must not enter premises under subsection (1) unless the officer has given the holder of the approval at least 24 hours’ notice of the officer’s intention to do so.

42  Monitoring powers of authorised officers

             (1)  The following are the monitoring powers that an authorised officer may exercise in relation to premises under section 41:

                     (a)  the power to search the premises and any thing on the premises;

                     (b)  the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;

                     (c)  the power to make any still or moving image or any recording of the premises or any thing on the premises;

                     (d)  the power to inspect any document on the premises;

                     (e)  the power to make copies of any such document;

                      (f)  the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers set out in this section in relation to the premises;

                     (g)  the powers set out in subsections (2), (3) and (5).

Powers relating to electronic equipment

             (2)  The monitoring powers include the power to operate electronic equipment on the premises to see whether:

                     (a)  the equipment; or

                     (b)  a disk, tape or other storage device that:

                              (i)  is on the premises; and

                             (ii)  can be used with the equipment or is associated with it;

contains information that is relevant to finding out whether the holder of the approval concerned has complied with Part 3 or 6 or a condition of the approval.

             (3)  The monitoring powers include the following powers in relation to information described in subsection (2) found in the exercise of the power under that subsection:

                     (a)  the power to operate electronic equipment on the premises to put the information in documentary form and remove the documents so produced from the premises;

                     (b)  the power to operate electronic equipment on the premises to transfer the information to a disk, tape or other storage device that:

                              (i)  is brought to the premises for the exercise of the power; or

                             (ii)  is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises or another person who apparently represents the occupier;

                            and remove the disk, tape or other storage device from the premises.

             (4)  An authorised officer may operate electronic equipment as mentioned in subsection (2) or (3) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Securing things

             (5)  The monitoring powers include the power to secure a thing for a period not exceeding 24 hours if:

                     (a)  the thing is found during the exercise of monitoring powers on the premises; and

                     (b)  an authorised officer believes on reasonable grounds that:

                              (i)  the thing affords evidence of the commission of an offence against Part 3 or 6; and

                             (ii)  it is necessary to secure the thing in order to prevent it from being concealed, lost or destroyed before a warrant to seize the thing is obtained; and

                            (iii)  the circumstances are serious and urgent.

Note:          The Crimes Act 1914 contains provisions allowing the issue of warrants to seize things.

43  Authorised officer may require person to answer questions or produce documents

Requirement to answer questions

             (1)  If:

                     (a)  an authorised officer enters premises under section 41; and

                     (b)  the authorised officer believes on reasonable grounds that a person present at the premises is capable of answering a question relating to whether the holder of the approval concerned has complied with Part 3 or 6 or a condition of the approval;

the authorised officer may require the person to answer the question put by the authorised officer.

Requirement to produce documents

             (2)  If:

                     (a)  an authorised officer enters premises under section 41; and

                     (b)  the authorised officer believes on reasonable grounds that a person present at the premises is capable of producing a document relating to whether the holder of the approval concerned has complied with Part 3 or 6 or a condition of the approval;

the authorised officer may require the person to produce the document requested by the authorised officer.

Offence

             (3)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1) or (2); and

                     (b)  the person fails to comply with the requirement.

Penalty for contravention of this subsection:        Imprisonment for 6 months.

Note:          Section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to an offence against subsection (3).

44  Self‑incrimination

             (1)  A person is not excused from answering a question or producing a document under section 43 on the ground that the answer to the question or the production of the document might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the answer given or the document produced; and

                     (b)  answering the question or producing the document; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of the answering of the question or producing the document;

are not admissible in evidence against the individual in criminal proceedings other than:

                     (d)  proceedings for an offence against subsection 43(3); or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.


 

Division 4Obligations of authorised officers

45  Announcement before entry

                   Before entering premises under section 41, an authorised officer must:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises.

46  Occupier to be informed of rights and responsibilities

                   If:

                     (a)  one or more authorised officers enter premises under section 41; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

one of those officers must, as soon as practicable, inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 5.


 

Division 5Occupier’s rights and responsibilities

47  Occupier entitled to observe search

             (1)  If an authorised officer enters premises under section 41 and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the occupier or other person is entitled to observe the search being conducted.

             (2)  The right to observe the search being conducted ceases if the occupier or other person impedes the search.

             (3)  This section does not prevent 2 or more areas of the premises being searched at the same time.

48  Occupier to provide authorised officer with facilities and assistance

             (1)  The occupier of premises entered under section 41, or another person who apparently represents the occupier, must provide:

                     (a)  an authorised officer exercising monitoring powers; and

                     (b)  any person assisting the authorised officer;

with all reasonable facilities and assistance for the effective exercise of their powers.

             (2)  A person commits an offence if:

                     (a)  the person is subject to subsection (1); and

                     (b)  the person fails to comply with that subsection.

Penalty for contravention of this subsection:        30 penalty units.

Note:          Section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to an offence against subsection (2).


 

Division 6Other matters

49  Tampering etc. with things secured

                   A person commits an offence if:

                     (a)  a thing has been secured under subsection 42(5); and

                     (b)  the person tampers or interferes with, or destroys, the thing.

Penalty:  Imprisonment for 6 months.

Note:          Section 14.1 of the Criminal Code (standard geographical jurisdiction) applies to an offence against this section.

50  Persons assisting authorised officers

Authorised officers may be assisted by other persons

             (1)  An authorised officer may, in entering premises under section 41 and in exercising monitoring powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised officer.

Powers of a person assisting the authorised officer

             (2)  A person assisting the authorised officer may:

                     (a)  enter the premises; and

                     (b)  exercise monitoring powers in relation to the premises, but only in accordance with a direction given to the person by the authorised officer.

             (3)  A power exercised by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.

             (4)  If a direction is given under paragraph (2)(b) in writing, the direction is not a legislative instrument.

51  Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of electronic equipment being operated as mentioned in this Part:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  In this section:

damage, in relation to data, includes damage by erasure of data or addition of other data.


 

Part 5Information‑gathering powers

  

52  Secretary may obtain information and documents

Scope

             (1)  This section applies to a person if the Secretary believes on reasonable grounds that the person has information or a document that is relevant to the operation of this Act.

Requirement

             (2)  The Secretary may, by notice given to the person, require the person:

                     (a)  to give to the Secretary, within the period and in the manner specified in the notice, any such information; or

                     (b)  to produce to the Secretary, within the period and in the manner specified in the notice, any such documents; or

                     (c)  to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

Note:          Section 67 deals with giving notices under this Act.

             (3)  The period specified in a notice given under subsection (2) must be at least 14 days after the notice is given.

             (4)  A notice under subsection (2) must set out the effect of the following provisions:

                     (a)  subsection (5);

                     (b)  section 137.1 of the Criminal Code (about giving false or misleading information);

                     (c)  section 137.2 of the Criminal Code (about producing false or misleading documents).

Offence

             (5)  A person commits an offence if:

                     (a)  the person is given a notice under subsection (2); and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 6 months.

             (6)  Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (5).

53  Copying documents—compensation

                   A person is entitled to be paid by the Secretary, on behalf of the Commonwealth, reasonable compensation for complying with a requirement covered by paragraph 52(2)(c).

54  Secretary may inspect and copy original documents

                   The Secretary may:

                     (a)  inspect a document produced under paragraph 52(2)(b); and

                     (b)  make and retain copies of the whole or a part of such a document.

55  Secretary may retain copies of documents

                   The Secretary may inspect, and retain possession of, a copy of a document produced under paragraph 52(2)(c).

56  Secretary may retain original documents

             (1)  The Secretary may take, and retain for as long as is reasonably necessary, possession of a document produced under paragraph 52(2)(b).

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.

57  Self‑incrimination

             (1)  A person is not excused from giving information or producing a document under section 52 on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information given or the document produced; and

                     (b)  giving the information or producing the document; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document;

are not admissible in evidence against the individual in criminal proceedings other than:

                     (d)  proceedings for an offence against subsection 52(5); or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.


 

Part 6Record‑keeping

  

58  Making and retaining records

Permit holders under Part 2

             (1)  A person must make a separate record of each activity that the person does under a permit given to the person under section 11. The person must make the record within 7 days of doing the activity.

             (2)  A person must make a separate record of each arrangement that the person makes under a permit given to the person under section 16. The person must make the record within 7 days of making the arrangement.

Approval holders under section 27

             (3)  A person who holds an approval under section 27 must make a separate record of each activity that the person does that is prescribed by the regulations for the purposes of this subsection. The person must make the record within 7 days of doing the activity.

Form of record

             (4)  A record under this section must contain the information prescribed by the regulations for the purposes of this subsection. The regulations may prescribe different information for different kinds of records.

Retention of record

             (5)  The person must retain the record for 5 years after making it.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is required to make or retain a record in accordance with this section; and

                     (b)  the person does not make or retain the record in accordance with this section.

Penalty:  30 penalty units.

             (7)  An offence against subsection (6) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (8)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (6).

59  Production of records

             (1)  The Secretary may, by notice given to a person who is required to make records under section 58, require the person to produce to the Secretary, within the period and in the manner specified in the notice, such of those records as are specified in the notice.

Note:          Section 67 deals with giving notices under this Act.

             (2)  The period specified in a notice given under subsection (1) must be at least 14 days after the notice is given.

             (3)  A notice under subsection (1) must set out the effect of the following provisions:

                     (a)  subsection (4);

                     (b)  section 137.1 of the Criminal Code (about giving false or misleading information);

                     (c)  section 137.2 of the Criminal Code (about producing false or misleading documents).

Offence

             (4)  A person commits an offence if:

                     (a)  the person is given a notice under subsection (1); and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 6 months.

             (5)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (4).

60  Secretary may inspect and copy records

                   The Secretary may inspect a record produced under this Part and may make and retain copies of the whole or a part of the record.

61  Secretary may retain records

             (1)  The Secretary may take, and retain for as long as is reasonably necessary, possession of a record produced under this Part.

             (2)  The person otherwise entitled to possession of the record is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the person otherwise entitled to possession of the record, or a person authorised by that person, to inspect and make copies of the record.

62  Self‑incrimination

             (1)  A person is not excused from producing a record under this Part on the ground that the production of the record might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the record; and

                     (b)  producing the record; and

                     (c)  any information, document or thing obtained as a direct or indirect consequence of producing the record;

are not admissible in evidence against the individual in criminal proceedings other than:

                     (d)  proceedings for an offence against subsection 58(6) or 59(4); or

                     (e)  proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Part.


 

Part 7Review of decisions

  

63  Reviewable decisions

                   For the purposes of this Part, each of the following decisions of the Minister is a reviewable decision:

                     (a)  a decision under section 11 to refuse to give a person a permit for an activity covered by the person’s application for a permit;

                     (b)  a decision under section 11 to revoke a permit;

                     (c)  a decision under subsection 11(7) or 12(1) to impose a permit condition or a decision under subsection 12(2) to vary a permit condition;

                     (d)  a decision under section 16 to refuse to give a person a permit for an arrangement covered by the person’s application for a permit;

                     (e)  a decision under section 16 to revoke a permit;

                      (f)  a decision under subsection 16(7) or 17(1) to impose a permit condition or a decision under subsection 17(2) to vary a permit condition;

                     (g)  a decision under section 20 to refuse to register a person as a broker;

                     (h)  a decision under section 21 to refuse to renew a person’s registration as a broker;

                      (i)  a decision under subsection 20(7) or 22(1) to impose a registration condition or a decision under subsection 22(2) to vary a registration condition;

                      (j)  a decision under section 23 to cancel a person’s registration as a broker;

                     (k)  a decision under section 27 to refuse to approve a person as a member of the Australian Community;

                      (l)  a decision under paragraph 28(1)(a) or subsection 28(2) to impose an approval condition or a decision under subsection 28(3) to vary an approval condition;

                    (m)  a decision under section 29 to suspend an approval;

                     (n)  a decision under section 30 to cancel an approval;

                     (o)  a decision under section 35 to refuse to give a person a notice under subsection 35(2).

64  Internal review by Minister of reviewable decisions

Scope

             (1)  This section applies to a reviewable decision if the decision is made by a delegate of the Minister.

Request for review

             (2)  A person affected by a reviewable decision who is dissatisfied with the decision may request the Minister to review the decision.

             (3)  The request must be made by written notice given to the Minister within 30 days, or such longer period as the Minister allows (either before or after the end of the 30 days), after the day on which the person is informed of the decision.

             (4)  The request must set out the reasons it is made.

Review of reviewable decision

             (5)  On receiving the person’s request, the Minister must review the reviewable decision personally.

             (6)  The Minister may:

                     (a)  affirm, vary or set aside the reviewable decision; and

                     (b)  if he or she sets aside the decision, make such other decision as he or she thinks appropriate.

Notice of decision

             (7)  The Minister must give the person notice of the decision under subsection (6), of the reasons for that decision and of the person’s right to have that decision reviewed by the Administrative Appeals Tribunal. Failure to give notice does not affect the validity of that decision.

Note 1:       Section 67 deals with giving notices under this Act.

Note 2:       Section 68 deals with disclosing reasons for decisions.

Affirmation of reviewable decision by operation of law

             (8)  The Minister is taken, under this section, to have affirmed the reviewable decision if the person does not receive notice of the Minister’s decision on the review of the reviewable decision within 90 days after the person requested the Minister to review the reviewable decision.

65  Review by the Administrative Appeals Tribunal

                   Applications may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a reviewable decision made by the Minister personally; or

                     (b)  a decision made by the Minister under section 64.


 

Part 8Other matters

  

66  Applications under Part 2 or 3

             (1)  An application under a provision of Part 2 or 3 must:

                     (a)  be in the form approved by the Minister for the purposes of that provision; and

                     (b)  contain the information required by the form; and

                     (c)  be accompanied by any documents that the form requires; and

                     (d)  be accompanied by the fee (if any) prescribed by the regulations.

             (2)  The Minister may request an applicant to give the Minister such additional information as the Minister considers necessary to enable the Minister to decide the application.

             (3)  The Minister may approve in writing a form for the purposes of a provision of Part 2 or 3.

67  Notices, permits and approvals under this Act

             (1)  A notice, permit or approval required or permitted by this Act to be given to a person must be given to the person by one of the methods prescribed by the regulations.

             (2)  If a notice, permit or approval is given to a person under this Act by one of those methods, then, for the purposes of this Act, the person is taken to have received the notice, permit or approval at the time prescribed by, or worked out in accordance with, the regulations.

             (3)  This section has effect despite any provision in the Electronic Transactions Act 1999.

68  Disclosure of reasons for decisions

Decisions made by the Minister personally

             (1)  If:

                     (a)  a decision under this Act is made by the Minister personally; and

                     (b)  reasons for the decision must be given in a notice under this Act;

the notice must not disclose any reasons whose disclosure the Minister believes would prejudice the security, defence or international relations of Australia.

Decisions made by delegates of the Minister

             (2)  If:

                     (a)  a decision under this Act is made by a delegate of the Minister under a delegation under section 73; and

                     (b)  reasons for the decision must be given in a notice under this Act; and

                     (c)  the delegate believes that the disclosure of some or all of the reasons would prejudice the security, defence or international relations of Australia;

then:

                     (d)  the delegate must refer the particular case to the Minister; and

                     (e)  if the Minister believes that the disclosure of some or all of the reasons would prejudice the security, defence or international relations of Australia—the Minister must inform the delegate of those reasons and the notice must not disclose those reasons.

Notification

             (3)  If reasons are not disclosed in a notice under this Act because of subsection (1) or (2), that fact must be stated in the notice.

69  Disclosure of information and documents

             (1)  The Secretary may disclose any information, or give any document, obtained or generated for the purposes of this Act, to any of the following for a purpose connected with the administration of this Act (including the performance of a function, or the exercise of a power, under this Act):

                     (a)  a Minister of the Commonwealth, a State or a Territory;

                     (b)  the head (however described) of a Commonwealth entity;

                     (c)  a State or Territory entity;

                     (d)  a foreign government entity;

                     (e)  a person or entity specified in an instrument under subsection (2).

             (2)  The Minister may, by legislative instrument, specify a person or entity for the purposes of paragraph (1)(e).

             (3)  The Secretary may disclose information under subsection (1) only if the Secretary is satisfied that the recipient of the information will not disclose the information to anyone else without the Secretary’s consent.

             (4)  The Secretary may give a document under subsection (1) only if the Secretary is satisfied that the recipient of the document will not disclose any of the contents of the document to anyone else without the Secretary’s consent.

Relationship with other laws

             (5)  Subsection (1) applies despite:

                     (a)  a law of the Commonwealth other than this section; and

                     (b)  a law of a State or a Territory.

Definitions

             (6)  In this section:

Commonwealth entity means:

                     (a)  an Agency (within the meaning of the Financial Management and Accountability Act 1997); or

                     (b)  a Commonwealth authority (within the meaning of the Commonwealth Authorities and Companies Act 1997).

foreign government entity means:

                     (a)  the government of a foreign country or of part of a foreign country; or

                     (b)  an authority of the government of a foreign country; or

                     (c)  an authority of the government of part of a foreign country.

State or Territory entity means:

                     (a)  a State or Territory; or

                     (b)  an authority of a State or Territory.

70  Injunctions

Restraining injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage, in conduct that is or would be an offence against this Act, the Federal Court of Australia may, on application by the Minister, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the Court’s opinion, it is desirable to do so—requiring the person to do a thing.

Performance injunctions

             (2)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do a thing; and

                     (b)  the refusal or failure is or would be an offence against this Act;

the Federal Court of Australia may, on application by the Minister, grant an injunction requiring the person to do that thing.

Interim injunctions

             (3)  Before deciding an application for an injunction under subsection (1) or (2), the Federal Court of Australia may grant an interim injunction:

                     (a)  restraining a person from engaging in conduct; or

                     (b)  requiring a person to do a thing.

Discharging or varying injunctions

             (4)  The Federal Court of Australia may discharge or vary an injunction granted under this section.

Certain limits on granting injunctions not to apply

             (5)  The power of the Federal Court of Australia under this section to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind.

             (6)  The power of the Federal Court of Australia under this section to grant an injunction requiring a person to do a thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; and

                     (b)  whether or not the person has previously refused or failed to do that thing.

Other powers of the Federal Court unaffected

             (7)  The powers conferred on the Federal Court of Australia under this section are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise.

71  Forfeiture

             (1)  If a person supplies, or attempts to supply, goods in contravention of this Act, the goods, and any thing in which they are contained, are forfeited to the Commonwealth.

             (2)  If a person supplies, or attempts to supply, technology relating to goods in contravention of this Act, the technology, and any thing that contains the technology and is used or involved in the contravention or attempted contravention, are forfeited to the Commonwealth.

Seizure

             (3)  Each of the following persons may, without warrant, seize any goods, technology or thing that is forfeited, or that the person has reasonable grounds to believe is forfeited, to the Commonwealth under subsection (1) or (2) and take the goods, technology or thing before a court of summary jurisdiction:

                     (a)  a member of the Australian Defence Force;

                     (b)  a member or special member of the Australian Federal Police or a member of the police force of a State or Territory;

                     (c)  an officer of Customs (within the meaning of the Customs Act 1901).

Role of court of summary jurisdiction

             (4)  If goods, technology or a thing is taken before a court of summary jurisdiction under subsection (3):

                     (a)  the court must inquire into the matter; and

                     (b)  the court must:

                              (i)  if the court is satisfied that the goods, technology or thing is forfeited—order that the goods, technology or thing be condemned; or

                             (ii)  if the court is not so satisfied—order that the goods, technology or thing be delivered to whoever the court is satisfied is entitled to the goods, technology or thing.

             (5)  Before inquiring into a matter in accordance with subsection (4), a court of summary jurisdiction may require notice of the inquiry to be given to anyone that the court thinks appropriate.

Pending prosecutions

             (6)  If a prosecution is pending for an offence against this Act connected with the goods, technology or thing, an order for the condemnation, or for the delivery to a person, of the goods, technology or thing must not be made until the prosecution is determined.

Storage of things

             (7)  Goods, technology or a thing seized under subsection (3) must be stored in accordance with the procedures prescribed by the regulations. This must be done until an order is made under subsection (4).

Destruction etc. of things

             (8)  Goods, technology or a thing condemned must be destroyed or otherwise dealt with in accordance with the procedures prescribed by the regulations. This must be done as soon as practicable after it is determined that the goods, technology or thing is condemned.

             (9)  Until the condemned goods, technology or thing is so destroyed or otherwise dealt with, the condemned goods, technology or thing must be stored in accordance with the procedures prescribed by the regulations.

72  Evidential certificates by Minister

             (1)  The Minister may certify in writing that a notice under subsection 14(1) was in force in relation to a specified person on a specified day.

             (2)  In any proceeding, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.

73  Delegation by Minister

             (1)  The Minister may, by writing, delegate all or any of the Minister’s functions or powers under this Act or the regulations to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department; or

                     (c)  an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department.

Note:          The expressions APS employee, SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (2)  However, subsection (1) does not apply to the Minister’s functions or powers under subsection 11(8), section 14, subsection 16(8), Part 3 or section 64, 68 or 72.

Delegation of functions or powers under Part 3

             (3)  The Minister may, by writing, delegate all or any of the Minister’s functions or powers under section 27 or 28 or subsection 31(8) or 32(4) to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department; or

                     (c)  an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department.

             (4)  The Minister may, by writing, delegate all or any of the Minister’s functions or powers under section 29, 35 or 36 to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department.

             (5)  However, subsection (4) does not apply to the Minister’s power under paragraph 29(1)(c).

Limitations

             (6)  In performing functions or exercising powers under a delegation under this section, the delegate must comply with any directions of the Minister.

             (7)  A delegate must not make a decision of a kind mentioned in column 1 of an item in the following table if the delegate is satisfied that the thing mentioned in column 2 of that item would prejudice the security, defence or international relations of Australia:

 

Decisions of delegates

 


Item

Column 1
Decision

Column 2
Thing

1

A decision under section 11 to refuse to give a person a permit for an activity covered by the person’s application for a permit

The activity

2

A decision under section 16 to refuse to give a person a permit for an arrangement covered by the person’s application for a permit

The activity covered by the arrangement

3

A decision under section 27 to refuse to approve a person as a member of the Australian Community

The person’s holding of such an approval

             (8)  If subsection (7) applies:

                     (a)  the delegate must refer the particular case to the Minister; and

                     (b)  the Minister must decide the case personally.

74  Delegation by Secretary

             (1)  The Secretary may, by writing, delegate all or any of the Secretary’s functions or powers under this Act or the regulations to:

                     (a)  an SES employee, or acting SES employee, in the Department; or

                     (b)  an APS employee who holds, or is acting in, an Executive Level 2, or equivalent, position in the Department.

Note:          The expressions APS employee, SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (2)  However, subsection (1) does not apply to the Secretary’s powers under section 39.

             (3)  In performing functions or exercising powers under a delegation under this section, the delegate must comply with any directions of the Secretary.

75  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.